1. The four petitioners were convicted under S. 411, I. P. C. and sentenced to four months' rigorous imprisonment each by a 2nd class Magistrate, Bhadrak. Their appeal was dismissed by the District Magistrate and hence this revision petition.
2. During the night between the 2nd and 3rd April, 1947, some unknown culprits committed theft of a cash-box containing ornaments, cash etc., from the shop of the complainant (P.W. 1) who was then keeping a grocery shop at Dhusuri Hat. His evidence was that he went to sleep in the shop with the door open keeping the cash-box close to his feet and when he awoke at about 4 a.m. he found the box missing and then reported the occurrence to the police on 3-4-47 at about 9 a.m. In the course of the police investigation the A.S.I. Sri Narayana Prasad Mohapatra (P. W. 4) tackled the four petitioners & questioned them. Petitioner Dhruba made a statement and took the police officer to his shop and produced currency notes to the extent of Rs. 390 from a crack in the wall of his shop. Petitioner Ankur took the police officer to a Nala near the Hat and produced a medal necklace (which was subsequently identified by the complainant as part of the stolen property) from a place in the bed of the Nala concealed underground. Petitioner Pahali took the police officer to a tank and brought out a cash-box (which was also identified by the complainant) lying concealed under water. Further he took the police officer to his house and produced cash of Rs. 300/- in currency notes from the thatch. Petitioner Touli made a statement to the police officer and then took him to a mango tree and produced two gold rings from a hole in the tree. These rings were also identified by the complainant (P.w. No. 1) as part of his stolen property.
3. On the aforesaid pieces of evidence the four petitioners were charged under S. 411, I.P.C. with dishonest possession of stolen property, namely, the currency notes, the medal necklace, two gold rings and the cash-box of the complainant.
4. So far as petitioners Dhruba and Pahali are concerned, the mere fact that currency notes to the extent of Rs. 390/- and Rs. 300/-respectively were recovered from some places in their houses will not lead to an irresistible inference that they were guilty of dishonest retention of stolen currency notes. The currency notes are unidentifiable and in fact the complainant (P.W. 1) has not anywhere stated that he identified those notes as part of hit stolen property. In the charge it was clearly stated that these petitioners were in dishonest possession of the stolen cash of the complainant. It was therefore the duty of the prosecution to prove conclusively that the cash belonged to the complainant. They have totally failed to discharge their primary burden. It is true that the places where the cash was concealed are rather unusual and may indicate that the cash did not belong to the two petitioners. But that by itself could not lead to the inference that the cash belonged to the complainant. Therefore on the charge as it stand; the two petitioners are entitled to an acquittal.
5. As regards petitioners Ankur and Touli, the case rests mainly on their own production of a medal necklace and two gold rings from a Nala and from a hole in the mango tree. But there is absolutely no evidence on record to show that the mango tree belonged to either Ankur or Touli. Nor is there any evidence to show that the Nala from where the medal necklace was produced by Ankur was in the exclusive possession of that petitioner. Those places seem to be easily accessible to everyone and consequently from the mere fact that these petitioners knew the places where the stolen articles were concealed it cannot be reasonably held that they were actually in possession of such stolen properly. Mere proof of the knowledge of the place of concealment would not suffice to discharge this burden cast on the prosecution. Various alternative theories of equal probability may be put forward to account for the petitioners' knowledge of the place of concealment of the stolen property and where no conclusive inference can be drawn one way or the other the petitioners can reasonably claim to be entitled to an acquittal.
6. I should, however, point out that the trying Magistrate ought to have specifically questioned these petitioners with a view to enable them to explain the circumstances under which they were able to produce the aforesaid articles before the police officer. The examination of these petitioners under S. 342, Cr. P. C. has been done in a perfunctory manner and the petitioners can reasonably say that if they had been specifically questioned as regards these incriminating pieces of evidence they could have given reasonable explanations. I was first inclined to remand the case to the lower Court with a view to enable the trying Magistrate to further examine the petitioners under S. 342, Cr. P. C. But as the case is nearly three years old and there has already been a remand on the previous occasion I do not think it 'proper to harass the petitioners further. In any case on the evidence as proved by the prosecution it cannot be conclusively inferred that the petitioners were in possession of the stolen property of the complainant.
7. The revision petition is accordingly allow--ed and the convictions and the sentences are set aside and the petitioners are acquitted.
8. As regards the medal necklace, the cash-box and the gold rings, they have been proved to belong to the complainant and they should be delivered to him aS regards the cash of Rs. 390/- and Rs. 300/- that were recovered from the petitioners Dhruba and Pahali respectively, though I am not satisfied about the claim of the complainant to those sums I am also not satisfied that they really belonged to the petitioners as claimed by them. aS already pointed out the places where they were concealed seem to indicate that they did not belong to the petitioners. I would therefore direct that the aforesaid sums should be confiscated to the State.
9. I agree.