1. The petitioner was the first of three accused in C.C. No. 965 of 1943 on the file of the Stationary Sub-Magistrate of Kovur. All the accused were charged with offences under Sections 457 and 380 or Section 411 of the Penal Code. The 2nd and 3rd accused were acquitted. The first accused was convicted by the Stationary Sub-Magistrate of an offence under Section 411 only and sentenced to undergo simple imprisonment for six months. On appeal the conviction and sentence were confirmed by the Sub-Divisional Magistrate of Kavali.
2. The prosecution case was that P.W. 1--a well-to-do ryot of Kovur on the morning of the 25th June, 1942, found that seven bulls which he had tied up in a shed the previous night were missing. News reached him on the 26th that the bulls had been seen in the possession of the accused and on the 27th of June, the bulls and the accused were detained at the village some thirty or forty miles from Kovur. The 2nd and 3rd accused are the servants of the first accused. The defence of the first accused was that he had purchased the bulls from P.W. 1, and he examined witnesses who supported his defence.
3. There is no reason, in my opinion, to question in revision the view taken by both the lower Courts that the evidence of the defence witnesses could not be believed. Apart from the fact that P.W. 1 did not know the first accused before and had no conceivable reason for bringing a false case against him, it is noteworthy that when he was first cross-examined on the 1st August, 1942, the suggestion that the first accused had purchased the bulls from him was not put to him. It was only in the course of his further cross-examination on the 8th of October, 1942, that he was first asked whether the 1st accused had not bought the bulls from him for Rs. 700.
4. The Stationary Sub-Magistrate, although he rejected the evidence for the defence, convicted the 1st accused only of an offence punishable under Section 411, Indian Penal Code because, rather surprisingly, he did not believe that the bulls had been stolen from the shed. The reasons for his belief, the validity of which may well be doubted, need not be examined for the purposes of this revision petition The bub-Divisional Magistrate in his judgment confined himself substantially to a consideration of the evidence for the defence which, he was of opinion had rightly been rejected by the Stationary Sub-Magistrate. He does not seem however to have noticed that the Sub-Magistrate had found that the bulls had' not been stolen from the shed, or if he did notice it, he does not seem to have thought that it had any bearing on the propriety of the conviction under Section 411 of the Penal Code. He said merely after he had given his reasons for rejecting the case for the defence. There is nothing improbable in the prosecution story. There is nothing wrong in the conviction under Section 411, Indian Penal Code.' The Sub-Divisional Magistrate also does not seem to have thought that his finding that the bulls had not been stolen from the shed gave rise to any difficulties with regard to the charge under Section 411, Indian Penal Code. He said : ' It cannot be said that the bulls were stolen from the shed. It is quite possible that the bulls might have strayed away having been kept loose in the fields'; and he gives some effect to this finding when he finally concludes that accused is guilty under Section 411, Indian Penal Code of dishonestly receiving or retaining stolen property knowing or having reason to believe the same to be stolen; or of dishonestly retaining it, having received it honestly What he has really found, as appears from the judgment read as a whole, although he does not say so very clearly, is that the first accused must be presumed to have committed an offence punishable under Section 411, Indian Penal Code because he has not accounted for his possession of seven bulls which had been criminally misappropriated.
5. The argument pressed on me in support of the revision petition is based on the finding of the Stationary Sub-Magistrate that the bulls were not stolen from the shed. It is argued, first, that if the bulls were not stolen it cannot be presumed under Section 114 of the Evidence Act either that the 1st accused was the thief or that he received the goods knowing them to have been stolen and secondly, that it was not proved that the bulls were criminally misappropriated'or if it is held that it was so proved, that the presumption which arises under Section 114 of the Evidence Act, in regard to goods which have been the subject of theft does not arise in regard to goods which have been criminally misappropriated. In support of this argument I have been referred to a case decided by Kuppuswami Ayyar, J., in Venkataswami, In re 1. In that case certain persons who had sold cattle lost by the complainants to one of the witnesses in the case were convicted of offences under Section 379 or 411 of the Penal Code. The cattle, however, had been lost owing to the scattering of a drove as the result of a rumour that there was a panther about, and consequently there was no theft. The question in the criminal revision case was, therefore, whether in these circumstances a conviction under Section 411 could be sustained. Kuppuswami Ayyar, J., held that it could not He was of opinion that the property obtained by the criminal misappropriation would be stolen property; but that no presumption could be drawn that a person in possession of property obtained by criminal misappropriation had received the property knowing it to be stolen because illustration (a) to Section 114 of the Evidence Act relates only to stolen property obtained by committing theft. With great respect I am unable to agree. The illustrations to Section 114 of the Evidence Act are not exhaustive. They do not restrict presumptions regarding the existence of farts to the facts covered by the illustrations. On the contrary, if a question arises as to whether the existence of a particular fact may be presumed the criterion must he in the words of Section 114 whether the Court ' thinks it likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.' A Court may and, in appropriate circumstances, will presume that a man who is in possession of stolen goods soon after the theft, is either the thief, or has received the goods knowing them to be stolen, unless he can account for his possession because, if he cannot account for his possession he is likely to be the thief or to have received the goods knowing them to have been stolen. Under Section 410 of the Penal Code property which has been criminally misappropriated is designated ' stolen property' and there seems no logical reason why a man who is in possession of stolen goods soon after they have been criminally misappropriated, if he cannot account for his possession, should be regarded as less likely to have misappropriated them or to have received them knowing them to be stolen than if they had been the subject of theft. In the present case if as the trial Court held, the bulls were not stolen they were clearly criminally misappropriated; and, as the explanation of the accused that he had purchased the bulls was rejected, it was correctly presumed at least that he had received the bulls knowing them to have been stolen. The conviction indeed should have been for the criminal misappropriation of the bulls, or, in the alternative, receiving them knowing them to be stolen. The conviction is, therefore, confirmed. The sentence is not too severe, and it may be remarked that the Sub-Magistrate has given no reason for imposing what appears in the circumstances of the case, to be the wholly inappropriate sentence of simple imprisonment. The petition is dismissed.