1. In this case the petitioner has been convicted for an offence under Section 380, Penal Code and sentenced to six months' rigorous imprisonment and to pay a fine of Rs. 200/- in default to rigorous imprisonment for 11/2 months-The prosecution case is that on 6th May 1948 a marriage party consisting of P. Ws. 2 to 5, 8 and 9 boarding a train at Kovvur railway station left behind on the platform the trunk M. O. 1 consisting of very valuable gold and silver ornaments worth about Rs. 10,000/-. They discovered it late in the afternoon of that day and gave a complaint at their place of destination. In the meantime, a railway licensed cooly P. W. 1 is said to have seen this box on the platform of the Kovvur railway station. He removed it and is said to have kept it in the room of the Assistant Station Master. Subsequently it was found missing even from that room. The petitioner is a pointsman attached to the railway station of Kovvur. At the preliminary investigation held by the police nothing was discovered. It appears that P. W. l, the cooly, and also the Assistant Station Master and this accused were suspected in the beginning. While the investigation WAS Still going on, on 2nd June 1948 when the Railway Circle Inspector, P. W. 14, was in the station in connection with the investigation of this case, it is stated that the petitioner produced before him the trunk box and made a statement which is contained in Ex. P. 1. There he states that as he was searching for the missing box so as to be relieved of the scandal he found the box in a well near the Trunk Road. The box undoubtedly contained the valuable jewels which have been identified by the party as belonging to them. The case against the accused rest mainly on the production of this box before the Police and this evidence was further sought to be strengthened by the evidence of P. Ws. 1 and 13, the railway cooly and the Assistant Station Master, who stated at the trial that they saw the accused going with a box on the day when the box was left in the Station Master's room. The lower appellate Court finds that there is no direct evidence of the commission of the offence by the accused but that P. Ws. 1 and 13 'were aware of the existence of the trunk unclaimed and of subsequent removal by the petitioner to its place of hiding where it lay and it was taken out by the petitioner and produced before P. W. 14 in the presence of mediators' and adds that these two witnesses, P. Ws. 1 and 13, had managed to screen the facts from the investigating officers till 2nd June 1948. After going through the evidence of P. Ws. 1 and 13, I have no doubt that these statements were an afterthought and were intended to avert the suspicion that had already fallen on them and to fasten the blame on the petitioner. The statement therefore of these two witnesses that they saw the petitioner carrying the box cannot be accepted. The result is that there is only one piece of evidence, viz., that the petitioner produced the box on 2nd June 1948 with an explanation given by him contained in Ex. P 1. The question under these circumstances is whether the presumption under Section 114, Evidence Act can be drawn against the petitioner. Under Section 114(a) a Court may presume that a man who is in possession of stolen goods soon after theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession. In this case he has certainly made a statement at the time of the production of the box itself which contains an account for his possession. No attempt has been made by the prosecution in the lower Court to show that this explanation given by the petitioner is false. As pointed out in Rex v. Schama; Rex. v. Abramovich, (1915) 31 T. L. R. 881 84 L. J. K. B. 396: 'It the jury thought that the explanation which has been given might reasonably be true, although they were not convinced that it was true, the prisoner was entitled to be acquitted, because the Crown would have failed to discharge the onus imposed upon it by the law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner. In such oases the burden of proof never changed; it always rested upon the prosecution.'
This has been followed in Rex. v. Gripberg, (1917) 33 T. L. R. 428 where Darling J. states the law as follows :
'If the prisoner gave the explanation it was still for the prosecution to satisfy the jury that he was guilty, and in that sense the burden of proof was always on the prosecution. It never so shifted on to the prisoner that the prosecution had a right to say, 'If the prisoner does not prove himself innocent he ought to be convicted'. To the very last it was for the prosecution to prove that the prisoner was guilty.'
In Emperor v. Horilal, 56 ALL. 250: A. I. R. 193) ALL. 893 : (193) Cri. L. J. 621 Bajpai J. referring to Section 114 quotes from Bhutnath v. Emperor, A. I. R. 1931 Cal. 617: (1931) Cri.L. J. 40 the following words of Ghosh J.
'This does not mean that the accused must prove affirmatively that he came by the goods innocently. It id sufficient if he can give an explanation which may raise doubt in the mind of the Court as to the guilt of the accused.'
Again quoting Lort Williams J. in the same judgment he states that,
'If he (the accused) gives any explanation which in the opinion of the jury may possibly be true, although they do not necessarily believe it, then the Crown can not rely upon the presumption and must prove the guilt of the accused just as in any other criminal case.'
The above observations clearly show that if the accused gives an explanation as to how he came by the possession of the stolen articles, which explanation may possibly be true, the onus still lies on the prosecution to prove the guilt of the accused. It should not merely rest content by asking the Court to draw the presumption under Section 114. In this case, as pointed out already, the prosecution has not discharged its onus. The explanation may possibly be true and it has not been shown to be false and, in the circumstances, the conviction cannot be sustained. The accused is acquitted and the fine, if paid, will be refunded.