1. The prisoners are convicted of dishonestly receiving stolen property, first, under Section 411, in respect of the goods belonging to one person, and, second, in respect of goods belonging to another.
2. They were separately tried and sentenced on each of these charges.
3. There is no proof against them save the fact that the goods found in their possession were stolen from different persons, and were found in their possession under such circumstances as to prove a guilty knowledge on their part.
4. There is no proof as to their receipt of the goods; nothing to show that they received them at different times or from different persons. All the goods in the possession of each prisoner may have been stolen by the same thief, and may have been by him delivered to that prisoner at the same time, although stolen on different occasions.
5. If each prisoner received the goods found in his possession together at the same time, that would constitute only one offence.
6. There is nothing in the fact that the goods were stolen at different times, to constitute by itself proof that they were received at different times, or under such circumstances as to show that more than one offence was committed in receiving them.
7. It need not be considered whether, if a thief brought to a receiver, say, a coat and a ring, stolen from different persons, and on the same occasion gave them to the receiver. if he said 'Here is a coat stolen from A, take this,' and the receiver took it, and also 'here is a ring stolen from B, take this,' and the receiver took it, these acts would or would not constitute different offences, because there is nothing to show that such a case existed here.
8. Here there is nothing but possession of stolen property found concealed established; and this is consistent with only one offence having been committed, so far as receiving is concerned; but in truth the offence proved is only the retaining of stolen goods.
9. In this case, as observed, there is no proof of actual receiving ; and it has been held in England 2 Russell on Crimes citing B. v. Cordy that to constitute the offence of receiving there must be some proof that some person other than the prisoner had possession of the goods before the prisoner got possession of them; otherwise, possession of them is only proof of the stealing, which is not found here (1).
10. If this rule prevails under the Penal Code (and we see no reason why it should not), the prisoners should have been convicted of the retention of stolen goods, knowing or having reason to believe that they were stolen, of the existence of which knowledge or belief their concealment of the goods was evidence.
11. We, therefore, set aside the conviction in the second trial. The conviction in the first case we also set aside, and in lieu thereof we convict the prisoners under the same section (411) of dishonestly retaining stolen property, and sentence the prisoners on the findings in the first case, Ishan to four years, Ananda to six years, and Tushti to two years,--all in rigorous imprisonment.