1. In this case the appellant was convicted of an offence under Section 411/75, I.P.C., after previous conviction, and sentenced to rigorous imprisonment for two years and a fine of Rs. 1,000 or in default rigorous imprisonment for six months, and an order under Section 565, Criminal P. C, for three years. The complainant lived at 20 Corporation Street, and he alleged that on 2nd December 1933 he went to see his family at Deoghar and returned on 4th December, when he found that a box containing ornaments and precious stones had been broken open and jewellery valued at Rs. 60,000 or Rs. 70,000 had been stolen. He gave information to the police with a list of the stolen articles. Nothing more happened until 5th June 1934, six months afterwards, when the police upon receipt of certain information sent the complainant to Cuttack. There they showed him certain ornaments which he identified.
2. The evidence of the police was that they went to the house of a woman named Nishamani Bai, who was also charged along with this appellant. She was a woman of Cuttack town. The accused Jagnarain was found in her house. On the bank of an adjoining tank was found a box containing ornaments, which Jagnarain claimed to be his. The woman had other ornaments which, she said, Jagnarain had given her. Some of these were identified by the complainant. He was able to do so because they had been for a long time in use by his wife and other members of his family. One of the pieces of jewellery was found upon the accused Jagnarain. It was alleged that some of the ornaments were not of the usual cheap bazar pattern, but were of a distinctive pattern, and this enabled the complainant more easily to identify them. There was evidence to show that at one time the accused Jagnarain lived somewhere near the complainant's house, and occasionally went there to see his servants. But no dates of these visits were given in evidence. It was further alleged that an officer had made inquiries in Jagnarain's village, and found that he was the son of a dismissed duffadar on a pay of Rs. 6 per month, and that he had been erecting a house which had cost him about. Rs. 20,000 already. The Magistrate remarked that this evidence was significant, and that it almost coincided with the theft. Although it appeared that the house was practically built before the date of theft, yet it had not then been paid for.
3. The Magistrate was much impressed by this part of the evidence and asked himself a rhetorical question 'Where did the accused get the money?' In his written statement he described himself as a Kaviraj who practised in Calcutta and it was suggested that he had a large income. This however was not supported by any evidence. On the other hand, there was evidence that he was in such poverty as prevented him from paying his rent of Rs. 6 per month, and his effects were distrained. It is clear that the evidence of the officer who visited Jagnarain's native village was not admissible being hearsay, and it was this, more than anything else, which seems to have impressed the learned Magistrate. As the case stood, so far as we are concerned with relevant evidence, it was proved that the complainant had been robbed between 2nd and 4th December 1933. It was proved also that six months afterwards some of the stolen goods were found in the possession of the appellant. That is the whole of the relevant evidence. In such circumstances it is clear that the Crown have failed to prove either theft or knowingly being in possession of stolen goods. The law provides that certain facts and circumstances may be presumed. If the presumption under Section 114, Evidence Act, which is referred to in illus. (a) could be made, it would have been possible to convict this accused either of theft or of knowingly possessing stolen goods. The goods however were found in his possession at least six months after the theft, and, in my opinion, it is not possible to rely upon the presumption in illus. (a), Section 114, owing to the length of time which elapsed between the theft and the finding of the goods in the possession of the accused. That being so, the onus is left upon the Crown to prove the guilt of the accused, either that he stole them, of which they have no evidence whatever, or that he possessed them knowing them to be stolen, of which again there was no evidence. The most that can be said is that it is suspicious that this man should have been found in possession of goods, identified by the complainant as having been stolen more than six months before. Such suspicion however is not enough to found a conviction upon, and, consequently, this conviction and sentence must be set aside and the accused acquitted.
4. I agree that the evidence is perhaps consistent with the innocence of the appellant and therefore will not disagree with the order passed by my learned brother, though I think he has taken a view of the circumstances rather formulated to the accused. They are at least most suspicious and a general presumption against him under Section 114, Evidence Act, is almost applicable. Two rather valuable and unusual ornaments out of the stolen property were found on his person, a number of others were found in the premises in which he was residing or with the woman with whom he was living. He gave no explanation of his possession of the ornaments or of the wherein that to build a house worth Rs. 20,000, and I think it is not clear on the evidence whether he commenced the house before or after the theft, up to then he was so poor that his furniture had to be attached for a rent of Rs. 6.