Mitter and Norris, JJ.
1. In this case the prisoner has been convicted under Section 411 of the Indian Penal Code of dishonestly receiving a brass drinking cup.
2. The evidence upon the record clearly establishes that the complainant's house was broken into in October 1883, and the cup, which is abundantly identified as the complainant's property, stolen therefrom.
3. There is no evidence to connect the prisoner with the actual house-breaking; and the question we have to consider is whether there is sufficient evidence to warrant a conviction under Section 411 of the Indian Penal Code.
4. The cup was stolen in October 1883 and it was not discovered until the 4th September 1884 when, as the prosecution allege, it was produced by the prisoner to the police from under a rangi tree in the jungle. At the trial the prisoner denied that the cup was secreted in the jungle. He alleged that his little boy was playing with it in the jungle; that the Police picked it up and falsely stated that it was secreted. The prisoner also alleged that the cup was his own property.
5. It would appear from the opinion of the Assessors that it was because the prisoner failed to substantiate his assertion that the cup was his own property that they convioted him; their opinion as recorded is as follows:--' Both Assessors consider that the accused should be convicted under Section 411, Indian Penal Code, observing that he has not been able to give any proof that the property is his.'
6. We are of opinion that, independently of the evidence as to the alleged concealment of the cup, to which we shall refer presently, there was no such case made out against the prisoner as to call upon him to account for its possession.
7. No doubt the possession of stolen property immediately after it has been stolen affords a strong presumption that the person in whose possession it is, is either the actual thief, or a receiver with a guilty knowledge; and this presumption is of course strengthened, if the person, in whose possession the stolen property is, fails to give a satisfactory account of the manner in which he acquired such possession, or gives a false account, or gives accounts which are contradictory, or if the property is secreted. But the possession of stolen property, even if accompanied by a failure to give an account as to how such possession was acquired, or by a false account, or by accounts which are contradictory, or by a concealment of the property, would raise not a violent or strong presumption, but a probable presumption merely.
8. But this is not a case of very recent possession, or of possession some time afterwards, but of possession 11 months after the theft, and such possession, by itself, affords but a slight presumption against the accused, so slight that, taken by itself, he ought not to have been called upon to explain how his possession was acquired.
9. In the case of Rex v. 2 C. & P. 459; Bayley, J. said: ' The rule of law is, that if stolen property be found recently after its loss in the possession of a person, he must give an account of the manner in which he became possessed of it, otherwise the presumption attaches that he is the thief, but I think, that after so long a period as 16 months has elapsed it would not be reasonable to call upon a prisoner to account for the manner in which property supposed to be stolen came to his possession.'
10. In Rex v. Adams 3 C. & P. 600; Parke, J. observed that possession of stolen property three months after it was lost was not such recent possession as to put the prisoner upon shewing how he came bv it, unless there was evidence of something more than the mere fact of the property being in his possession at that distance of time after the loss of it.
11. In Reg. v. Cooper 3 C. & K. 318 Manle, J. said: 'Where a man is found in possession of a horse six or seven months after it is lost, and there is no other evidence against him but that possession, he ought not to be called to account for it.'
12. In Rex v. Partridge 3 C. & P. 551 Patteson, J. pointed out that the question of what is or is not such a recent possession of stolen property as to require the person in whose possession it is to give an account of how such possession was acquired, was to be considered with reference to the nature of the articles stolen, adding 'if they are such as to pass from hand to hand readily, two months would be a long time.'
13. The stolen article in this case was not of an unique or unusual character, but such as is possessed in every native house-hold and would pass readily from hand to hand.
14. Upon the authority of these cases, we are of opinion that the mere fact of the prisoner's possession of the cup 11 months after it was stolen, was not such a recent possession as to put him to proof of how such possession was acquired.
15. But no doubt there was other evidence besides that of possession to be considered, and if we felt that we could credit the evidence of the concealment of the cup, we should hesitate to interfere with this conviction, but we are not prepared to accept this evidence, and consequently we set aside the conviction.