Imam and Chapman, JJ.
1. This was a Rule calling on the Chief Presidency Magistrate to show cause why the conviction should not be set aside on the ground that the production of the railway receipt does not establish the possession of the petitioner.
2. The petitioner was prosecuted for receiving stolen property, under Section 411 of the Indian Penal Code, in the form of a package containing some piece-goods, at the railway station Takia, on the Oudh and Rohilkhand Railway. The goods belonged to a firm of dealers of the name of Ramkissen Das Jaiparmal, and were missed from their godown on the 25th December, 1912. Information of the disappearance of the package was given to the police on the 27th December, and it seems that, on the 28th December, Seo Sagar, a jemadar of that firm, having come to know that the goods had been despatched to Takia, started for that railway station. On arrival at Takia on the following morning, 29th December, he informed the station-master of the incident after he had found the package in question at the railway station amongst the goods that had to be delivered to various consignees. That morning, at 7 A. M. or thereabout, a man other than the petitioner came to take delivery of the goods, but on being questioned by the station-master he was not able to satisfy that officer that he was entitled to receive the goods. That man was sent away, and it seems that Seo Sagar said that he could bring the petitioner, Shewdhar Sukul, to whom the goods had been consigned for taking delivery, and, as a matter of fact, at about 10 A.M. Shewdhar Sukul, accompanied by Seo Sagar, came to the station, presented the railway receipt before the station-master, paid the freight for the goods and received delivery of the goods from the station-master.
3. It is contended on behalf of the petitioner that no actual delivery took place, because, although the receipt had been returned to the railway office and the freight paid, the goods had not, as a matter of fact, been removed by the petitioner, and that, therefore, the transaction could not be construed either into receiving the goods or having possession over them.
4. Information of this receiving of stolen goods was given at once to the police, and the petitioner was arrested. The petitioner's defence in the lower Court was that, at the time when the goods came to Takia, a large and popular fair was held at that place and the petitioner had a shop of piece-goods and things of sorts at that fair. It was further contended that the goods, as a matter of fact, had been brought to Takia by Seo Sagar, and the railway receipt was handed to the petitioner, and the petitioner was brought by him to the railway station to receive the goods; that, in these circumstances, the petitioner was quite innocent and knew nothing as to the stolen character of the articles in question, and that he could not be convicted under Section 411 of the Indian Penal Code.
5. The facts found by the learned Presidency Magistrate are that, as a matter of fact, the goods had disappeared from the godown of Ramkissen Das Jaiparmal some time before the 24th December; that they had been despatched to Takia; that at that station the petitioner had received the goods; that he has not been able to account for the possession or the fact of his receiving the goods.
6. The Rule in this case is limited to the construction that is to be placed on the possession of the railway receipt, or the production of it by the petitioner.
7. There might have been something said in favour of the petitioner if the matter had ended with the mere production of the railway receipt; but we see in this case that, after the production of the railway receipt, the delivery of the goods had been effected. The station-master swears that delivery was made. He further says that freight had been paid by the petitioner. We are not in a position to accept the petitioner's contention that unless and until he had removed the goods from the railway premises he could not be declared to have received the goods. The case of Reg v. Hill (1849) 3 Cox C. C. 533: 1 Den. C. C. 458 has been cited to us as an authority on which this conviction is sought to be set aside. The judgment in that case proceeded on the prisoner never having in fact received the stolen property, and never having had power over it. That cannot be said to be the case in the present instance. After the delivery of the goods by the station-master, they came to be not merely, in the potential possession of the petitioner, but actually within his power and unrestricted control. It was open to him to do as he liked with the goods; he could have removed them without let or hindrance to any place wheresoever he might have wished them to be carried, the possession of the Railway Company having, from the moment of the delivery, ceased, and that of the petitioner having commenced. In these circumstances, we do not see how the Rule in the (sic) in which it was issued can be made absolute. We are, therefore, not prepared to set aside this conviction.
8. We have been asked by the learned vakil on behalf of the petitioner to consider the question of sentence. The petitioner has been sentenced to a term of six months' rigorous imprisonment, and it is said that he does not deserve such a severe punishment, inasmuch as he offered to the station-master that, as the goods were represented to be stolen, they might be kept by the station-master and that information of the goods being stolen might be given to the police. Had this offer been made by the petitioner to the station-master before the delivery of the goods, the question of locus paenitentiae might easily have been raised. Thai, however, does not arise in the circumstances of this case. We are inclined to think that as soon as the petitioner discovered that people knew that the goods were stolen he possibly was penitent; but because of the penitence of the petitioner if we were to reduce his punishment, we would be encouraging the receipt of stolen property by others. Most of these cases of receipt of stolen property disclose that the thefts would not probably have taken place if the receivers had not encouraged the thefts. In this case, whatever might be said in respect of the penitence of the petitioner, one fact stands out very prominently against him, and that is, that even at the trial he did riot disclose the name of the person who had consigned the goods to him. He attemped to show that Seo Sagar was the consignee that he (Seo Sagar) had brought the goods to Takia and had attempted to get the petitioner into trouble, and here at the bar, it has been argued that Seo Sagar is the real thief.
9. Upon the facts that have been disclosed in this case we see not a tittle of evidence to charge Seo Sagar with the misdeed. We, therefore, considering the conduct of the petitioner in laying a false charge against Seo Sagar and his failure to disclose the name of the real consignor, see no reason to interfere with the sentence. The sentence that has been passed must be undergone by the petitioner. The Rule, therefore, is discharged.