1. This appeal is by three appellants who have been convicted under Section 395, Indian Penal Code, and sentenced to 7 years' rigorous imprisonment each, with the direction under Section 565, Cr. P.C., to notify the address to the Police in case of accused No. 1. Four jurors found the accused guilty under Section 395 while the 5th juror found them guilty under Section 412, Indian Penal Code. The learned Judge has accepted the verdict of the majority of the Jury and convicted and sentenced the accused as aforesaid. In appeal several grounds have been taken pointing to the misdirections alleged to have vitiated the learned Judge's charge to the Jury. It is enough for our present purpose to refer to only one of them. The evidence, it appears, rested mainly upon the recovery of the stolen articles from the possession of the accused. With regard to the explanation of the law on this head the learned Judge made the following observation: 'The law regarding finding of property is this, that if stolen or dacoited property is found in possession of any person soon after the commission of the theft or dacoity, you may presume him to be either the thief or dacoit or a receiver unless he accounts for possession.' Then he proceeds to state the three necessary elements which give rise to the presumption under the law, namely, (a) that the property was found in possession of the accused; (b) that the property is stolen property and (c) that it was found soon after the theft or dacoity. Then the learned Judge adds that if these three conditions are satisfied you may presume against the accused until he proves his innocence, otherwise not. As to what is meant by the learned Judge by the word 'proved' in a subsequent part of his judgment he says 'if you are satisfied that the presumption can be made you will see how far the presumption has been rebutted. As to the claim of the articles, allegation is not the same as proof. But if you make the presumption, it cannot be rebutted by mere denial.' Reading these passages together it is evident that what the learned Judge meant to hold and which the Jury understood is that if the articles are stolen properties and were found in possession of the accused it is sufficient to prove that they were thieves or dacoits and the rebut table presumption that arises in law is that the accused are either thieves or dacoits until they succeed by adducing sufficient proof in establishing their innocence. This direction has been considered to be serious mis-direction in several cases decided by this Court. In Hathim Mondal v. Emperor 56 Ind. Cas. 849 31 C.L.J. 320 : 24 C.W.N. 619 : 21 Cr. L.J. 545 the learned Chief Justice quoted a portion of the judgment of the learned Chief Justice of England in the case of R. v. Isaac Schama (1914) 11 Cr. App. Rep. 45 at p. 49 : 84 L.J.K.B. 396 : 112 L.T. 480 : 79 J.P. 184 : 59 S.J. 288 : 31 T.L.R. 88 where it is said that in a case like the present the charge to the Jury should be to this effect; 'Where the prisoner is charged with having receiving stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the Jury may be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the Jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the Jury think that the explanation may reasonably the true, though they are not convinced that it is true, the prisoner is entitled to an acquittal because the Crown has not discharged the onus of proof imposed upon it of satisfying the Jury beyond reasonable doubt of the prisoner's guilt. That onus never changes; it always rests on the prosecution.' In a case where the evidence of the guilt of the accused rests upon discovery of stolen property from his possession and which is tried by the Jury the proper course is to direct that the Jury are entitled to take the explanation offered by the accused of their possession. It is not necessary that such claim by the accused must be proved. There may be a case in which it is impossible for the person who is in possession of the property to prove how he obtained possession of it and if he states the circumstances under which he obtained, it the Jury as a Court of fact may accept it; and in that case it will be their duty to acquit the accused. The statement of the law made by the learned Judge in his charge to the Jury leaves no such option to the Jury. He insists that, if the prosecution succeeds in proving possession by the accused of recently stolen goods, it is his duty to prove his innocence and he emphasises it by explaining that mere allegation is not proof and that the presumption raised under the law cannot be rebutted by mere denial. We think that this explanation of the law is not correct and amounts to a misdirection which vitiates the charge. This view is in accord with that taken in Satya Charan Manna v. Emperor 88 Ind. Cas. 515 : 52 C. 223 : (1925) A.I.R. (C. ) 666 : 26 Cr, L J. 1155. Though there is difference in the language of the charge under consideration in that case from that in the present case the law as laid down there is equally applicable to the present case. We are accordingly of opinion that this charge is vitiated by the mis-direction referred to and that the trial must be held to be not according to law. There are other objections taken but it is not necessary to consider them, In the view above stated the conviction of and the sentences passed upon the appellants must be set aside.
2. We accordingly order that the conviction of and the sentences passed upon them be set aside and that they be re-tried according to law.
3. They will remain in Jail until further orders by the Trying Court.