Laloo Kahar vs Emperor

Harries, C.J.—This isd an application for revision of orders passed by the Courts below convicting the petitioner of an offence u/s 411, Penal Code. The petitioner was tried by a learned Magistrate of the Second Class upon this charge along with other persons. He was convicted u/s 411, Penal Code, and sentenced to undergo rigorous imprisonment for six months. On appeal an Appellate Magistrate affirmed the conviction but reduced the sentence to three months'' rigorous imprisonment.

The case for the prosecution was that on the night of 9th January 1941, thieves had broken into the shop of one Gopi Lal and had stolen numerous articles including pieces of cloth. Investigation followed promptly and a number of persons were arrested including the present petitioner. In a search of his house on 12th January 1941, a locked box was found which was broken open by the Sub-Inspector. In that box, it was said, were pieces of cloth stolen from the shop of Gopi Lal on 9th January 1941.

The petitioner''s explanation was that he had received one box and its contents in good faith from one Tulsi Kandoo who had confessed his guilt and who had been convicted of the theft. He stated that Tulsi Kadnoo was on his way to Calcutta, but he missed the train at Gaya station and had determined to go to Patna. According to the petitioner, he was asked if he would keep the box for Kandoo until he returned to Gaya. The petitioner after some hesitation agreed to keep the box, and it was kept. in his room at Gaya and was there when the police-search took place,

There can be no doubt that the petitioner was in possession of stolen goods soon after the theft. As I have stated, the theft took place on 9th January 1941, whereas these goods were recovered from the petitioner''s possession on 12th January 1941. In such a case the Court could make the presumption contemplated by Section 114, Evidence Act. That section reads as follows:

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration (a) to this section is as follows:

The Court may presume that a man who is in possession of stolen goods sopn after the theft, is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.

It is clear from the judgment of the appellate Magistrate that he applied the provisions of Section 114 to this case, and he presumed in the circumstances that the petitioner did receive the goods knowing them to be stolen. In my view, however, the appellate Magistrate placed the onus of proof upon the accused and that he was not entitled to do by reason of the provisions of Section 114, Evidence Act, and Illus. (a) to that section. The learned appellate Magistrate deals with this aspect of the case in the following words:

The appellant admits that the stolen articles -- the subject-matter of charge against him--were in his house in his possession. Thus, there is a legal presumption against him that be is either the thief or he has received the articles knowing them to be stolen, unless he can account for his possession. The articles were stolen on 9th January 1941 and the appellant''s possession over them was discovered on 12th January 1941 soon after the theft. In these circumstances the burden of proof has shifted to the appellant''s aide.

Later on, after dealing with the evidence called-on behalf of the defence, he states:

This evidence is not sufficient to prove the defence as it sometimes happens that even persons with guilty knowledge show reluctance to participate in crimes,

From these observations it is clear that the learned Magistrate was of opinion that the onus of proof in cases of this kind was shifted on to the accused by reason of the provisions of Section 114, Evidence Act, and in my view that is a misstatement of the law. The onus of establishing the guilt of an accused person always rests on the prosecution. Where an accused person is found to be in possession of the property recently stolen the Court can presume that he was the thief or that he received the goods knowing them to be stolen. There is only a presumption of this which can be rebutted by the accused giving a reasonable explanation of his possession of the articles in question. The fact that the presumption is made does not throw the onus upon the accused of proving affirmatively that he had no knowledge that the goods were stolen. By reason of the presumption the accused must give a reasonable explanation of his possession and an explanation which may well be true. The accused is not bound to establish beyond all doubt that he obtained the goods innocently.

The effect of this presumption has been considered by the Courts on a number of occasions. There is the same presumption in English law, and the proper direction to be given to a jury was laid down by Lord Reading L.C.J. in Rex v. Isaac Schama (1914) 11 Cr. App. Rep. 45. The learned Lord Chief Justice observed:

Where the prisoner is charged with receiving recently stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the jury should 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 be 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. That is the law; the Court is not pronouncing new law, but is merely restating it, and it is hoped that this re-statement may be of assistance to those who preside at the trial of such cases.

That statement of the law by Lord Reading L.C.J., was expressly approved of and adopted by a Bench of the Calcutta High Court in Istahar Khondkar and Others Vs. Emperor, . That case followed a number of earlier Calcutta oases where the same principle had been laid down. In Bhutnath Mondal Vs. Emperor, a Bench laid down that the presumption u/s 114, Evidence Act, means that in cases of goods which have been recently stolen the law exempts the Crown from proving the guilt of the accused unless he gives some explanation as to how he came by the goods. If he gives any explanation which in the opinion of the jury may possibly be true, although they do not necessarily believe it, then the Crown cannot rely upon the presumption and must prove the guilt of the accused just as in any other criminal case. In a charge to the jury a judge had told them that since the stolen goods had been found in the possession of the accused the onus of proof shifted on him u/s 114 and that unless he proved affirmatively that he acquired the property lawfully the jury must convict him. It was held that such a charge amounted to a misdirection and vitiated the verdict. Thesame view was taken by a learned Judge of the Allahabad High Court in Hori Lal Vs. Emperor . There are also a number of cases of this Court in which this same rule has been laid down and followed. The result of these cases is that a direction that the onus of, proof shifts on the accused when the Crown shows that he was in possession of recently stolen property is erroneous and if given to a jury would vitiate the verdict. In the present case the appellate Magistrate so directed himself and finally held that the accused had failed to discharge the onus of establishing his innocence. That being so, the conviction cannot be sustained, and the accused is clearly entitled to a new trial if not an acquittal.

In the present case I have considered whether a new trial should be ordered, but I can see no useful purpose in making such an order. The explanation given by the accused in this case is an eminently reasonable one. He was a coolie employed at the station, and according to him he was asked to keep this box temporarily by one of the accused. There is no direct evidence to suggest that he knew of the theft or knew what was in the box. The box apparently was kept quite openly in the petitioner''s room. Further, the person who gave him the box, namely, Tulsi Kandoo, the confessing accused, mentioned the fact in his confession and does not suggest in any way that the petitioner knew what the contents of the box were which he was asked to keep. The explanation given by the petitioner is one which may well be true, and that being so, he should have been acquitted even if the Court was not satisfied affirmatively that the statement was true. Further, it is to be observed that a witness deposed that he had heard Tulsi asking the petitioner to keep his box until he returned from Patna. The learned appellate Magistrate does not make it clear whether he rejected this witness''s evidence in its entirety or not. He, however, states that the evidence, for what it is worth, is not sufficient to discharge the onus which, in his view, was on the accused. It appears to me that the petitioner''s own statement corroborated as it is to some extent by the confession of Tulsi Kandoo, does afford an eminently reasonable explanation of his possession, and if the evidence of the witness for the defence be also-accepted, the truth of the petitioner''s explanation would be established beyond all doubt. In all the circumstances, I do not think that this is a case in which a new trial should be ordered, and in my view the petitioner is entitled to be acquitted. The result is that this petition is allowed, the conviction and sentence are set aside and the rule is made absolute. The bail bond of the petitioner is hereby discharged,

Manohar Lall, J.

I agree. I only wish to observe that in a recent decision of this Court, Rowland, J. and myself took the same view while delivering the judgment in Meghu Chamar and Another Vs. Emperor, on 28th August 1941 as to the applicability of Section 114, Evidence Act. We followed the decision of another Division Bench of this Court reported in Rajendra Nath Laha and Another Vs. Emperor, .