LAKSHMAN Vs. GOVTOF MYSORE

JUDGEMENT

(1.) The petitioner has been convicted of an offence under Section 379, I.P.C. and sentenced to rigorous imprisonment for two months by the Second Magistrate, Chttaldrug. On appeal, the conviction has been upheld but the sentence reduced to rigorous imprisonment for one month by the District Magistrate. This revision petition is preferred against that order.

(2.) A buffalo and its calf which were said to have been missing from their owner on the night of 15.10.1950, were found in the possession of the accused and seized on 17.10.1950. The plea of the accused is that the complaint was false and in his statement he denied the ownership of the complain-ant and maintained that the cattle belonged to his father who is said to have obtained them from one Hanumantha. Both the courts found that the cattle belonged to the complainant, P.W. 2, and the ownership set up by the accused is false.

(3.) Sri V. Krishnamurthy, the learned Advocate for the petitioner, contended that the evidence of the theft of the buffalo and the calf is not conclusive, that the mere fact that the accused was found in possession of the cattle alleged to have been stolen is not sufficient to fix the guilt upon him, that the accused has explained the circumstances under which he came into possession and that irrespective of positive proof of the said explanation the accused is entitled to acquittal. In support of his contention he relied upon the decisions in Kabatulla v. Emperor 53 Cal 157 and Istahar Khondkar v. Emperor 62 Cal 956. In the former case, the Judges observed that in a case where the evidence of the guilt of the accused rests upon the discovery of the stolen property in 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 the possession. It was found in that case that the Magistrate had directed that recent possession of the stolen property raises a rebuttable presumption that the accused are guilty of theft unless they adduced sufficient proof in establishing their innocence. It was held by the High Court that it is not for the accused to prove positively the explanation of his possession of the property, but for the Jury, as a court of fact, to accept the explanation or not. In that view it was considered that it was a misdirection by the Judge to the Jury. In the latter case 62 Cal 956 it was laid down that the direction of the Judge to the Jury under Section 114, illustration (a) of the Evidence Act, should be in accordance with the statement of Lord Reading in Reg v. Isac Schama (1914) 11 Cr. App. Rep. 45 which is to the following effect: Where the prisoner is charged with receiving recently stolen property when the prosecution has proved the possession by the prisoner and 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 Is reasonably 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. The onus never changes, it always rests on the prosecution. These cases establish the principle that it is for the jury to judge as a court of fact whether the explanation offered by the prisoner is reasonably true and accept the explanation or not in the light of the entire evidence adduced in the case.