EMPEROR Vs. MAVJI NANJI

JUDGEMENT

(1.) THIS is an application in revision against the conviction of the accused under Section 411 of the Indian Penal Code by the Presidency Magistrate, II Court, and the question, which arises, is one which comes not infrequently before Magistrates in Bombay. The question is when ought a presumption to be drawn that property shown to have been stolen, and found in the possession of the accused, was received by him knowing or having reason to believe that the property was stolen? In other words, when ought the presumption arising under the first illustration to Section 114 of the Indian Evidence Act to be drawn?

(2.) THE property found with the accused was a bell, and the learned Magistrate has found, and in revision we accept his finding, that the bell was stolen from the Motlabai Hospital on the night of October12. According to the evidence of the witness Khimji Khoda, he himself stole the bell, and kept it on an otla of a house near his room, and somebody removed it. Apparently the suggestion is that somebody stole it from the original thief. It was found with the accused, who keeps a shop in the Chor Bazar in which he sells old iron, on October 25, that is thirteen days after the date of the theft. THE accused in his statement said that he bought this particular bell in August, and if that is so, of course, the bell in his shop could not be the bell which was stolen in October. But the learned Magistrate was not prepared to accept that statement and considered that the accused had fabricated his account. I think the learned Magistrate really convicted the accused largely on his own statement. That is wrong. THE prosecution must prove their case. THE prosecution have proved that the bell was stolen on October 12, and that it was found in the accused's shop on October 25, and the question is whether in those circumstances the Court ought to presume that the accused received the bell knowing or having reason to believe it to have been stolen. Unless that presumption is drawn, there is no evidence which the accused can be called upon to answer.

(3.) I agree.