BHUTNATH MONDAL Vs. EMPEROR

JUDGEMENT

(1.) The two appellants were tried by the learned Additional Sessions Judge of 24 Parganas on charges under Section 411 read with Section 75, I. P.C. In the end they were convicted of these charges; the appellant Bhut Nath was sentenced to undergo rigorous imprisonment for four years, and the other appellant Gopal was sentenced to undergo rigorous imprisonment for two years. The heads of charge have been placed before as and it is clear that the learned Judge misdirected himself on some material points. According to the prosecution case two persons, Annada and Khetra, of Kuimuri village lost some heads of cattle in the months of Asar and Sraban. Subsequently some cattle were found in She house occupied by the present appellants and three of the animals are alleged to be stolen properties, two belonging to Annada and one to Khetra. The defence is that the three heads of cattle were mortgaged to the appellant Gopal. In his charge to the jury the learned Judge referred to the presumption under Section 114, Evidence Act, and there he remarks as follows: In this case on account of the presumption the onus of proof is shifted to the accused whose duty it is to rebut it. If they fail to prove that they acquired the property lawfully the jury must convict them as the presumption is that they knew the property had been unlawfully acquired.

(2.) The learned Judge was clearly wrong in giving this explanation of Section 114, Evidence Act. In the first place the presumption that may arise under Section 114 is discretionary with the Court, having due regard to the circumstances of the case. But the learned Judge apparently gave the jury to understand that they were bound to make that presumption. Further, the presumption is only this, that if a man is in possession of stolen goods soon after a theft the Court may presume that he is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. This does not mean that the accused must prove affirmatively that he came by the goods innocently. It is sufficient if he can give an explanation which may raise doubt in the mind of the Court as to the guilt of the accused. The learned Judge went on to tell the jury that the statement of the accused without proof cannot be accepted as true; and further that before the story of the sale could be seriously considered it was the duty of the defence to ask local witnesses some things.

(3.) There was no duty cast on the defence to prove the innocence of the accused and it was for the jury to decide whether the statement of the accused was true or not. Upon this charge the conviction cannot . possibly be sustained. We must therefore set aside the conviction and direct that the accused be retried. Lort-Williams, J.