BAIDYANATH MAHANTY Vs. EMPEROR

JUDGEMENT

(1.) THIS is a petition for revision of orders passed by a learned Magistrate and on appeal by the learned Sessions Judge of Cuttack convicting the petitioner of an offence under Section 411, Indian Penal Code, and sentencing him to a term of six months rigorous imprisonment. It appears that Banchanidhi Behera was a guest at the petitioner's house, though it is admitted that the petitioner knew very little about him or his antecedents. Banchanidhi Behera committed a theft in the house of one Jadu Babu, and it was established that he took the stolen property to the petitioner's house. According to the prosecution, the property was eventually found in a suit case belonging to the thief in the petitioner's house. The petitioned is connected with the matter because it is said that it was he who produced the key which opened the suit case. The prosecution have to admit that the key finds no place in the search list, and the search witnesses were not called to corroborate the Sub-Inspector who deposed that it was the petitioner who gave him the key. Further, it is a little odd that the petitioner was not arrested for some time, though it must have been obvious to the Sub-Inspector that he was in possession of the stolen property if he produced the key as now alleged. The learned Sessions Judge has accepted the evidence that the petitioner produced the key; but I find it very difficult to found a conviction entirely upon the Sub-Inspector's statement. The circumstances seem to suggest that the story as to this key is a later invention, and there is a real danger that that might be so. On the very face of this case, there is a grave doubt, and in my view it would be wholly unsafe to convict the petitioner upon this evidence.

(2.) EVEN if the petitioner produced the key, that would not be conclusive. It must be remembered that the thief was staying at his house and that the petitioner knew very little about him. It may be that the key, if ever in the petitioner's custody, was given to him for safe keeping. The petitioner ought to have been given a full opportunity to explain the alleged possession of the key, but I notice that in the examination of the accused there is no specific question about this matter at all. In fact, he was merely asked generally as to what he had to say after hearing the cross-examination. Where a man is found in possession of property recently stolen, the Court may presume that he is the thief or that he is in possession of the property knowing the same to be stolen. If, however, the person gives a reasonable explanation of the possession, the Court should not find him guilty even if it is not affirmatively satisfied that such explanation is true. Here the accused was not asked to offer any explanation. That being so, the conviction cannot be maintained even if the evidence as to the key were accepted. Taking all the circumstances into consideration, there was a grave element of doubt in this case and that being so I would allow this application, set aside the conviction and sentence and make the rule absolute. The petitioner's bail bond will be cancelled.