RAGHUNATH GOPE Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been sentenced to two months rigorous imprisonment under Section 411, Indian Penal Code, in respect of a calf which belonged to the complainant and was found missing from his bathan on the morning of 16 April 1940. The complainant searched for the missing animal that day, but got no trace of it. On the 17 ha went to the mela at Akhtiarpore, and there found his calf with a police constable, p.w. 6, who had arrested the petitioner on suspicion while trying to sell it. The petitioner had told the constable that he had purchased the calf for Rs. 18 at the male, but the constable had actually found him negotiating the sale of the calf for Rs. 5 and when the constable demanded the receipt that is given at the male in such transactions, the petitioner had none to show in support of his story of purchase. At the trial the petitioner set up the defence that he had purchased the calf at the mela the previous evening and when he was starting for his village in the morning with the calf, the complainant had called in the constable and made him over to him.

(2.) In rejecting this defence the trial Court relied on the omission of the accused to examine Sheobalak, "the alleged seller of the calf," and the non-production of the receipt for the purchase of that animal, and then said: The accused has failed to prove his innocence by the defence evidence; on the other hand there is overwhelming prosecution evidence on the record to show that the accused is liable under Sec. 411, Indian Penal Code.

(3.) It has been contended by the learned advocate for the petitioner that the onus of proving the guilt of the accused never changes and always rests on the prosecution and that the trial Court was in error in proceeding on the footing that it was necessary for the accused to prove his innocence. The lower appellate Court did not speak of the accused failing to prove his innocence by evidence, but said: As the calf was found in his possession soon after it was stolen or criminally misappropriated, the onus is on the appellant to show that he had honestly come by it.