1. MUHAMMAD YAQUB ALI, J.--The petitioner stands convicted under section 411, P. P. C. and sentenced to six months' rigorous imprisonment for having received and retained in possession a bicycle stolen from the custody of Mumtazur Rahman (P. W.).
2. Leave to appeal was granted to consider whether the prosecution had led any evidence in proof of the guilty knowledge on the part of the appellant to warrant his conviction under section 411, P. P.
3. C.
4. It is not disputed by the learned counsel for the appellant that bicycle P. 1 was purchased by the brother of Mumtazur Rahman (P. W.) in 1953 for Rs, 180 and that on the 21st January 1962, the bicycle was stolen from the custody of Mumtazur Rahman that the bicycle was sold by the appellant to Nazar Chiragh Shah (P. W.) on 14-11-1964 for a sum of Rs, 50; and that the latter sold the bicycle to Muhammad Yasin (P. W. 1) and it was recovered from his custody by the Police on 29-5-1965. The learned counsel, however, contended that it was not an offence to receive or retain in possession stolen property unless it was shown that the appellant had acted dis-honestly or had reason to believe that the property received or retained by him was stolen property.
5. Under clause (a) of section 114 of the Evidence Act the Court may presume that the person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession, but it is urged that since the bicycle was stolen on the 21st January 1962, and the appellant was shown to have it in his possession on the 14th November 1964, when he passed it on to Nazar Chiragh Shah (P. W.) no such presumption could be raised against the appellant, the Courts below have, however, attributed guilty knowledge to the appellant on the ground that the defence evidence led by him to prove that he had purchased the bicycle from one Ghulam Bari, a railway employee was false. This according to the learned counsel was unwarranted in law.
6. We find that apart relying on clause (a) of section 114 the prosecution did not bring on record any extra circumstance from which it could be inferred that the appellant know or had reason to believe that the bicycle sold by him to Nazar Chiragh Shah on 14-11-1964 was stolen from the custody of Mumtazur Rahman (P. W.) on 21-1-1962.
7. In a parallel case reported in Bharadwaj Singh v. The State , Harries, C. J. observed:-- "......being in possession of stolen property is in itself no offence. If it was, all of us I imagine would be in serious danger constantly. Any one in this Court might buy any article to-day quite openly and honestly and later find that that article had been stolen. If being in possession of stolen property was itself a crime, then an innocence purchase of that article would render the purchaser liable to conviction for a serious offence. Being in possession of stolen property is only a crime if the person in possession either knows that the property is stolen property or has reasonable grounds for relieving that the property had been stolen."
8. To prove in a prosecution under section 411, P. P. C. the prosecution must not only prove that the property had been stolen but they must also establish facts from which the Court can properly infer that the person charged with, being in possession of stolen property either knew the property to be stolen or had reasonable grounds for believing the same to have been stolen. Unless there is some prime facie evidence as was knowledge of the accused, then the later is liable to be acquitted, because, as I have said, merely proving of that he was in possession of the stolen property establishes no offence of any kind."
9. Dealing with the contention raised on behalf of the complainant in that case that the Courts were entitled to convict the petitioner because they had disbelieved his explanation Harries, C. J.-- continued to state:-- "..............in cases of this kind, the accused is only called upon to offer an explanation if there is a prima facie case against him. There was no evidence at all as to his knowledge and therefore, the accused should have been acquitted upon the evidence for the prosecution Although there was no case against the accused, the accused was called upon to enter upon his defence and has been convicted merely because the statement of the accused and the evidence of his witnesses had been believed.
10. I do not think it is necessary to point out that an accused cannot be convicted where there is no evidence against him merely because his evidence is disbelieved. If that were so, then countless people would be wrongly convicted merely on the ground that the Court had disbelieved the usual tendered namely, of alibi.
11. In Raza Muhammad and others v. The State , H. T. Raymond, J.--remarked; "that possession of stolen property must be recent justifying inference constituting proof of offence and that delay of merely two months in production of the property did not justify inference of guilty knowledge.
12. As seen in the present case there was delay of more than two years. The bicycle was stolen on 21st January 1962, and the appellant was shown to have it in his possession on 14th November 1964.
13. Clause (a) of section 114 had, therefore, no application and on this premises the appellant was not required to explain his possession. His conviction is, however, based exclusively on his failure to prove that the bicycle was purchased by him from one Ghulam Bari who has since died.
14. In reply Mr. Asad Hussain Zaidi appearing for the Advocate-General, urged that as the stolen bicycle was sold by the appellant for a grossly inadequate sum, the Courts below had acted properly in burdening him with the guilty knowledge. He relied for this purpose on a Single Bench decision of the Allahabad High Court in Mahboob v. Emperor . Buffaloes of the value of Rs, 190 were sold by the accused in that case for Rs,
79. In the opinion of Walah, J., that was an almost certain test that the person in possession of the stolen property knew that the property was stolen property1 2 3 or has reasonable grounds to believe that the property received or retained by him was stolen property or he had reasonable grounds to believe that it was stolen property.
15. In the case before us the bicycle was purchased by the brother of Mumtazur Rahman for a sum of Rs, 180 in 1953. Eleven years later it was sold by the appellant for a sum of Rs,
50. On account of the depreciation during all these years, it could B not be said that the test laid down by Walah, J., was applicable.
16. Rs, 55 was indeed a fair price for which the bicycle was sold by the appellant to Nazar Chiragh Shah as is borne out by the fact that the latter had sold it to Muhammad Yasin (P. W.) for about the same price.
17. It was not disputed by Mr. Zaidi that the possession of the appellant was not recent within the purview of section 114(a) to raise the presumption that the appellant was either the thief or had received the bicycle knowing it to be stolen. In fact he repudiated the contention raised by the learned counsel for the appellant that conviction was liable to be set aside so it rested on section 114 (a). He, nevertheless, adopted the reasoning of the Courts below that guilty knowledge could be inferred from the failure of the appellant to establish the purchase of bicycle from Ghulam Bari and its sale for an inadequate price.
18. It does not require an elaborate argument to reach the conclusion that possession simpliciter of a stolen property is no offence. If possession is recent the Court will presume that the person found in possession of stolen property is the thief or has received the goods knowing them to be stolen unless he C can account for its possession. This presumption, however, did not arise in the present case as possession more than two years after theft could by no stretch of imagination be treated as recent. Section 114(a) of the Evidence Act had, therefore, no application in the case. Nor was there any extra circumstance to impute guilty knowledge to the appellant.
19. We do not mean to lay down that in each case effiux of time alone will negative that charge under section 411, P. P. C. If a person is found in possession of a stolen article which he has no ostensible means to acquire such as an expensive watch or a valuable stone the Court may infer from this extra fact guilty knowledge on his part unless he can account for his possession. No universal rule can, therefore, be laid down for determining guilty knowledge of a person from whose custody a stolen article is received. The decision in each case will depend on its own facts.
20. In the absence of any evidence that the appellant had received the stolen bicycle dishonestly or had knowledge or reason to believe that the same was stolen his conviction under section 411, P. P.
21. C. cannot be sustained. The appeal is, accordingly, allowed and his convictions and sentence are set aside. His bail bond shall stand discharged. AIR 1952 Cal. 616 PLD 1963 Kar. 1010 AIR 1920 All. 85