1. These are 8 jail petitions by the petitioner against his convictions and sentences under stations 380 and 411, Penal Code.
2. Mohammad Akbar petitioner was arrested by the Police during the investigation of the Parcha Illat 124 of Thana Mirpur when Shamas Din Pathan of Chakswari made a report of the theft of various articles of clothing and other articles worth Rs. 458. The accused led the Police to his house in Hamidpur Colony saying that he had kept the stolen property, the subject of various thefts, in his house and can produce the same. Accordingly as a result of his house search various articles consisting of clothing, radios, jewellery, watches etc, numbering 126 were recovered. When the complainants In various other cases of theft identified their stolen property from amongst the stolen property recovered as a result of the house search of the petitioner and as many as 8 challans under section 380/457 were instituted against the accused and the learned A. D. M.
3. Recorded convictions In all cases under section 380, Penal Code and sentenced him to 3 years' R. I.
4. In each case. The convict then filed appeals before the learned Sessions Judge, Mirpur who upheld the convictions in all cases but upheld the sentences In a couple of cases and reduced the sentences in others. He has now filed Jail petitions against his convictions and sentences. Since the property recovered from the possession of the accused was recovered as a result of one search, I proceed to dispose of all the 8 petitions by the same order. A synopsis of the various cases is given below :-
(1) High Court File No. 3.
5. Sessions CourtFile No. 24 Criminal.
6. A. D. M.'s file No. 48.
7. Convicted by the A, D. M. Under section 380 and sentenced to 3 years' R. I. By order dated 26-6-71.
8. The Sessions Judge upheld the conviction but reduced the sentence to 6 months' R. I, by order dated 25-10-71.
(2) High Court File No. 4 Sessions Court File No. 18 Cri.
9. A. D. M.'s File No. 31.
10. Conviction by the A. D. M. Under section 383 and sentenced to 3 years' R. I. By order dated 24-6-71.
11. The Sessions Judge upheld the conviction and sentence by order dated 10-10-71.
(3) High Court File No. 5.
12. Sessions CourtFile No. 20 Cri.
13. A. D. M.'s file No. 44.
14. Convicted by the A. D. M. Under section 380 and sentenced to 3 years' R. I. The Sessions Judge upheld the conviction but reduced the sentence to one year's R. I. By order dated 12-10-71.
(4) High Court File No. 6.
15. Sessions CourtFile No. 17 Cri.
16. A. D. M.'S File No. 1.
17. Convicted by the A. D. M. Under section 380 and sentenced to 3 years' R. I. By order dated 24-6-71.
18. The Sessions, Judge upheld the conviction and sentence by order dated 10-10-71.
(5) High Court File No. 7.
19. Sessions CourtFile No. 22 Cri.
20. A. D. M.'S File No. 46.
21. Convicted by the A. D. M. Under section 380 and sentenced to 3 years' by order dated 30-6-71. The Sessions Judge upheld the conviction but reduced the sentence to one year's R. I. By order dated 14-10-71.
(6) High Court File Sessions CourtNo. 8.File No. 23 Cri.
22. A. D. M.'s File No. 47.
23. Convicted by the A. D. M. Under section 380 and sentenced to 3 years' R. I. By order dated 3-6-71.
24. The Sessions Judge converted the conviction under section 411 but reduced the sentence to 3 months' R. I. By order dated 16-10-71.
(7) High Court File No. 9.
25. Sessions Court File No. 19 Cri.
26. A. D. M.'s File No. 32.
27. Convicted by the A. D. M. Under section 380 and sentenced to 3 years' R. I. By order dated 24.6-71.
28. The Sessions Judge upheld the conviction but reduced the sentence to one year's R. I. By order dated 10-10-71.
(8) High Court File No. 10.
29. Sessions CourtFile No. 21.
30. A. D. M.'s File No. 45.
31. Convicted by the A. D. M. Under section 380 and sentenced to 3 years' R. I. By order dated 30-6-71.
32. Tho Sessions Judge upheld the conviction but reduced the sentence to 6 months' R. I. By order dated 13-10-71.
33. I have gone through the record of all the cases with the help of the learned Additional Advocate- General. The stolen property in all cases was recovered from the possession of the accused as a result of his house search which has been proved from the statements of disinterested witnesses of the house search. The accused in all cases denies the recovery and does not claim the recovered property to be his own. When asked why he had been prosecuted, his reply was that he could not say as to why he had been prosecuted. I have read the evidence in all the 8 files in order to satisfy myself as to the correctness of the convictions since the accused is not represented by a counsel.
34. All cases stand proved.
35. There is no direct evidence of the accused having committed thefts but under section 114, Evidence Act a presumption has been raised that the accused is a thief because the stolen property has been recovered from his possession. Section 114 (a), Evidence Act says that a man 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. Now we have to see whether the convict should be presumed to be a thief or a receiver of the stolen property? If lie is presumed to be a thief a conviction shall be recorded under section 380, Penal Code but if he is presumed to be a receiver of stolen property, the conviction shall be recorded under section 411, Penal Code.
36. The question whether the possessor should be presumed to be a thief or a receiver depends on the facts of each particular case. In England It has been held that to constitute the offence of receiving there must be some proof that same person other than the prisoner had possession of the goods before the prisoner got possession of them and that in the absence of such proof possession is only proof of the stealing but it is doubtful whether the rule is applicable in the sub-continent, the illustration to the section giving a wide discretion to the Court to raise one presumption or the other. In the absence of other circumstances tending to show the accused was himself the thief, it is safer to presume him to be only a receiver. But it has been held by a Division Bench of the Patna High Court that the presumption that ordinarily arises is not that he has received the property knowing it to be stolen but that he has stolen it. The inference that he is a receiver ought not to be drawn unless there is some circumstances going to show that he did not obtain it direct from the owner or the person in possession, but from some other person who was himself the actual thief.
37. However, it has bees observed by Desai, J. Of the Allahabad High Court that if the interval between the theft and the accused being found in possession is very small, the presumption can be that he is the thief. If on the other hand, the interval is relatively large, the presumption can be that he is the receiver. I agree with the view taken by Desai, J. Of the Allahabad High Court. My own view is that if a person is found in possession of stolen goods within couple of weeks of the theft, the presumption should be raise that he is a thief, but if the goods are found in his possession, say, after about a month it would be safe to presume that he is a receiver of the stolen property.
38. Now I take up the other 7 cases. The stolen property of all, the 8 cases was recovered from the possession of the accused as a result of one house search. In A. D. M.'s File No. 31 the theft took place on 29-9-70 but the stolen property was recovered on 4-12-70. Therefore, the presumption would be that he is receiver of the stolen property and not the thief. His conviction is, accordingly altered to one under section 411, Penal Code. In the A. D. M.'s File No. 44 the theft took place on 10-10- 70 and the stolen property was recovered on 4-12-70. In this case also the presumption would be that he is receiver of the stolen property, and not the thief, therefore, in this case his conviction is altered to one under section 411, Penal Code. In the A. D. M.'s File No. 46 the theft took place some time in the month of May 1970. The stolen property was recovered on 4-12-70, therefore, the presumption would be that he is the receiver of the stolen property and not the thief. In this case also his conviction is --altered to one under section 411. In the A. D. M.'s File No. 47' the theft took place in the month of August '70 but the stolen property was recovered on 4-12-70, therefore, the presumption would be that he is a receiver of the stolen property and not the thief. In this case also his conviction has rightly been converted, by the Sessions Judge to one under section 411. In File No. 32 of the A. D. M. The theft took place on 12-11-70. The stolen: property was recovered on 4-12-70.
39. The presumption would, therefore, be that he is a thief. The conviction has rightly been recorded under section 380. In the A. D. M.'s File No. 45 the theft took place on 12-10-70 but the stolen property was recovered on 4-12-1970. The presumption would be that he was a receiver of the stolen property and not the thief. Therefore, the convic--petition in this case is altered to one under section 411. In the A. D. M.'s File No. 48 the theft took place on 24-4-1970 but the --stolen property was recovered on 4-12-1970. The presumption would be that he is the receiver of the stolen property and not the thief. His conviction is accordingly altered to one under section 411.
40. My view is that where the stolen property which is the subject of different thefts is recovered from the possession of a person during one search, he can be convicted of one offence only of receiving the stolen property under sec--petition 411 unless it can be proved that the stolen property, the subject of different thefts, was received at different times. Gour, the learned Commentator on the Penal Law of India quoting 45 All. 885, followed in 110 1 C 673 writes in note 16 under section 411 that a person found in possession of stolen property belonging to different owners, cannot be convicted of separate offences in respect of each owner unless there is evidence to prove that he had received it at different times. Quoting 1957 M L J (Cr.) 402 the learned Commentator writes further that where an accused is found on the same date to be in possession of goods forming subject- matter of distinct thefts, he cannot be tried and convicted more than once unless there is evidence to show that they were received at different times. There is no evidence that the petitioner received the stolen property in files other than No. 1 at different times. Therefore, he can be convicted once only. The cases of conviction under section 380 stand on different footings because in those cases the petitioner was found in possession of stolen property shortly after tae theft.