Judgment

MAHAJAN, J.: This is an appeal by special leave from the judgment of the High Court of Judicature at Nagpur dated 5th December 1951, setting aside an order of acquittal, and convicting the appellant under S. 411, I. P. C., and sentencing him to nine months s rigorous imprisonment.

2. The case for the prosecution was that the appellant along with some other persons committed dacoity in the house of one Namdeo Motiram on the night of 11-12-1950 and thereby committed an offence punishable under S. 395, I. P. C. The defenece was that the appellant had been falsely implicated. It was denied that any of the alleged stolen properties had been recovered by the police at his instance, or from his possession. The magistrate acquitted the appellant and the coaccused. It was held that the recovery of the stolen property from a field which was accessible to all and which did not even belong to the appellant but to one Namdeo Ananda was not sufficient to bring the guilt home to the appellant or to prove that he was in possession of the stolen goods. The evidence as regards his participation in the dacoity was disbelieved and it was observed that the manner in which the search was conducted did not inspire confidence.

3. The State Government preferred an appeal to the High Court against the order of acquittal under S. 417 Criminal P. C. The High Court agreed with the finding of the trial magistrate that the appellant was not guilty of the offence under S. 395; it, however convicted him under S. 411, I. P. C. for receiving stolen property. Leave to appeal against this decision was allowed by this court as on a perusal of the judgment of the High Court it appeared that there had been a grave miscarriage of justice in the case.

4. It is settled law that the presumption of the innocence of an accused person is reinforced by an order of acquittal and a heavy onus rests on the prosecution in an appeal from such an order to prove that the order is manifestly erroneous. The High Court seems to have approached the case as if it was considering an appeal preferred against his conviction by an accused person. The magistrate came to the conclusion that the witnesses for the discovery were interested in the prosecution and were not on good terms with the appellant, that the kangi from where the property is said to have been taken was in the open and easily accessible to all and sundry and that in these circumstances it was not safe to hold that the place was in the possession of the accused, or that the property was recovered from his possession. The learned Judges in the High Court, however, took the view that the ornaments belonging to the complainant were taken out by the respondent from the field of Namdeo Anand and that the respondent having given no explanation regarding his knowledge of the place from which the ornaments were taken out, it must be presumed that he muust have kept the ornaments there. It was further held that the fact that the field did not belong to the respondent and that the place was accessible to others would not show that the ornaments were not in his possession but were kept by someone else, in the absence of a statement from the respondent explaining the circumstances under which he came to know about the ornaments.

5. We are satisfied that this was not the correct way of approaching the decision of a case under S. 411, I. P. C. It is the duty of the prosecution in order to bring home the guilt of a person under S. 411, I. P. C. to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accusued had knowledge that the property was stolen property. There is no reliable evidence to prove either of these facts.

6. When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was i