Judgement

KHANNA, J.:- This is an appeal by special leave by Alisher against the judgment of the Allahabad High Court whereby the High Court altered the conviction of the appellant from u/S.412, Indian Penal Code to that u/S.411, Indian Penal Code and reduced his sentence from rigorous imprisonment for a period of three years to that of one year.

2. The prosecution case is that a dacoity took place at the house of Ajab Singh in village Kanjoli within the area of police station Rampur on the night between July 26 and 27, 1965. As a result of that dacoity one D.B.B.L. Gun No.47942, belonging to Dataram, father of Ajab Singh, was carried away by the dacoits. Report about the dacoity was lodged by Ajab Singh with the police. On April 16, 1966, it is stated. Sub-Inspector Hari Prakash Sharma on receipt of intimation organised a police picket on a canal road in police station circle Titawi. At about 6 p.m. the appellant was seen coming from the direction of village Khatauley. The appellant was stopped and the barrel of a gun which had been wrapped in a piece of cloth was recovered from him. The barrel recovered from the appellant bore No.47942 and was of run No.47942 which had been carried away by the dacoits from the house of Ajab Singh on the night between July 26 and 27, 1965.

3. The appellant was thereafter sent up for trial.

4. The appellant in a statement under Section 342 of the Code of Criminal Procedure denied the prosecution allegations and attributed the present case to his enmity with Sub-Inspector Hari Prakash Sharma and one Gajraj Singh, Defence evidence was produced on behalf of the appellant to show that the but of the gun in question had earlier been recovered on March 26, 1966 in village Bharsi in police circle Kandia from one Fateshuddin. The trial Court accepted the prosecution case and convicted the appellant u/S.412, Indian Penal Code. On appeal, the High Court altered the conviction of the appellant to that u/S.411. Indian Penal Code. The High Court in this connection observed that there was nothing to show that the appellant was aware of the fact that the gun had been carried away as a result of dacoity. In other respect, the High Court accepted the prosecution case.

5. In appeal before us Mr. Singh on behalf of the appellant has contended that the conviction of the appellant can be maintained u/S.411, Indian Penal Code only if it is shown that h dishonestly received or retained the stolen barrel knowing or having reason to believe the same to be stolen property. He has referred in this context to illustration (a) to S.114 of the Indian Evidence Act and submitted that as a period of more than eight months elapsed between the date of dacoity and that of the recovery of the barrel of the gun from the appellant, the presumption in accordance with that illustration cannot be drawn against the appellant. In this respect we find that according to illustration (a) to S.114, the Court may presume that a man who is in possession of stolen goods soon after the theft is either the theft or has received the goods knowing them to be stolen, unless he can account for his possession. The illustration makes it plain that the time factor has a material bearing and the Court must keep it in view before it can draw the presumption in accordance with the illustration. The presumption can be raised if a person is found to be in possession of stolen goods soon after the theft. If, however, a long period elapses between the date of the theft and the date of which a person is found to be in possession of the stolen articles, the Court would not be justified in drawing the presumption in accordance with the above illustration. The question as to how much period should elapse after the theft in order to rule out the presumption under illustration (a) would depend upon the nature of the stolen article and the facts of each case. If the stolen article recovered from the accused is one which frequently changes hand, in such a case a much shor