A person cannot be tried and convicted under Section 411, Indian Penal Code more than once for dishonest retention of stolen property unless there is evidence to show that he had received them on different occasions.

A. V. KRISHNA RAO, J.

( 1 ) THIS appeal raises a question under Section 403, Criminal Procedure Code, The two appellants have been convicted in Sessions Case No. 3 of 1956 by the Sessions Judge, Nellore under Section 411, Indian Penal Code for having on 23-10-1955 dishonestly retained stolen property belonging to P. W. 1 Kancherla Subbayya of Katrayapadu. The theft took place on the night of 21-10-1955. The charge against the first appellant was in respect of a sari lost by the theft. The charge against the 2nd appellant was in respect of a pair of gold mattelu and another sari lost by the theft. The incriminating evidence against them was that on 23-10-1956, they offered to P. W. 5 some jewels and clothes for sale surreptitiously and when P. W. 5 detained them on suspicion, they were found in possession of these and other articles, which were traced to be stolen properties. The other stolen articles found in their possession belonged to one Lingamgunta Kondia of Katrayapadu, the theft at whose house took place a few days earlier than the theft at P. W. 1s house. In respect of those articles, they were previously tried and acquitted in Sessions Case No. 35 of 1953 by the Assistant Sessions Judge, Kavali on similar charges framed under Section 411, Indian Penal Code for dishonest retention. The only ground of appeal pressed by the learned counsel is that by reason of their acquittal in Sessions Case No. 35 of 1955 their trial in Sessions Case No. 3 of 1956 was barred by Section 403, Criminal Procedure Code.

( 2 ) I am of opinion that the contention is well founded and has to prevail. It is established by a long catnap of decisions of other High Courts that where an accused is found in possession of stolen articles forming the subject-matter of distinct thefts, he cannot be tried and convicted under Section 411, Indian Penal Code more than once, unless there is evidence to show that he had received them on different occasions. The leading case is Ishan Muchi v. Queen Empress, ILR 15 Cal 511 (A) decided by a Division Bench of the Calcutta High Court in 1888. It proceeded on the ground that in the absence of evidence contra, the accused may have received all the goods at the same time and that would constitute only one offence. This decision was followed and the principle applied to cases of dishonest retention in Queen Empress v. Makhan, ILR 15 All 317 (B) and in a number of later decisions Sheo Charan v. Emperor, AIR 1923 All 547 (C); Ganeshi Sahu v. Emperor, AIR 1923 Cal 557 (D); Emperor v. Bishun Singh, AIR 1925 Pat 20 (E ). The two decisions last cited related to cases where the previous acquittal was held to bar the subsequent trial.

( 3 ) THE learned Sessions Judge relied on the decision in Dadlomal v. Emperor, AIR 1927 Sind 53 (F) where a contrary view was taken. The ground of that decision was that where properties were stolen at different places and at different dates, the presumption is that they passed from the hands of the thief to the receiver at different dates also. With great deference, I may observe that the question whether the stolen property was received on one occasion or several occasions is one of fact. There is no presumption of law regarding it and the answer must depend on the particular facts and circumstances of each case. In the absence of any evidence effect has to be given to the fundamental rule in criminal cases that the burden is on the prosecution and never shifts. This aspect of the matter was discussed in AIR 1925 Pat 20 (E), Bucknill J. who delivered the judgment of the Bench said that the prosecution cannot base its case or justify its procedure upon any presumption or assumption operating against an accused, unless such presumption or assumption is grounded on evidence and that if any presumption is drawn without evidence, it must be in favour of the accused. I would respectfully agree with the view of Bucknill J. Section 403, Criminal Procedure Code gives effect to the ancient maxim memo de

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