The prosecution must prove beyond reasonable doubt that the accused had knowledge that the property in question was stolen in order to establish the offence of theft.

1. This rule has been issued on the application of one Bishun Prasad, who was convicted under S. 411 of the Penal Code, and sentenced to suffer rigorous imprisonment for six months. He was also convicted under S. 414 of the Penal Code, and sentenced to undergo rigorous imprisonment for six months. The sentences were ordered to run concurrently. His appeal has been dismissed by the Assistant Sessions Judge of Barh.

2. The facts that have been found by the Courts below are that on the 22nd February, 1964, at about 9 a. m., a constable named Sarjug Singh, who was posted at Hathidah outpost, lodged a first information report to the effect that on that date earlier at 5.30 a. m., he had received information from a man of village Maranchi that two Railway Protection Force Rakshaks were found selling sugar after having removed the same from the railway wagon standing on the railway line in front of the village. During the course of the investigation of the case, the Investigating Officer had learnt that two railway wagons had been tampered with and few bags of sugar were missing from one of them, which had to pass earlier on the railway line through the place of occurrence, which appeared to be at Jhajha. The Courts below have accepted the prosecution evidence to the effect that six bags of sugar had been pilfered from one of the wagons in front of the said village Miranchi between the 21st and the 22nd February, 1964, at the time when this petitioner along with another Rakshak named Lakhan Paswan was present. This Lakhan Paswan was also convicted, but as stated earlier, the petition is only by Bishun Prasad.

3. The defence was that this petitioner and the other offender travelled by the up train which was a Fast Passenger having left Rampur - Dumra Station at about 8.25 a. m., and had arrived at Mokameh Junction at 8.58 a. m., on the date in question. Their further defence was that they had been falsely implicated on account of enmity. It was said that on the 31st January, 1964, constable Sarjug Singh (informant of this case) was carrying some packets of contraband Ganja which he tried to pass, but was detected by one Rakshak, and the matter was also reported to superior officer. For this reason, the informant was on inimical terms with all the Rakshaks of the Railway Protection Force and had thereby falsely implicated the two accused persons. The defence has not been accepted by the Courts below.

4. Appearing for the petitioner, Mr. Nageshwar Prasad has firstly urged that there is no evidence that the sugar said to have been sold by the petitioner was stolen property. His further contention is that there is also no evidence that this petitioner had retained such property, or was knowingly selling it. In other words, it is urged that the prosecution has not proved by satisfactory evidence his knowledge so as to establish necessary ingredients for the offence either under S. 411 of the Penal Code, or under S. 414 of the Penal Code. There can be no doubt that the law is that when some property is proved to be stolen and the person who is found to be in possession cannot account for its possession, specially when he is found in possession of it soon after the theft of the property, it is only reasonable to conclude that not only he was in possession of the property knowing the same to be stolen, but that his possession of it was dishonest. A mere perusal of the judgments of the Courts below indicates that there has been no real discussion of the evidence on the question whether the sugar being sold by this petitioner and the other accused person was stolen property. The learned Magistrate has no doubt set out as to who were the witnesses on this point and the appellate court has also followed the same reasoning as was adopted by the learned Magistrate, but neither of them have discussed their evidence with any clarity.

Learned Counsel, therefore, took me through the evidence of the prosecution witnesses, specially that of P W.