The accused is not required to prove their innocence if stolen property is found in their possession. The jury should consider the accused's explanation of possession and decide based on the whole evidence whether the accused is guilty beyond reasonable doubt.

JUDGMENT

1. This appeal is by three appellants, who have been convicted u/s 395, Indian Penal Code, and sentenced to 7 years' rigorous imprisonment each, with the direction u/s 565, Criminal Procedure Code, to notify the address to the police in case "of accused No. 1. Four jurors found the accused guilty u/s 395, while the fifth juror found them guilty u/s 412, Indian Penal Code. The learned Judge has accepted the verdict of the majority of the jury and convicted and sentenced the accused as aforesaid. In appeal several grounds have been taken pointing to the misdirections alleged to have vitiated the learned Judge's charge to the jury. It is enough for our present purpose to refer to only one of them. The evidence, it appears, rested mainly upon the recovery of the stolen articles from the possession of the accused. With regard to the explanation of the law on this head the learned Judge made the following observation: "The law regarding finding of property is this, that if stolen or dacoited property is found in possession of any person soon after the commission of the theft or dacoity, you may presume him to be either the thief or dacoit or a receiver, unless he accounts for possession." Then he proceeds to state the three necessary elements, which give rise to the presumption under the law namely, (a) that the property was found in possession of the accused; (b) that the property is stolen property, and (c) that it was found soon after the theft or dacoity. Then the learned Judge adds that if these conditions are satisfied you may presume against the accused until he proves his innocence, otherwise not. As to what is meant by the learned Judge by the word 'proved' In a subsequent part of his judgment, he says, "if you are satisfied that the presumption can be made yon will see how far the presumption has been rebutted. As to the claim of the articles, allegation is not the same as proof. But if you make the presumption, it. cannot be rebutted by mere denial." Reading these passages together it is evident that what the learned Judge meant to hold and which the jury understood is that if the articles are stolen properties and were found in possession of the accused it is sufficient to prove that they were thieves or dacoits and the rebuttable presumption that arises in law is that the accused are either thieves or dacoits until they succeed by adducing sufficient proof in establishing their innocence. This direction has been considered to be serious misdirection in several cases decided by this Court. In Hathim Mandal v. King Emperor [1920] 31 C.L.J. 310 the learned Chief Justice quoted a portion of the judgment of the learned Chief Justice of England in the case of R. v. Issaac Schama [1914] 11 Cr. App. Rep. 45, where it is said that in a case like the present the charge to the jury should be to this effect: " Where the prisoner is charged with having receivings tolen property, when the prosecution has proved the possession by the prisoner, and that the good; had been recently stolen, the jury may be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But, if an explanation is given, which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jury think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner's guilt. That onus never changes: it always rests on the prosecution." In a case where the evidence of the guilt of the accused rests upon discovery of stolen property from his possession and which is tried by the jury the proper course is to direct that the jury are entitled to take the explanation offered by the accused of their possession. It is not necessary that such claim by the ac