The presumption of guilt under Section 114 of the Evidence Act can be applied to establish the guilt of a person found in possession of stolen property soon after the theft, unless they can provide a satisfactory explanation for their possession.

1. - This is an appeal against the conviction under Sections 302 and 379 of the Indian Penal Code and the sentence of life imprisonment with Rs. 200/- as fine on the charge under Section 302 IPC and sentence of two years rigorous imprisonment on the charge under Section 379 IPC imposed on the appellant Narayan by the learned Sessions Judge, Banswara.

2. On June 26, 1989 Mohan son of Badia who was later on examined as PW 1 in the case, lodged a first information report at the Police Station-Pipalkhut that Devli aged about 1.0 years who was the daughter of his paternal uncle had gone out with sheep in the jungle at about 9.00 a.m. on June 24, 1989 and when sheep returned but she did not return in the evening, the informant and his uncle launched a search for her but could not succeed because it was night time. In the morning, Mohan himself with his uncle and 8-10 persons from the Village went to the Jungle in search of Devli. She was then found lying dead on a slope of a `nala'. An injury on her throat was found and `Hansli' (a silver ornament) weighing about 200 grams which she used to wear was found missing. No one was named in this first information report because there was no eye- witness to the crime and no one knew till then, who was the culprit. Nahar Singh (PW 14), the Investigating Officer has stated that he recorded statements under Section 161 of the Code of Criminal Procedure of Magan, Ram Chandra, Arjun, Miss Nabu and Mrs. Goti. The accused- appellant was arrested on the same day and on his information furnished on July 1, 1989, an axe said to have been used in the offence and the silver `Hansli' belonging to the deceased was recovered. The silver ornament was identified in the test identification held before a Judicial Magistrate and the silver `Hansli' was identified to be that which was worn by the deceased.

3. Navla (PW 5), the father of the deceased deposed at the trial about the missing of his daughter and later her being found to be dead with a throat injury in the Judgle and the silver `Hansli' which she was wearing, missing from her body. He identified in the Court, the silver ornament `Hansli' and also testified that he had identified it before the Magistrate also. He did not say a word about the involvement of the accused in the crime. Nabu (PW 6) has deposed that accused Narayan had taken Devli to Jungle at about 10-11 a.m. in the morning and she had seen Narayan in the Jungle with an axe going towards Jungle. She also deposed that Magan, Arjun and Rama who were grazing their cattle nearby were also there. She further deposed that accused Narayan was her brother and deceased Devli was her sister. She was not asked as to whether she gave this information to someone else also. Ram Chandra (PW 7), a child witness of 10-11 years deposed narayan was seen going towards Jungle with an axe with him and Magan, Arjun, Nabu and Devli had gone in the Jungle for grazing cattle. He also appears to be related to both the sides as the deposed that Devli was her sister and Narayan was uncle. In his cross-examination, he admitted that Narayan was not his real uncle. Arjun Lal (PW 9) is also a child witness of 10 years. He also deposed that he Manganlal, Ramchandra and Devli had gone to graze the cattle at about 9-10 a.m. in the morning. Devli's sheep were lost and she had gone to search them in the Jungle but did not return. Then, he saw narayan going towards Jungle with an axe.

4. The prosecution had relied on these witnesses in order to show that Devli was last sedn together with the appellant narayan. However, the entire evidence of these witnesses at best could prove only the fact of narayan with an axe having gone in the same direction in which Devli had gone earlier. This is hardly an evidence of being last seen together. Apart from the fat that the statements of these witnesses under Section 161 of the Code of Criminal Procedure were recorded six days after the incident, there is no explanation as to why when