The presumption under section 114 of the Evidence Act that a person found in possession of stolen goods soon after theft is either the thief or has received stolen goods knowing them to be stolen, is not conclusive and depends on the facts and circumstances of each case.

1. - The above revision petitions may be disposed of jointly as they arise from one Criminal Case F.I.R. No. 7/78, registered at Police Station, Gangadhar, district Jhalawar. Revision Petition No. 272/94 has been filed by the accused Dulhe Singh and Nathu Singh, while revision petition No. 308/94 has been filed by Chain Singh. All the three accused were prosecuted for the offences punishable under sections 457 and 380 I.P.C. in the court of Additional Munsiff and Judicial Magistrate, Bhawani Mandi alongwith one Chandra Singh. However, Chandra Singh died during the course of trial. The learned trial Magistrate after completion of the trial convicted and sentence all the three accused petitioners under sections 457 and 380 I.P.C. to two years rigorous imprisonment and a fine of Rs. 500/- under each count. In default of payment of fine, they were to undergo further imprisonment for six months rigorous imprisonment.

2. The facts need not be narrated in detail as the learned counsel restricted his submissions on two counts. The first submission is that the conviction of the petitioners under section-457 I.P.C. is not sustainable. The second submission is that the petitioners have been facing trial since 1978 and 16 years have passed since then, as such, the sentence already undergone by them will meet the ends of justice.

3. In brief, the facts are that in the night intervening 14th and 15th January 1978, theft of golden and silver ornaments and clothes was committed in the house of the informant Chandra Singh (P.W.2). A report of the incident was made on 15.1.78 at the Police Station where crime was registered under sections 457 and 380 I.P.C. The accused-petitioners were arrested after 7 months or so of the incident and on their information under section-27 of the Evidence Act, the ornaments and other articles were recovered. The articles and ornaments have been identified by P.W.2, Chandra Singh, P.W.3, Bhanwar Bai and P.W.4, Smt. Bhagwan Bai. The learned trial court after recording the evidence relied on the prosecution evidence and convicted the petitioners as stated earlier, vide judgment dated, 14.10.87. The appeal preferred by them was also dismissed by the learned Additional Sessions Judge, Jhalawar vide his judgment dated 30.6.1994.

4. Elaborating his first contention, learned counsel contended that the recovery of ornaments and goods itself was not sufficient for convicting the petitioners under section-457 I.P.C. According to the learned counsel, the recoveries were made after 7 months of the incident and a presumption under section 114 of the Evidence Act, at the best, could be that the petitioners received the goods knowing them to be stolen. Learned counsel contended that both the courts below did not address as to how the offence of lurking he use trespass or house breaking by night punishable under section 457 I.P.C. was proved. It was submitted that by mere recovery of the ornaments, presumption of lurking house trespass or house,breaking by night cannot be made. In my view, this argument has substance. It is true that the presumption which could be made under section-114 of the Evidence Act arc not conclusive and they are only illustrative. A presumption of lurking house tres-pass or breaking house by night can be raised in a given case if the miscreant is caught immediately after the incident with the stolen articles and if, in between there is no time to change hands of the stolen articles. In the instant case, the articles were recovered after 7 months; as such, there was no justification to convict the petitioners under section 457 I.P.C. simply on the basis of the recovery of the articles. In my view, a presumption of lurking house trespass or house breaking by night cannot be made in the instant case when the articles have been recovered after 7 months and there was enough time when the articles/goods could have changed hands from one person to another.

5. Another question, which requires consideration