Wanchoo, C.J.—This is an appeal by the State against the acquittal of one Magha of an offence under sec. 411 of the Indian Penal Code. We have heard the Assistant Government Advocate at length, and are of opinion that the appeal should be dismissed.

2. The prosecution story was briefly this. Sagar Mal, who was a co-accused with Magha, is the son of one Deep Chand. It is said that this Sagar Mal stole some ornaments, which were kept in a certain place in the house, while his father was away. After stealing these ornaments, he took them to Magha, who keeps a shop for groceries, and also works as a Sunar. He is said to have given these ornaments to Magha, and took Rs. 3/- from him in return. When Deep Chand returned home, his other children informed him that Sagar Mal appeared to be in funds. So he tried to make sure that nothing had been removed from the house, and when he was doing so, he discovered that ornaments worth Rs. 1575/- had been removed. He then questioned Sagar Mal, who is said to have told him about his giving the ornaments to Magha. The matter was reported in Thana. Later, on search, some of the ornaments were recovered from the shop of Magha. The remaining ornaments were recovered from the house of Deep Chand itself, where they had been buried.

3. Both Sagar Mal and Magha were prosecuted, one under sec. 380 and the other under sec. 411 of the Indian Penal Code. Both of them are said to have made confession before a Magistrate, though both later retracted these confessions. The learned Magistrate acquitted both Magha and Sagar Mal. No appeal has been filed against the acquittal of Sagar Mal; but the State has filed this appeal against the acquittal of Magha.

4. It is the admitted case of the parties that some ornaments, which had been pawned with Deep Chand, were recovered from the shop of Magha. The contention on behalf of the prosecution is that under these circumstances it should be presumed under sec. 114, illustration (a), of the Indian Evidence Act, that Magha was a guilty receiver, if not the actual thief. Maghas explanation in court about the recovery of these ornaments was that they had been given to him by the wife of Deep Chand, who was accompanied by her son Sagar Mal also, for repairs and cleaning.

5. In the first place, once Sagar Mal is acquitted, and there is no appeal against that acquittal, it cannot be said that these ornaments were stolen by Sagar Mal, and given by him to Magha. The case against Magha, therefore, rests entirely upon the recovery of certain ornaments from his shop, and the presumption to be drawn under sec. 114, illustration (a), of the Indian Evidence Act. Over and above this, there is the retracted confession made by Magha. So far as that confession is concerned, it was not believed by the trial court to be voluntary. We are not disposed to dis-agree with that view of the trial court. We may point out that Magha was produced from police custody before the Magistrate, who gave him a few minutes, and then started recording his confession. Only two questions were put to him before his statement was taken down, namely, that if he made the confession, it would be given in evidence against him, and whether he was making the confession voluntarily. It is doubtful whether the Magistrate even told him before taking down his confession that he was not bound to make a confes-sion, though the certificate at the end of the confession is in the form provided in section 164 of the Code of Criminal Procedure. Considering that Magha was coming direct from police custody, the Magistrate did not try to find out from him whether he bad been threatened or induced to make the confession. Under these circumstances, the estimate of the trial court that the confession was not voluntary appears to us to be correct, and we are not prepared to place any reliance on this confession.

6. The next question is whether a presumption should be drawn in this case under sec. 114, illustration (a), to the effect that M

Click Here to Read the rest of this document