P L D 1956 Lahore 190 (PLP)

(A) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession ;" Illustrations in an Act are not statements of the law and can never be allowed to control or limit the meaning of the section to which they are appended. Illustration (a) is, therefore, only one illustration of the many possible instances in which the presumption of theft, or reception of stolen goods with the knowledge of their being stolen, can, under section 114, be raised against a person who is found in possession of the stolen goods. The converse proposition, namely, that a man, who is in possession of stolen goods after some, or long, time after the theft, shall not be presumed to be the thief, or receiver of the goods with the knowledge that they are stolen, cannot be inferred from the illustration. Such an inference would be logically contrary to the language of the section and the illustration. Nor does the illustration lay down that such a presumption must always be made. The section, as well as the illustrations expressly say that " the Court may presume ". The presumptions under section 114 of the Evidence Act are not of law but of fact and, therefore, dependent upon the peculiar facts of each case. The illustration in question--as also the section it self does not purposely give any indication of the length of the time which can be considered as "soon after the theft". It s is a matter to be decided by the Court in the light of the circumstances of the particular case before it. The obvious significance of the expression "soon after the theft" is that so little time has elapsed between the theft and the recovery of the stolen property that it is likely that the person found in possession of it is directly connected with the theft, e.g., where a person is found in possession of the property a few hours after the theft. In some cases‑as in the present case ‑the Court may feel that considering the time that has elapsed between the two events, it is possible to trace the real culprit if the accused discloses the true circumstances under which, or the person from whom, he has received the property. In such a case if the accused gives an account of his possession which is plausible, or has not been disproved, the benefit of doubt must go to him. On the other hand, if the accused refuses to give an explanation or gives one which is either on the face of it false or is proved to be so or leads the Court to the conclusion that he has concealed facts within his special knowledge, the presumption may arise against him that he is either the thief or has knowledge that the property was stolen. In either of the cases just mentioned, the Court has to take into consideration the explanation, if any, given by the accused and the nature of the property, e.g., whether it is such as is likely to have changed hands several times within the intervals. In the light of the above observations, it cannot be said that in the circumstances of the present case the Court raised a presumption which cannot be supported and must be set aside in revision. Some of the articles recovered, e.g., police uniforms and used personal clothing, were not likely to have changed hands more than once or twice in six weeks. The explanation given by the accused that they belonged to him was obviously false. Learned counsel for the appellant relied upon the rulings Ramhit and others v. Emperor (A I R 1922 All. 24) and Ramudu 1yer v. Emperor (A I R, 1923 Mad. 365,). In the Allahabad case, the appellants had been convicted for the offence of dacoity and not one under section 411, P. P. C. The observations in the judgment on which the learned counsel are follows :‑ "Therefore I am not so certain that this identification is correct that I would base the conviction for dacoity upon it, but apart from that it seems to me that even if it be granted that this dupatta was stolen in the dacoity, the fact that it was found some forty days afterwards in the posses sion of Ramhit, not hidden be it noted, but actually openly worn, would lead to the necessary inference that Ramhit took part in the dacoity. I am not sure even if it would be sufficient evidence to convict him under section 411 much less section 412 of the Indian Penal Code." It was further observed :‑ "It is true that Ramhit has not been able to convince the Court of how it came on to his possession, but it is for the prosecution to establish their case and because an accused person loses his head or gets frightened and does not tell the truth, he cannot on that account be convicted." These observations would obviously be not apposite to a charge under section 411, because illustration (a) to section 114 it self requires the accused to "account for his possession." Be it as it may, that case is clearly dissimilar to and is dis tinguishable from the facts of the present case. There the dupatta was the solitary article found in possession of the accused under circumstances which gave rise to no suspicion against him. In the present case, the accused was found in possession of a very large number of articles stolen during one theft under circumstances which raised the gravest suspicion against him. In the Madras case, some gold thread had been stolen from the Port Trust premises in April, 1922, and it was recovered in the following June. It is further stated in the judgment :‑ "On some clues which the police obtained they found that this particular kind of gold thread, which is the subject matter of this case, was purchased by certain Salem merchants from the accused's brother and his gumashta, and in consequence the accused was arrested and charged with receiving stolen property with reference to this gold thread." On these facts, the learned judge refused to raise the presumption against the accused with the following remark :‑ "The stolen properly was traced to the accused's posses sion after nearly two months at least, so that the presump tion under section 114 of the Evidence Act can hardly be applied in this case." It does not appear from the judgment as to when the accused himself was proved to have been in possession of the stolen property. It seems that the accused must have been in its possession much earlier than the time when it was recovered from the Salem merchants or when the accused's brother sold it‑and, therefore, the case may have been covered by illustration (a) to section

114. But this aspect of the case seems to have been overlooked by the learned Judge. In any case if the learned judge intended to lay down the hard and fast rule that if a person is found in possession of stolen goods two months after the theft, no presumption can be raised against him. I respectfully beg to differ from him. In an earlier case E. D. Smith v. Emperor (43 I C 605) of the same High Court, decided by a Division Bench, it was observed:‑ " I do not think this argument carries much weight. The Illustration is only an example of the manner in which inferences can be drawn from the common course of events, human conduct etc., and while the lapse of time is usually an important factor, the importance to be attached to it must vary with the circumstances of the individual case, and will depend largely on the frequency with which the property is likely to have changed hands." I respectfully agree with these observations. I find no force in this revision petition and dismiss it accordingly. A. H. Petition dismissed.