James, J.:— At 3 a.m on 13th March 1935 Chaman Ali, a man of Chandhos in Patna District, entered into the female compartment of the Up Kalka Mail train at Hazaribagh Road Station. There he committed robbery of a large number of gold ornaments from the persons of women of the family of Sat Narain of Delhi who had been to Calcutta for wedding. He prevented by intimidation the pulling of the communication cord; and when the train slowed down at Gaya he slipped off and escaped in the darkness. After information had been given to the Railway Police, some of the Delhi passengers remained at Gaya for that day and the next. On the early morning of 15th March when they were waiting on the Gaya platform to continue their journey to Delhi, Chaman Ali arrived by the Bombay Mail from Calcutta changing at Gaya, in order to continue his journey in the Patna Gaya train. While he was on the up platform he was recognized by one of the ladies and was captured. He had in his luggage a considerable portion of the stolen property and on his person the sum of Rs. 1,070 in currency notes. In his luggage was also a new gramophone, with other articles which he had purchased on the previous day in Calcutta.

2. We know now to some extent how Chaman Ali had been occupying his time in Calcutta. After he had arrived there he went to the Kidderpore rickshaw stand where he took a rickshaw to Koila Sarak lane. After a short absence in Koila Sarak lane he returned to the rickshaw and asked to be taken to Watgunj to the shop of a goldsmith. He was taken to the shop of Mahabir Sonar. He told this man that he had some gold ornaments for sale. Mahabir Sonar looked at the ornaments, but he had not sufficient money in hand to be able to purchase them. He accordingly took him to the nearest goldsmith's shop, that of Rajendra Nath Laha, to whom Chaman Ali sold some ornaments for Rs. 683. After a short time Chaman Ali and Mahabir returned to the shop of Rajendra Nath Laha. Chaman Ali said that he had some more ornaments for sale; and Rajendra then purchased two bangles and a gold chain for Rs. 772. Chaman Ali thus had Rs. 1,455. He purchased a gramophone, and made some more purchases in Calcutta, after which he returned to Gaya by the Bombay Mail, carrying with him the other gold ornaments which he had not sold, the balance of the money and the new gramophone and other purchases which he had with him when he was captured. Chaman Ali was in due course placed on his trial before the Assistant Sessions Judge of Gaya and a jury, charged with an offence punishable under S. 397, I.P.C Rajendra and Mahabir were tried jointly with him. Rajendra was charged under S. 411, I.P.C; and Mahabir Sonar was charged under S. 414 for having assisted in the disposal of the stolen property. The jury found all the accused guilty. Chaman Ali was sentenced to seven years' rigorous imprisonment; and Rajendra and Mahabir each to two years' rigorous imprisonment and a fine of Rs. 500. We are concerned here with the appeals of Rajendra Nath Laha and Mahabir Sonar.

3. There does not appear to be any ground for criticism of the charge to the jury so far as it affects the case of Chaman Ali, but learned counsel on behalf of the two appellants attack those directions to the jury which relate to the charges under Ss. 411 and 414, I.P.C The manner in which the property was acquired by Rajendra as set out above is to be found in the account given by Rajendra himself to the police and in that of Mahabir Sonar together with the account given in Court by the accused Chaman Ali, and the two witnesses who were examined for the prosecution, the rickshaw puller and Surendra Nath Dutta, the sarkar of the accused Rajendra Nath Laha. These accounts agree, and it cannot be questioned that they are substantially true. If corroboration were needed, it is afforded by the fact that the money found on Chaman Ali when he was captured represents approximately what would be left after he had purchased the gramophone and the other articles which were found with him. The value of the stolen property according to the first information was Rs. 4,357. The value of the stolen property found with Chaman Ali when he was arrested was Rs. 2,790, so that we may infer that the articles sold to Rajendra were part of the property stolen in the train. But at the same time we must also infer that the price paid for it by Rajendra was such as to render it extremely improbable that he believed the property to have been stolen. The bulk of the golden ornaments purchased on the 14th were melted down on 16th March but there were two bangles and a chain which had not been melted down. This was because Rajendra, needing some money to complete the amount necessary for the second purchase, pawned the bangles and the chain at a neighboring shop. He redeemed them on the 16th but being again in need of money on the 17th, he pawned them again. When the police came to his shop on the 18th, he redeemed them and produced them for inspection. There was some confusion over the identification of the bangles, but the chain was identified as part of the stolen property.

4. Mr. Manohar Lal on behalf of Rajendra Nath Laha complains that the learned Assistant Sessions Judge, addressing the jury on the subject of the identification of this chain, when he pointed out that the weight as given in the first information was eleven bharis where as its actual weight was eight and a quarter bharis, did not draw special attention to the statement of one of the women in evidence that the weight of her chain was eleven bharis. This omission would in any event have been a matter of small importance, and indeed it is this kind of meticulous detail which is so commonly found, and regarded as required in charges to juries, which has led in this case to actual misdirection on points of real importance. As the Court of criminal appeal remarked in 11 Cr App R 49,1 to which reference has been made by Mr. Manohar Lal, we must not be too critical in dealing with the summing up of a Judge after a lengthy trial and speeches by counsel. As a matter of fact, the question of whether the chain was properly identified or not was not of great importance in this case, so far as it affected the alleged receiver for reasons which I shall presently show, and the stress which was laid upon it must have added to the confusion in the minds of the jury. The learned Assistant Sessions Judge remarked as a fact beyond dispute, as indeed it was, that:

The accused Rajendra purchased the articles in open market in the ordinary course of his business through Mahabir Sonar, who sells and purchases gold ornaments and who according to Rajendra is reported to be honest, at a price which according to the evidence on the record was not at all unreasonable.

5. Indeed the fact that the articles were purchased openly for this price was a part of the prosecution case. The rickshaw puller who saw the business being conducted was a prosecution witness and Rajendra's sarkar was called for the prosecution to prove the transaction. As regards this general account of the transaction, the matter should have been treated as admitted by all parties and this should have been taken as the starting ground for examination of the question of whether there was evidence that Rajendra had dishonestly received the stolen property or that Mahabir had dishonestly assisted in the disposal of it. The case is a stronger one than that of Isaac Schama and the learned Assistant Sessions Judge ought to have told the jury that the onus which might have been cast on the defence by a failure to explain how the property came into the possession of Rajendra had been discharged and that it was for the prosecution to prove substantively by direct or circumstantial evidence that he had guilty knowledge. Thus the identification of the chain was not a matter of such great importance. If the jury had been applying the presumption permitted by Section 114 of the Evidence Act, that is to say, if the only evidence available had been that Rajendra was in possession of stolen property and that he had been unable to account for his possession, it would have been highly necessary to prove that this chain actually found in his possession was stolen property because, unless he was found in possession of property actually identified as stolen property, the presumption could not be applied. But when he had satisfactorily accounted for his possession, so that the question of the application of Section 114 of the Evidence Act no longer arose, then it was necessary to show by evidence, direct or circumstantial, that there was some collusion between the thief and the receiver or that the receiver had real reason to believe that the property which he had purchased was stolen. In this case, if there had been any real evidence of this nature, on which a reasonable person could convict either of these two accused, we may suppose that the matter of the identification of the chain would have presented little difficulty to the jury, since it is practically certain that all or nearly all of the articles, purchased by Rajendra were stolen property.

6. At the every end of his charge, the learned Assistant Sessions Judge did say that it was not necessary for the accused to prove affirmatively that he came by the goods innocently; and that it was sufficient if he had given an explanation which might raise a doubt in the mind of the jury as to his guilt. But although these words are used it does not appear that the learned Assistant Sessions Judge really appreciated what the position was and it is practically certain that the jury did not. The learned Assistant Sessions Judge throughout his charge is confused between the application of the presumption admissible under Section 114 of the Evidence Act, and the application of the ordinary law that the onus lies upon the prosecution. This confusion appears particularly in his dealing with one point which was treated as circumstantial evidence against the accused to be considered by the jury. He had previously directed that the jury must hold that all the ornaments sold to Rajendra which had not been identified were not stolen property; but he later on discussed the question of whether the melting down of the ornaments which were not stolen property was to be treated as evidence of the fact that Rajendra had reason to believe that they were stolen property. Again the pawning of the chain which was identified as stolen property was treated as circumstantial evidence of the fact that Rajendra believed it to be stolen property. But if the different treatment of the chain implied that Rajendra regarded it as something different from the other property, then the melting down of the property which he did not believe to be stolen would have no significance one way or the other. The learned Assistant Sessions Judge addressing the jury, as if the melting down would be significant of guilt, pointed out that the melting down was-done not immediately after the articles were purchased but two days later. Stolen or not stolen, the jury are left to determine whether melting down two days after purchase is evidence of guilt. What the learned Assistant Sessions Judge ought to have said was that men who purchase gold as bullion convert it into bullion in the ordinary course of their business, and that there was no evidence to show that the melting down was as an unusual act, or that it was done in unusual circumstances and that in the absence of such evidence no significance at all could be attached to the fact that the articles were dealt with in the ordinary way of business.

7. Similarly with regard to the pawning: it is difficult to see by what course of reasoning an inference could be drawn that a man knew himself to be in possession of stolen property from the fact that he took this property as it was and pawned it with a neighbour, instead of melting it down. In the absence of evidence to show that pawning was unusual or that the article was pawned with some suspicious secrecy, the learned Assistant Sessions Judge ought to have told the jury that the prosecution had failed to prove that the pawning was in any (sic) way suspicious. Instead of that he remarked that it was redeemed on the 16th and again pawned on the 17th. He might well have remarked that if the pawning was evidence of guilt, the prompt redemption should be evidence of innocence, but he ought to have said that as the matter stood the pawning was evidence of nothing at all except of the fact that Rajendra needed money for the completion of his transaction. In his pucea bahi Rajendra Nath Laha had entered his purchase, describing the gold by weight but not in detail. This pucca bahi was shown to the Police Officers on 18th March. When the sarkar, Surendra Nath Dutt, was examined in the committing Magistrate's Court, he produced a Kutcha bahi in which the details were shown. This was duly proved in the Sessions Court by the witness for the prosecution and was placed on the record as an exhibit for the prosecution, with no objection from the prosecution counsel. No further questions regarding this book were put to the witness by counsel for the Crown; yet the learned Assistant Sessions Judge has addressed the jury on this point in a manner which would imply that if details are not entered in the pucca bahi, guilty knowledge on the part of Rajendra will be implied, an imputation which may be rebutted if the jury considered that the Kutcha bahi is genuine. If the katcha bahi rebutted any adverse inference which may be drawn from the pucca bahi, the learned Assistant Sessions Judge should have said that the inference was rebutted, since this document had been proved on behalf of the prosecution in the case.

8. The charge is vitiated throughout by the assumption that Rajendra and Mahabir had to prove their innocence. When the evidence is examined in detail, we find that if it had been our function to charge the jury, we should have been obliged to say that there was no evidence direct or circumstantial of guilty knowledge on the part of the accused Mahabir.

9. There is also no real evidence of guilty knowledge on the part of Rajendra. There is positive evidence of innocence in the open sale for proper consideration, which would certainly not have been given by a receiver for property which he knew or believed to be stolen. The presumption under S. 114 was fully discharged by the explanation given by Rajendra, which was not merely a plausible explanation but was an explanation completely proved to be true. The learned Assistant Sessions Judge had explained this to the jury, but if he had explained to them that what was needed in order to justify a conviction was actual evidence implying guilty knowledge on the part of Rajendra, it is impossible to believe that any jury of reasonable men could have returned a verdict of guilty. For ourselves we think that the proper way to charge the jury would have been to have told them that when once the presumption under S. 114 ceased to be applicable, there was no evidence of guilty knowledge at all. This misdirection which runs throughout the charge is a most serious error vitiating the whole of the conviction based on it. The omission to mention before the jury some small items of corroborative or discrepant evidence may be comparatively unimportant, particularly in a case where the jury had been addressed by advocates on each side. But the omission to make it clear to them exactly what they have to decide and how they have to proceed to decide it or, as in this case, the stating of these points in a manner which is positively misleading, is a very serious misdirection since it is the business of the Judge to explain clearly to the jury what is the point which they have to decide. In this case the misdirection runs through practically the whole of the charge and it is impossible to support the conviction. The appeals must, therefore, be allowed, the convictions are set aside and the appellants will be acquitted and discharged.

Saunders, J.:— I agree.

B.D/A.L

10. Appeals allowed.