JUDGMENT 1. The Appellant in this case was charged under sec. 412 of the Indian Penal Code by the learned Additional Sessions Judge of Chittagong and a jury. The jury unanimously found him guilty under sec. 411 of the Indian Penal Code and the learned Judge, in accordance with that verdict, sentenced him to two years' rigorous imprisonment and to pay a fine of Rs. 500 or, in default, to undergo rigorous imprisonment for one year more. The facts of the case as set out by the learned Judge in his charge are something out of the ordinary. The original allegation made was that this accused was found in possession of a number of silver ornaments, silver pieces and a silver wire which he received from a Magh named Aung Jai who sold them to him for Rs. 10. This property had been stolen on the night of the 1st of June, 1940, during a dacoity at the house of one Rasik Poddar and they were produced by the present Appellant 19 days after the dacoity. 2. What happened next was that this Appellant was arrested and put upon his trial on a charge framed under sec. 412 of the Indian Penal Code with a number of other people who were charged under sec. 395 of the Indian Penal Code. The Appellant, however, was discharged by the committing Magistrate for lack of evidence. He was then put in the box as a witness at the Sessions trial against the other men who had actually been committed. On the conclusion of that trial, the Public Prosecutor applied to the Additional Sessions Judge that the present Appellant should be committed to the Court of Sessions to stand his trial on a charge under sec. 412 of the Indian Penal Code. He was committed on the evidence recorded before the Magistrate who had previously discharged him and was ultimately convicted not under sec. 412 but under sec. 411 of the Indian Penal Code. 3. In the first place, we are far from satisfied that the procedure adopted in putting the present Appellant on his trial was in any way fair to him. He had been discharged and that position was accepted by the authorities to the extent that they subsequently examined him as a witness in order to prove the case against the other accused persons originally sent up along with him. He had been discharged and that position was accepted by the authorities to the extent that they subsequently examined him as a witness in order to prove the case against the other accused persons originally sent up along with him. He did give evidence against those persons and it was only after that that an application was made to set aside the order of discharge in his favour and put him on trial. Whatever may be said about the legality of this procedure, we are definitely of opinion that it was not fair to the present Appellant. 4. On the specific case now before us, the learned Judge put it before the jury as follows: He directed them to disregard a considerable amount of evidence adduced by the prosecution to show that the accused must have known that the articles in his possession were stolen articles. He went on to say that the jury should accept in full the account given by the accused himself which was, of course, that he bought the articles in question from Aung Jai for the sum of Rs. 10. The learned Judge then said that the articles consisted of completed silver ornaments, a large number of the same kind, for example, over 25 Tabizes, a dozen of small silver flowers, a large collection of silver rings and hooks and he put it to the jury that no one but a silversmith would be in possession of such a large number of standardized ornaments in normal circumstances. He also pointed out that there was a lot of silver which had obviously been partially used by a silversmith and that there were also several bundles of silver wire such as are usually used by none but silversmiths for soldering ornaments. He finally said that these ornaments and materials for making ornaments, in such large numbers, had been sold to the accused by a Magh who was obviously a poor specimen of one of the poorest and most backward hill tribes of the province. 5. We have no criticism to offer of this portion of the learned Judge's charge. His summing up of the admitted facts of the case was correct and there can be no doubt that the position which he put to the jury was one which had to be considered in view of the evidence on the record. 6. 5. We have no criticism to offer of this portion of the learned Judge's charge. His summing up of the admitted facts of the case was correct and there can be no doubt that the position which he put to the jury was one which had to be considered in view of the evidence on the record. 6. On another aspect of the case, however, the charge delivered by the learned Judge is definitely liable to criticism. In explaining the law he laid it down that if a person is found in the possession of stolen properly under circumstances which point to his having the knowledge that the property is stolen or reason to believe it to be stolen, then the burden of proof that he is innocently is possession of it or that he has not got the guilty knowledge rests upon him. 7. The learned Judge based this explanation of law on sec. 106 of the Indian Evidence Act "which," he says, lays down that the burden of proving any fact which is specially within the knowledge of any person rests upon that person and there is an illustration to that section which applies to the present case. 8. He then added "this is to the effect that if a person is found in the possession of stolen property...." and went on to use the words quoted above. 9. This is, in our opinion, a clear misdirection. The correct proposition of law was laid down in the case of Isaac Schama v. Jacob Abramovitch 11 Cr. A.R. 45 (1914). In this case which was heard by the Lord Chief Justice and four other Judges, the Lord Chief Justice stated the law as follows: Where the prisoner is charged with receiving recently stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the Jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the Jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the Jury think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has [not discharged the onus of proof imposed upon it of satisfying the Jury beyond reasonable doubt of the prisoner's guilt, That onus never changes, it always rests on the prosecution. 10. It is clear, therefore, that the learned Judge's direction at the very outset of his charge in which he says that if the circumstances point to the accused having knowledge that the property found in his possession is stolen, there is a burden of proof resting on him to show that he is innocently in possession, is not a correct direction. 11. In the case now before us, the learned Judge in the very last sentence of his charge again directed the jury that "the accused received the property with open eyes and without any attempt to verify the Magh's story and he has not discharged the burden of proving that he had not guilty knowledge when he did so." 12. The result, in our opinion, is that the present appeal must be allowed on the ground that the learned Judge misdirected the jury on material particulars. 13. We accordingly set aside the verdict of the jury and the conviction and sentences based upon it. In the circumstances of this particular case as previously referred to, we do not feel called upon to direct a re-trial. In the result the Appellant will be acquitted and released and discharged from his bail.