Order Some cable wires belonging to the Trunk Telephone Exchange Office in Hubli were found in the rear portion of a tonga when the tonga was stopped by P.W. 2 Sidramappa and another, near the Life Insurance Office in the night of 29th October, 1966. Accused 2 was driving the tonga and accused I was sitting with him. But the Cable wires has been kept in the rear portion of the tonga. The charges of trespass and theft failed in the Court of first instance which convicted both the accused of the offence of dishonestly receiving stolen property. But, in the appeal, the Sessions Judge acquitted accused 2 of even that offence and confirmed the conviction of only accused 1 who is the petitioner before me. It appears to me that it is not established by the prosecution beyond reasonable doubt that accused 1 either received or retained any stolen property knowing or having reason to believe the same to be stolen property within the meaning of section 411 of the Penal Code. Indeed, the Sessions Judge did not make a clear analysis of the ingredients which have to be established to sustain a conviction under section 411 of the Penal Code. He did not record a finding whether accused 1 had received the stolen property or had retained the stolen property although he thought that he had knowledge of the fact that the property which was in the rear portion of the tonga was stolen property. The main reason which impelled the conclusion reached by the Sessions Judge that accused 2 was not guilty of the offence of which he had been convicted was that when the tonga was stopped by P.W. 2 who was the Octroi Checking Inspector, accused 2 disclaimed any association with the goods in the tonga. The repudiation of accused 2 was used by the Sessions Judge for two purposes. He used it for the exoneration of accused 2, and, with the propriety of the conclusion reached in that way, I am not concerned in this revision petition. But, the improper use which he made of the protestations of the accused 2 in that way was to think that that conduct on the part of accused 2 was some kind of evidence that accused 1 had committed the offence. But, the improper use which he made of the protestations of the accused 2 in that way was to think that that conduct on the part of accused 2 was some kind of evidence that accused 1 had committed the offence. The second mistake committed by the Sessions Judge was to make an excessive use of the evidence of P.W. 2 that when the tonga was stopped accused 1 ‘appeared’ to be running away. It should be remembered that when the tonga was stopped, the first impulse of accused 2 was to disown any association with the goods inside the tonga. Why it should have occurred to him to immediately refer to the goods before anyone even asked him about it is difficult to understand, and, what was missed by the Sessions Judge was that that was a circumstance which prima facie established the fact that accused 2 did know that the cable wires were inside the tonga and that someone had done something improper in depositing those wires in it. That would be the inference to be drawn if it could be said with certainty that accused 2 was himself not the person who had deposited those wires in the tonga. Far from, therefore, constituting any evidence which could implicate accused 1, the conduct of accused 2 was something which was not very favourable to himself although the sessions Judge thought otherwise. However that may be, if in that situation, accused 1 was seen to remove himself from the awkward position in which he had placed himself, that conduct is surely no indication of any culpability. Many persons in that situation would consider it safe to make their disappearance to save themselves from awakardness and embarrassment to which they may become subject to if they continued to remain there. It may be that in a conceivable situation such conduct may constitute prima facie evidence of some improper association in the context of some offence. But, that this case was one such is not established. The third mistake committed by the Sessions Judge was to think that accused 1 should be imputed with knowledge of the fact that the goods were stolen goods merely for the reason that he was familiar with the area from which the goods had been stolen. But, that this case was one such is not established. The third mistake committed by the Sessions Judge was to think that accused 1 should be imputed with knowledge of the fact that the goods were stolen goods merely for the reason that he was familiar with the area from which the goods had been stolen. Accused 1 was a postman in the post office which was contiguous to the Trunk Telephone Exchange Office from which according to the prosecution evidence the goods had been stolen. Now, one of the essential ingredients which the prosecution must establish to prove an offence under section 411 is that the accused 1 knew or had reason to believe that the property received or retained by him was stolen by him. The only material on the basis of which the Sessions Judge found it possible to reach the conclusion that accused 1 knew that the property was stolen property was that he was familiar with the area in which the Trunk Telephone Exchange Office was situate since he was himself an employee in the contiguous place. It is plain that the process of reasoning employed by the Sessions Judge is by no means convincing. Moreover, it was not possible for the Sessions Judge in the circumstances of the present case to say that accused 1 was the person who had either received or retained the property which in his opinion had been stolen. Although it might have been possible for the Sessions judge to conclude that the property was stolen property since it has been identified by P.W. 1 Anant Shastri and P.W. 4 Subba Rao to be the property of the Trunk Telephone Exchange Office, the mere fact that the same stolen property was found in a tonga in which accused 1 and 2 were performing a journey does not necessarily mean that either both of them were in possession of the property which was in the rear portion of the tonga or that any one of them to the exclusion of the other was. The question as to who should be regarded as the person who was in possession of the property and so could be said to have received or retained it for purposes of section 411 of the Penal Code must depend upon the facts and circumstances of each case on the basis of which a proper inference has to be drawn with respect to that matter. In the case before me, all that is known is that accused 1 and 2 were sitting in the front portion of the tonga and that the stolen goods were in the rear portion and that accused 2 when he was apprehended disclaimed that he had anything to do with it. What is further proved is that accused-1 is an employee in an office which is contiguous to the office from which the property was stolen On these materials, it was impossible for the Sessions Judge to think that accused 1 was the person who had received and retained the stolen property in the tonga since the possibility of the stolen property having been kept in the tonga by someone else whoever that someone else is or whether accused 2 himself had kept it in his own tonga could not with certainty be eliminated, and, unless it is possible to say with reasonable certainty that accused 1 was the person who kept the stolen property in the tonga and was intending to take it with him in the tonga and that accused 2 was merely a person whose tonga has been hired for the purpose of the journey, it would scarcely be safe to reach conclusion on the mere fact that accused 1 was sitting in the tonga. But the stolen property found in the tonga was in his possession (Now, illustration (a) to section 114 of the Evidence Act to which the Sessions Judge made no reference reads: “The Court may presume- (a) That a man who is in possession of the 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.” The presumption which is permitted by Illustration (a) could be raised only when the person is in possession of the stolen goods soon after the theft. In the present case the prosecution produced no evidence as to the point of time when the theft was committed or might have been committed, and, so could not depend upon any presumption unless it produced proof that A 1 was in possession of the stolen goods soon after the theft. The prosecution produced no evidence as to the point of time when the Trunk telephone exchange office discovered the theft and, that being so the presumption on the basis of which alone on the materials available to the prosecution in this case accused 1 could have been convicted of an offence punishable under section 411 became unavailable to the prosecution. I allow this revision petition and set side the conviction of the petitioner and the sentence imposed upon him. I acquit him of the offence with which he was charged. The bail bonds are cancelled. S.V.S ------ Revision petition allowed.