Order. 1. These revision petitions are by the convicted accused Nos. 1 to 3 in Sessions Case No. 11 of 1970 on the file of the Assistant Sessions Judge, Trichur. Criminal Revision Petition No. 416 is by the 1st accused, Criminal Revision Petition No 415 by the 2nd accused and Criminal Revision Petition No. 335 is by the 3rd accused. 1st accused has been convicted under sections 457 , 461 and 380 , read with section 75 , Indian Penal Code, and sentenced to rigorous imprisonment for 4 years and to pay a fine of Rs. 200 under section 380 read with section 75 , to rigorous imprisonment for 2 years and to pay a fine of Rs. 200 under section 457 and to rigorous imprisonment for 2 years under section 461, the sentences are to run concurrently. Accused Nos. 2 and 3 are convicted under sections 411 and 414 , Indian Penal Code, and they are each sentenced to rigorous imprisonment for 2 years under section 411 and another two years under section 414. Here also the sentences are to run concurrently. The conviction and sentence have been confirmed in appeal by the Sessions Judge, Trichur. 2. The charge against the accused was that the 1st accused commuted theft of some watches on the night of 26th November, 1969, from the Kerala Watch House, Trichur, belonging to P.W. 1, and the other two accused were found in possession of the watches knowing them to be stolen property. The entry into the shop is stated to have been made through the ventilator in the back of the building. The shop room has a wooden partition and according to P.W. 1 the watches were kept in the front room. The thief having entered the shop through the back ventilator seems to have made a label (sic.) in the wooden partition and secured his entry into the front from where the watches were kept. For a long time there was no clue as to the culprit. On 30th March, 1970, however, the 1st accused who is a previous convict was arrested on suspicion by P.W. 24, the Crime Branch Circle Inspector near the Thevara bridge at Ernakulam at about 8-30 p.m. and from his person four wrist watches were recovered and on information elicited from him a few other watches, M.Os. Nos. On 30th March, 1970, however, the 1st accused who is a previous convict was arrested on suspicion by P.W. 24, the Crime Branch Circle Inspector near the Thevara bridge at Ernakulam at about 8-30 p.m. and from his person four wrist watches were recovered and on information elicited from him a few other watches, M.Os. Nos. 1 to 24 were recovered from various witnesses to whom they were sold by the 2nd accused. The information alleged to have been supplied by the 1st accused is that he had sold the watches to the 2nd accused (the total number of watches alleged to have been stolen was 28, of which 20 were stated to have been sold to the 2nd accused and it was the 2nd accused who, according to the prosecution, had sold the other watches to various witnesses). The 3rd accused is a person hailing from Thalayolaparamba, near Vaikom. He stated that 3 watches were sold to him by the 2nd accused; but he never knew that it was stolen property. The 2nd accused stated that a few watches were sold to him by one Hariharan and he never knew that they were stolen watches. The 1st accused denied the charge in toto. Even his arrest by P.W. 24, was denied by him. The learned trial Judge basing mainly on the recovery has entered the conviction. 3. Important aspects of the alleged crime are seen to have been lost sight of by both the Courts below. First and foremost the recoveries on which the Courts below have based the conviction were made long after the commission of the theft. From the possession of stolen property a presumption may arise that the person in possession of such property is either the thief or a guilty receiver. First and foremost the recoveries on which the Courts below have based the conviction were made long after the commission of the theft. From the possession of stolen property a presumption may arise that the person in possession of such property is either the thief or a guilty receiver. This presumption is drawn under section 114 of the Evidence Act, which reads: “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” Illustration (a) of section 114, which is relevant for the present purpose is to the effect that “the Court may presume 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.” It is pertinent to note that the possession of goods suspected to have been stolen should be soon, after the theft. Recent and unexplained possession of stolen properties would, of course, be presumptive evidence against the prisoner on a charge of theft or robbery; but such possession must in fact be recent, that is to say, soon after the commission of theft as the illustration itself would show. No hard and fast rule can be laid down as to the interval during which such presumption would survive; but the position can Very well be stated that if several months expire the presumption will not be available. In Valayan v. Emperor1 the Madras High Court held that one month is too long an interval for drawing the presumption. In that case the accused was charged with theft of a vessel and some gunny bags and after a month, the gunny bags were traced and he was convicted basing on the recovery. In Valayan v. Emperor1 the Madras High Court held that one month is too long an interval for drawing the presumption. In that case the accused was charged with theft of a vessel and some gunny bags and after a month, the gunny bags were traced and he was convicted basing on the recovery. The Court held: “The lapse of time of one month is too long an interval in the case of property like empty gunny bags to draw with any safety the presumption that the accused was in possession of them knowing them to be stolen or that he was in possession because he was the thief.” The Supreme Court in Tulsiram v. State2 has observed: “The presumption permitted to be drawn under section 114, Illustration (a) of the Evidence Act, has to be read along with the important time factor. If ornaments or things of the murdered person are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case.” 4. Of course, the question as to what amounts to recent possession would vary with the nature of the article. If the article is one not calculated to pass readily from hand to hand, the recovery even after a long interval will be recovery leading to the presumption: “Thus, where two ends of woollen cloth in an unfinished state, consisting of about twenty yards each, were found in the possession of a prisoner two months after they had been stolen, it was held that the prisoner should explain how he came by the property. But on the other hand, where the only evidence against a prisoner was, that certain tools had been traced to his possession three months after this loss, an acquittal was directed; and a similar course was pursued on an indictment for horse-stealing, where the horse was not discovered in the custody of the accused until after six months from the date of the robbery; and where goods, lost 16 months before, were found in the prisoner's house but no other evidence was adduced against him, he was not called upon for his defence.” (videEvidence Act by V.B. Raju, Volume 2, page 1241). In the case on hand the article involved, as seen already, is wrist watch, which can easily be passed from hand to hand and which is easily available in the market. The recovery was made only after an interval of four months. In such a case the time factor is very vital and it is difficult in the circumstances to draw the presumption. 5. There is also the further fact that the prosecution has not succeeded in proving that the articles recovered from the various persons where the articles which were in fact stolen from P.W. 1's shop. According to P.W. 1, about 40 to 50 watches were stolen from his shop on the night of 26th November, 1969 (the total number recovered was only 28, of which one did not belong to them). Of the 40 to 50 watches a vast majority were watches entrusted to them for repair. The rest were new watches exposed for sale. They were kept in the show case and the watches that were entrusted to them for repair were kept in the drawer of the table. This statement of P.W. 1 is not proved at all in the case. According to him, the receipt book maintained in the shop contains the description of the watches; but no receipt book was produced either before the police or before Court. The new watches exposed for sale are, according to him, covered by invoices; but no invoices were produced. Gnangalude receipt bookil watch indevivarangal undu, Receipt Book Policil hajarackiyittilla. Virkenda watch invoice undu. Poyathinda invoice hajarackiyittilla. Avasiya pettilla. Thus the best evidence regarding identity of the watches is. withheld. Mere statement that the watches were Henri Sandoz, Favre-leuba, Fortis, Camy etc. will not suffice because these varieties of watches must be available for sale in other shops also. In the absence of evidence to show that the watches lost by him were in the shop on the night of 26th November, 1969, it is not possible to draw the presumption from the hole made in the wall that watches were stolen from there. From the fact that the ventilator was tampered with or that a hole was made in the wooden-partition one cannot draw the presumption that theft was committed therefrom. Those circumstances can no doubt be presumptive evidence of house-breaking. From the fact that the ventilator was tampered with or that a hole was made in the wooden-partition one cannot draw the presumption that theft was committed therefrom. Those circumstances can no doubt be presumptive evidence of house-breaking. For entering the further finding that a particular number of watches falling under particular categories were stolen, further materials are required and it is those materials that have purposely been withheld. The trial Judge would observe: “That the watches have been lost from the shop of P.W. 1 as alleged is amply made out by the evidence of P.Ws. 1, 2, 3 and 22. The condition of the ventilator, screen and table also point to the fact that a theft ha 1 been committed”. These circumstances, of course, will lead to the inference that house-breaking or house trespass was committed and there the presumption should normally end. The non-production of evidence on the further point, viz., that watches of a certain description were lost is fatal to the prosecution. 6. The 1st accused, it appears has been convicted substantively under sections 457 , 461 and 380 and the other accused under sections 411 and 414; but against both sets of accused evidence is more or less of the same nature, viz., the evidence furnished by the recovery. When that is the position, I fail to see how the 1st accused alone could be convicted for the substantive offence of theft and the other two as guilty receivers. It is also interesting that neither in the case of the 1st accused nor in the case of the other accused has the Court drawn any presumption under section 114 of the Evidence Act. When the sole evidence is the evidence based on the recovery, a conviction can be had only under the particular section of the Penal Code read with section 114 of the Evidence Act. This has not been done by the Court below. These drawbacks could at least have been set right by the appellate Court; but the learned appellate Judge except reiterating the points dealt with by the trial Court and reproducing its conclusions, has not done anything further. The appellate judgment, I am constrained to observe is a mere replica of the trial Court judgment. These drawbacks could at least have been set right by the appellate Court; but the learned appellate Judge except reiterating the points dealt with by the trial Court and reproducing its conclusions, has not done anything further. The appellate judgment, I am constrained to observe is a mere replica of the trial Court judgment. So far as the 1st accused is concerned, we are confronted with the further difficulty that the recoveries, if at all made, were not made on any information supplied by him. The recovery cannot therefore, fall under section 27 of the Evidence Act. The confessional statement alleged to have been made by him is not seen recorded anywhere in the evidence. It is mandatory not only that the confession should be recorded; but it should be recorded in the first person itself. This has not been done. Even if any such confession was made by the 1st accused, it has to be remembered that the recoveries were not made on the basis of his confession; but on the basis of the confession made by the 2nd accused. In this sense also, the conviction of the 1st accused under sections 457, 461 and 380 will have to be vacated. In convicting the 1st accused, the learned trial Judge would observe: “There is no reason why so many independent witnesses should come forward to swear against the accused. Though, therefore, there is no direct evidence regarding the actual theft, as I have already pointed out, the fact that there was a theft, cannot be gainsaid and the factors to which I have adverted, amply make out that it was the 1st accused who was responsible for the theft.” I do not think that this is the correct approach to the question. The point to be proved is whether the alleged articles were in fact stolen from the shop on 26th November, 1969. and further whether the articles produced before Court are those articles. Evidence is lacking on both these points. The 2nd accused has explained. that the watches were entrusted to him by one Hariharan, for sale. That Hariharan, no doubt was not examined; but so long as no evidence is forthcoming to connect the watches recovered with P.W. 1, the Court need not bother about the proof of the plea put forward by the accused. 7. The 2nd accused has explained. that the watches were entrusted to him by one Hariharan, for sale. That Hariharan, no doubt was not examined; but so long as no evidence is forthcoming to connect the watches recovered with P.W. 1, the Court need not bother about the proof of the plea put forward by the accused. 7. I must also observe in this connection that at the fag-end of the trial, three loose sheets purporting to be the list of the watches entrusted for repair were produced and marked as Exhibit P-5. This list was never put to P.W. 1 or the other employees in the shop. The papers are unsigned. It was, however, proved through the investigating officer and when questioned he stated that the list was copied from the original list maintained in the shop. Under such circumstances secondary evidence is not permitted (seesection 65 of the Evidence Act). Under what provision of the Evidence Act the Court allowed the so-called list to go in evidence still remains a mystery. 8. My own conclusion, therefore, is that the prosecution has not succeeded in showing that the watches recovered were watches stolen from P.W. 1's shop on the night of 26th November, 1969; and secondly, that the presumption under section 114 of the Evidence Act is not available to the prosecution in the circumstances of the case. I would, therefore, set aside the conviction and sentence and acquit all the three accused. The watches recovered will be returned to the respective persons, from whom they were recovered. The revision petitions are allowed. Revision Petitions allowed.