Judgment Narain, J. This application in revision is directed against the conviction of the petitioner under section 411, Indian Penal Code, where in he has been sentenced to undergo rigorous imprisonment for four months besides payment of fine of Rs.250/- in default, further rigorous imprisonment for four months. 2. The Subject-matter of theft is a Robinhood cycle, bearing no. 741490. The prosecution case is that Chandi Mandal had given this cycle in Tilak to his son-in-law Swaminath Mandal. It was stolen in the month of October 1965 from Mahalla Sherpur, within Monghyr Town police station, where Swaminath resided. On the 15th of March 1966 Swaminath had gone to Jamalpur to his friend Sekhar Mandal and, while he was there, he noticed that the petitioner along with the cycle in question came in front of the shop of Shanker Tanti, Swaminath identified the cycle to be his and he along with Sekhar went to him and interrogated him as to the cycle, where upon the petitioner attempted to flyaway but was caught with the cycle and taken to Jamalpur police station. 3. The petitioner's case was that he had purchased the cycle from one Gobardhan Mandal, and in support of this contention he produced the 'receipt (Ext. A) dated the 2nd of January 1966 and examined three witnesses on the point. 4. On a consideration of the evidence and materials before them, the two courts below have upheld the prosecution case that the cycle belonged to Swaminath which had been given to him by his father-in-law, Chandi Mandal, and it was corroborated by the receipts (Exts.1 and 1/1), both of which bore the date, 24th March, 1961. From the evidence it transpired that from the cycle in question its number had been erased. The frame was sent to the Chemical Examiner who gave his report that it read as 741490. Admittedly the cycle had been recovered from the possession of the petitioner. Since there was a serious contradiction in the case of the petitioner as to the person from whom he made the purchase, the petitioner's plea on the point was negatived. The frame was sent to the Chemical Examiner who gave his report that it read as 741490. Admittedly the cycle had been recovered from the possession of the petitioner. Since there was a serious contradiction in the case of the petitioner as to the person from whom he made the purchase, the petitioner's plea on the point was negatived. The appellate court has remarked that at one place the petitioner had said that he had purchased the cycle from one Hira Mistry of Murgia Chak, but later he set up a case of purchase from one Gobardhan Mandal and that Gobardhan Mandal was not examined as a defence witness. In the circumstance, relying upon the presumption to be drawn under illustration (a) to section 114 of the Indian Evidence Act, the courts below found that the petitioner did not sat is- factorily account for his possession, and accordingly convicted him of the offence under section 411, Indian Penal Code. 5. On the point of ownership of the cycle, there is evidence of the father-in-law (P.W. 2) the son-in-law Swaminath (P.W. 3) and the two receipts (Exts.1 and 1/1). These two receipts are carbon copies of the receipts granted by the Popular Cycle and Rickshaw Mart. Ext. 1 dated 24.3.61 shows sale of the cycle to Chandi Mandal on the 24th of March 1961 and Ext. 1/1 bear in the same date shows sale of the seat of the cycle to the same Chandi Mandal. It has been argued for the petitioner that these two exhibits are inadmissible in evidence, since the original was not produced, nor was any foundation laid for giving secondary evidence. Section 65 (c) of the Indian Evidence Act lays down that secondary evidence may be given of the existence, condition, or contents of a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In support of his contention, Mr. Debendra Narain Sinha on behalf of the petitioner placed reliance on the Roman Catholic Mission v. The State of Madras. Objection was taken to the admissibility of these two exhibits on yet another ground. In support of his contention, Mr. Debendra Narain Sinha on behalf of the petitioner placed reliance on the Roman Catholic Mission v. The State of Madras. Objection was taken to the admissibility of these two exhibits on yet another ground. These were sought to be proved by P.W. 2 who in his deposition, has only said that they were written by Kashi Nath but did not say that he knew his handwriting. I agree that for these two reasons no reliance can be placed upon Exts.1 and 1/1, but I have no reason to discard the testimony of P.Ws. 2 and 3 regarding the ownership of the cycle. It will be noticed that the cycle was given to Swaminath Mandal in 1961, and he used it till October, 1965 when it was stolen away. Swaminath having used the cycle for such a long time must be held to be quite competent to identify the cycle. Therefore, even excluding Exts.1 and 1/1 there remains sufficient evidence to establish the ownership of the cycle in Swaminath Mandal. 6. Section 411, Indian Penal Code, says that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment or with fine or with both. Thus, it is clear that one of the ingredients of the offence of section 411 is that the accused had knowledge or bad reason to believe that the cycle was a stolen property. That this is one of the ingredients of the offence under section 411, Indian Penal Code, has been laid down in the case of Triambak v. The State of Madhya Pradesh (A.I.R. 1954 Supreme Court 39) Naturally, therefore, the prosecution has to establish that the petitioner knew or had reason to believe the cycle to be a stolen property. In order to show that the petitioner had the requisite knowledge or belief, reliance has been placed upon the circumstances. The first is that the number on the cycle bad been erased and the second is that when Swaminath approached him with his friend, the petitioner attempted to flee away. It is difficult for me to place reliance on these two circumstances, since these were not put to the petitioner when he was examined under section 342 of the Code of Criminal Procedure. It is difficult for me to place reliance on these two circumstances, since these were not put to the petitioner when he was examined under section 342 of the Code of Criminal Procedure. The case of Dharam Singh v. State of Utter Pradesh lays down that where it did not appear from the examination of the appellants under section 342 that any question was put to K in regard to the finding of the blood on the wall of his Chabutra nor was any of the other appellants asked this question, the High Court should not have used this fact against the appellants. The petitioner not having been afforded any opportunity to explain these two circumstances while he was being examined under section 342 of the Code of Criminal Procedure, it would not be legitimate to draw any inference against the petitioner from these facts. Therefore, these must be excluded from consideration and it must be said that prosecution evidence does not establish one of the essential ingredients of the offence under section 411. 7. The lower appellate court has, however, relied upon the presumption contained in Illustration (a) to section 114 of the Indian Evidence Act to uphold the conviction recorded against the petitioner by the trying Magistrate. Illustration (a) runs as follows :- "The Court may presume- (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." The conflict in the name of the seller of the cycle to the petitioner has weighed with the courts below in rejecting his plea on the point. Mr. Sinha for the petitioner has contended that the finding of the courts below on the point is based on inadmissible evidence. In this connection, he has invited my attention to the evidence of P.Ws. 1 and 3. Evidence of Shankar (P.W. 1) is that the petitioner gave out that the cycle was his and that he had purchased it from Gobardhan Mandal. Evidence of Swaminath (P.W. 3) is that the petitioner was stated before the Sub-inspector of Police that he had purchased the cycle from Rira Mistry. It has been argued that this statement of Swaminath is hit by the provisions of section 162 of the Code of Criminal Procedure. I find substance in this contention. Evidence of Swaminath (P.W. 3) is that the petitioner was stated before the Sub-inspector of Police that he had purchased the cycle from Rira Mistry. It has been argued that this statement of Swaminath is hit by the provisions of section 162 of the Code of Criminal Procedure. I find substance in this contention. In the circumstance, I agree with the argument advanced that there was no valid material before the courts below to find that the petitioner's plea as to the Dame of the person from whom he purchased the cycle was conflicting. 8. The point to be noticed is that even if the petitioner be held to have failed to account for the possession of the cycle, his conviction cannot be sustained, in as much as the presumption under the aforesaid Illustration (a) can be drawn only when the petitioner be found in possession of the cycle soon after the theft. In the present case, theft is alleged to have taken place in October 1965. Whereas recovery from the petitioner was made on the 15th of March 1966, that is after about five months of the alleged occurrence. Thus, it is pertinent to ascertain whether this period of five months can be taken to be "soon after the theft". In my opinion, a period of five months cannot be treated to be "soon after theft". The theft took place in Monghyr and the recovery was made in Jamalpur, both of which are busy towns. Stolen articles can change hands quite rapidly at such places, and, therefore, in the circumstances, it would be illegitimate to call in aid Illustration (a) against the petitioner. The view that I take is supported by reported decisions. In Mavji Nanji v. Emperor the presumption was not when the brass bell stolen in Bombay with the accused after thirteen days related a cycle. The accused was found in one year after the theft and presumption of guilt was held not to arise under Illustration (a) to section 114. For the above reasons, presumption under illustration (a) cannot arise in the present case. 9. Prosecution having filed to establish the necessary ingredients of section 411, Indian Penal Code and the presumption arising out of Illustration (a) to section 144 of the Indian Evidence Act being not available, the conviction recorded against the petitioner can not be sustained. For the above reasons, presumption under illustration (a) cannot arise in the present case. 9. Prosecution having filed to establish the necessary ingredients of section 411, Indian Penal Code and the presumption arising out of Illustration (a) to section 144 of the Indian Evidence Act being not available, the conviction recorded against the petitioner can not be sustained. His conviction and sentence are accordingly set arise and the application is allowed. Application allowed.