Wanchoo, C. J. - (1.) THIS is a revision by Kishore against the order of the Sessions Judge of Bhilwara dismissing the appeal of the applicant against his conviction by a Magistrate of First Class.
(2.) THE prosecution story was briefly this. THEre was a burglary in the house of one Mangi Lal of Mandal-garh on the night between the 10th and nth of August 1950 and a good deal of property was stolen. It is said that on 8th of September 1950, the police tackled the applicant and at his instance recovered a box containing some of the stolen property. This box was found buried in the field of the applicant. Other persons were also prosecuted in this case but I am not concerned with them. THE evidence against the applicant was only about the recovery of this box containing stolen property from his field. THE applicant denied that any property was recovered at his instance. THE two courts below however, have accepted that evidence for the prosecution to the effect that the box containing the stolen goods was recovered from his field buried under-ground at his instance. THEre is no reason to dis-agree with the courts below as to this finding. But it may be mentioned that in cross-examination after the charge, one of the recovery witnesses, Fateh Singh, said that at the time of the recovery the applicant had said that he was grazing his bullocks and had seen Devia burying this property in his field and that he was going to point out that property. It may be mentioned that Devia was one of the persons who had been prosecuted and whose conviction was upheld by the Sessions Judge and who does not appear to have appealed. The main question which arises is whether the presumption under sec. 114, Illustration (a) can be made against the applicant in this case. I am of opinion that in view of the statement made by Fateh Singh that the applicant had said at that very time that he had seen Devia burying this property in his field, it cannot be said that the stolen goods were in the possession of the applicant. In the face of this statement of one prosecution witness, no presumption can, in my opinion, be drawn in this case against the applicant. Generally speaking, where property is recovered from an open field, as in this case, at the instance of the accused, the question whether the property was in his possession or not depends upon the actual words used by him when giving information to the police. If the actual words used by him are such as to suggest that he had himself put the property there, the court usually presumes that he was in possession of the property. But on the other hand, if the applicant uses no such words when helping in the recovery of the property, it is not possible to presume that the applicant: was in possession of the goods,for it is possible that he may be only knowing that the property was there without being in actual possession of it. In the present case, however, it is in my opinion, not necessary to look to the words used by the applicant at the time he pointed out the property, for there is the evidence of one of the recovery witnesses to the effect that the applicant had said at that very time that he had seen Devia, who also has been convicted, burying this property in his field. I am, of opinion that the applicant should be acquitted. The revision is hereby allowed and the applicant is acquitted. The sentence of imprisonment and the sentence of fine and the sentence in lieu of fine are hereby set aside. If he has paid the fine, it will be refunded to him. As the applicant is in jail, he will be released at once if not required in any other connection. .;