Dhavle, J.The petitioner has been sentenced to two months rigorous imprisonment u/s 411, Penal Code, in respect of a calf which belonged to the complainant and was found missing from his bathan on the morning of 16th April 1940. The complainant searched for the missing animal that day, but got no trace of it. On the 17th ha went to the mela at Akhtiarpore, and there found his calf with a police constable, p.w. 6, who had arrested the petitioner on suspicion while trying to sell it. The petitioner had told the constable that he had purchased the calf for Rs. 18 at the male, but the constable had actually found him negotiating the sale of the calf for Rs. 5 and when the constable demanded the receipt that is given at the male in such transactions, the petitioner had none to show in support of his story of purchase. At the trial the petitioner set up the defence that he had purchased the calf at the mela the previous evening and when he was starting for his village in the morning with the calf, the complainant had called in the constable and made him over to him.

2. In rejecting this defence the trial Court relied on the omission of the accused to examine Sheobalak, "the alleged seller of the calf," and the non-production of the receipt for the purchase of that animal, and then said:

The accused has failed to prove his innocence by the defence evidence; on the other hand there is overwhelming prosecution evidence on the record to show that the accused is liable u/s 411, Penal Code.

3. It has been contended by the learned advocate for the petitioner that the onus of proving the guilt of the accused never changes and always rests on the prosecution and that the trial Court was in error in proceeding on the footing that it was necessary for the accused to prove his innocence. The lower appellate Court did not speak of the accused failing to prove his innocence by evidence, but said:

As the calf was found in his possession soon after it was stolen or criminally misappropriated, the onus is on the appellant to show that he had honestly come by it.

4. The learned Magistrate who heard the appeal then examined the explanation of accused that he had purchased the animal in the mela, and after unhesitatingly rejecting it, held on the prosecution evidence that the case against the appellant was proved beyond doubt. Now, there is a certain sense in which the onus of proving the guilt of the accused always lies on the prosecution, for even in those cases in which the accused is required to produce evidence on some point or other (as for example under Sections 105 and 106, Evidence Act), and does so, the rejection of this evidence as unsatisfactory does not necessarily warrant the conclusion that he is guilty, and the prosecution is bound to fail in every case in which the guilt of the accused is not established on the entire evidence beyond reasonable doubt. That the onus of proving the guilt of the accused beyond reasonable doubt "never changes, always rests on the prosecution" is a proposition supported by very high authority.

5. But its importance really lies, as may be seen from the case in Shama v. Abramovitch (1914) 11 ARC 45 in the way the defence evidence is to be treated.

If an explanation is given by the accused 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 prisoners guilt.

6. This well-known passage has been referred to in several Indian decisions, out of which it is sufficient on the present occasion to refer to Kabatulla and Others Vs. King-Emperor, while an interesting application of the same principle will be found in Rajendra Nath v. Emperor decided in this Court by James J. sitting with Saunders J. and reported in Rajendra Nath Laha and Another Vs. Emperor, . Section 101, Evidence Act, places the burden of proving its case on the prosecution, as Illustration (a) puts it:

A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

7. This is the burden that always rests on the prosecution, notwithstanding apparent exceptions furnished by the subsequent sections in that chapter of the Evidence Act with its heading "of the Burden of Proof," an ambiguous expression. Section 103, for instance, deals with the burden of proof as to particular facts, and the illustration under the section deals with two facts, one to be proved by the prosecution and the other by the accused. Even if the accused should fail to prove the matter satisfactorily, he could only be convicted if on the entire record it could be held that his guilt is established beyond reasonable doubt. Section 105 specifically places on the accused the burden of proving that his case comes within the exceptions there referred to, while the Court is required to presume their absence.

8. Section 106 makes a somewhat similar provision about facts especially within the knowledge of a party, and illus. (a) under it, which was applied in Deputy Legal Remembrancer v. Karupa Baistobi (95) 22 Cal. 164 says that when a person does an act with some intention other than that which the character and circumstances of the act suggests, the burden of proving that intention is upon him. But the burden so specifically dealt with is distinguishable from the general burden that lies on the prosecution throughout to prove its case, for, as I have already indicated, a failure to discharge the former in the sense of proving the point in question by satisfactory evidence does not absolve the prosecution from the duty of proving its case.

9. This question was dealt with in detail in Emperor v. U. Damapala AIR 1937 RANG 24 by a Full Bench of the Rangoon High Court; and before saying anything further on the point, it is necessary to deal with another point raised by the learned advocate. The lower Courts have acted on the presumption given in Illus. (a) to Section 114, Evidence Act, which reads:

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.

10. Upon this the learned advocate has contended that before the presumption can be applied, it must be proved that the goods were stolen. Now, the expression "stolen property" as defined or explained in Section 410, I.P.C. includes not only property the possession whereof has been transferred by theft, etc., but also property which has been criminally misappropriated. In this case there is no direct evidence of theft at all, but what is established is that the calf was missing from the bathan of the complainant on 16th April, and was found the next morning with the petitioner in the Akhtiarpur mela in the suspicious circumstances deposed to by the constable. The petitioners story as to how he had come by the animal has also been definitely rejected by the lower Courts. In the circumstances the presumption arises that the calf was stolen property, viz. property the possession whereof has been transferred by theft, or which has been criminally misappropriated, as often happens with straying cattle.

11. In this connexion I would refer to Smith v. Emperor A.I.R 1918 24 a case in which 88 new flannel shirts were seized from the accused. A largo number of shirts of the identical description had been stolen from a factory within a few yards of the shop of the accused, and there was no reasonable possibility of the accused having come by the 88 shirts honestly. There was however a bare possibility that shirts to this number may have been legitimately disposed of elsewhere and found their way into the possession of the accused, but no explanation was given by the accused how he had come by them. Ay ling J., said upon this:

No doubt an accused person is always entitled to hold his tongue: but where the only alternative theory to his guilt is a remote possibility which, if correct, he is in position to explain, the absence of any explanation must be considered in determining whether the possibility should be disregarded or taken into account. The provisions of Sections 106 and 114, Evidence Act, are not without bearing on this point.

12. The conviction u/s 411 was upheld. In the present case the accused has given an explanation, but it has been definitely rejected as false. Illustration (a) to Section 114 becomes applicable in the circumstances and leads to the further presumption that the accused who was found so soon afterwards in possession of the stolen calf was either the thief or had received the animal knowing it to be stolen. This presumption could not have arisen at all if the accused had been able to account for his possession as in Rajendra Nath Laha and Another Vs. Emperor, already referred to, but this condition must not be taken to require the accused to prove his innocence.

13. There is no question in such cases--or in any criminal case--of the accused being required to prove his innocence. The issue in such cases is whether the accused is to be convicted, and he can only be convicted if he is proved to be guilty, and not merely because he fails to establish his innocence. "Not guilty" is a wider expression than innocent. If any explanation that the accused chooses to give is not proved beyond doubt, he cannot claim to be innocent but even so, should the explanation throw any reasonable doubt on the prosecution story, he would be entitled to an acquittal, not indeed because he has proved the facts and circumstances referred to (for example) in Sections 105 and 106, Evidence Act, but because the prosecution has failed to prove its story and establish the guilt of the accused beyond reasonable doubt.

14. The trying Magistrate spoke of the accused having failed to prove his innocence and of there being overwhelming prosecution evidence on the record to show his guilt u/s 411. There is room for criticism in this mode of expression, but it seems to me that in the circumstances of this case there has been no mistake of any consequence. Once the defence version was so emphatically discarded, there was nothing left to throw any doubt on the prosecution story of a loss of the calf and its discovery in the possession of the petitioner in circumstances spoken to by the constable--circumstances from which the guilt of the petitioner can be properly inferred u/s 114, Evidence Act. The result is that there is no reason to interfere with the conviction of the petitioner u/s 411. The sentence is by no means excessive.

15. The application, in revision is dismissed.