Norris and Beverley, JJ.
1. In this case we think that the prisoner must be acquitted and discharged. He was tried upon a charge framed under Section 413 of the Indian Penal Code of habitually dealing in stolen goods, and has been unanimously acquitted by the Jury.
2. The very essence of that offence, as was pointed out by the learned Judges who set aside the former conviction of the prisoner, he having been previously tried and convicted, and directed him to be re-tried, is the habitual, that is to say, constant, receipt of or dealing in goods which the prisoner knew or had reason to believe were stolen.
3. There is no evidence on the record to show that the goods which are alleged to have been stolen, assuming them to have been stolen, and assuming that their identity has been satisfactorily established, were received on different occasions. There is some evidence, indeed, namely, the prisoner’s own admission, to show that the goods were received from various persons. And not only is there no evidence on the record to show that the goods were received on different dates, but the Sub-Inspector of Police distinctly says in his evidence: “I could find no evidence as to when the accused became possessed of each of the stolen utensils.”
4. We do not think that a man can be said to be habitually receiving stolen goods who may receive the proceeds of a dozen different robberies from a dozen different thieves on the same day, but in addition to the receipt from different persons there must be a receipt on different occasions and on different dates.
5. The prisoner was not charged, as he ought to have been, under Section 411, and the Jury could not have convicted him under that section. It is very much to be regretted that he was not charged under Section 411. It seems to be a considerable oversight on the part of the Officiating Sessions Judge not to have framed a charge under Section 411. But in the result the only course we can take is to confirm the verdict of the Jury and to acquit the prisoner, and considering that he has been in peril twice upon this charge, we do not think there is any necessity for directing a re-trial.