B.K. Behera, J.
1. The trial court has acquitted the appellant of the charge of dacoity alleged to have been committed in the house of Balabhadra Tripathy (P. W. 1) at village Darada Deuli in the district of Balasore during the night of the 18th/19th January 1980, during the commission of which the culprits had used knives, bombs and lathis and had looted and removed the gold and silver ornaments, cash and other articles from his house owing to paucity of evidence against the appellant that he was one of the culprits. The appellant has, however, been convicted under section 412 of the Indian Penal Code (for short, the 'Code') and sentenced thereunder to undergo rigorous imprisonment for a period of three years as he had been found in possession of M. Os. I to III including cash which had allegedly been removed during the commission of the offence of dacoity and these articles had been seized from his house in the course of investigation by the Officer-in-charge of the police station (P. W. 10) in the presence of P. Ws. 7 and 8. The trial court has drawn a presumption against the appellant under section 114(a) of the Indian Evidence Act (for short, the 'Act) and has held that the appellant had dishonestly received and retained the properties removed during the commission of the offence of dacoity.
2. The learned Advocate appearing for the appellant has not assailed the finding recorded by the trial court that an offence of dacoity had been committed in the house of P. W. 1. The fact of ownership of M. Os. I to III as belonging to P. W. 1 has not seriously been disputed either. It has been contended on behalf of the appellant that in the absence of evidence to indicate that the appellant was in exclusive and/or conscious possession of M Os. I to III, it could not be said that he was in possession of the articles and the trial court was not justified in drawing a presumption that the appellants must have been the receiver of properties removed during the commission of dacoity. Having heard the learned counsel for both the sides on the contention raised on behalf of the appellant, I find that it has considerable force and it is to be accepted for the reasons to follow.
3. Mere recent possession of properties taken in dacoity does not necessarily lead to the presumption that the person in possession is guilty under section 412 of the Code and in most cases, the presumption would be in respect of an offence punishable under section 411 of the Coda if the ingredients of that offence are established. The presumption permitted by section 114 of the Act does not arise until the prosecution has established three facts-namely, the ownership of the articles in question, the theft of them and their recent possession by the accused. Where the prosecution merely shows possession of the stolen articles by the accused, he cannot be said a receiver of the properties stolen during the commission of dacoity. For a conviction under section 412 of the Code, mere proof knowledge or belief that the articles are stolen articles is not sufficient. It must further be established that the accused had knowledge or belief that the possession of the articles had bean transferred by the commission of dacoity. No finding in this regard had been recorded by the trial court.
4. The presumption underthe Act can arise only if the prosecution has, by clear and cogent evidence, established that an accused person has been in possession of the stolen articles. The possession must be conscious possession and not merely the physical presence of the accused in proximity to the object The property recovered from a house in which many persons reside cannot be said to have been recovered from the exclusive possession of the accused.
5. As has been testified by P. Ws. 7, 8 and 10 M. Os. I to III had been kept inside a suit-case in the house of the appellant. There was no evidence as to whom the suit case belonged. It was not a case in which the statement of the appellant had led to the discovery of the article in question. It would be clear from the evidence that the appellant was not the sole occupant of the house. As stated by P. W. 7, the family members of the appellant used to stay in the house and the appellant used to go to Baladati where he had a small hotel and used to return to his village after finishing his business. The evidence of P. Ws. 7, 8 and 10 would not even indicate the appellant's presence on the spot when M. Os. I to III were recovered. There was no evidence to show as to how and under what circumstances M. Os. I to III had been kept inside the suit case in the house of the appellant in his village. Regard being had to these features in the evidence, it would not be reasonable and proper to hold that the appellant was in exclusive and/or conscious possession of M. Os. I to III- No presumption could, therefore, be drawn against the appellant by the application of section 114(a) of the Act and the learned Sessions Judge unjustifiably held the appellants to be guilty of an offence punishable under section 412 of Code.
6. In the result, the appeal succeeds and is allowed. The order of conviction and santenca passed against the appellant under section 412 of the Indian Penal Code is set aside. No specific order is passed directing release of the appellant forthwith as having been convicted on the 11th November, 1980 and sentenced thereunder to undergo rigorous imprisonment for a period of three years, the appellant has already undergone the sentence.