L.S. Mehta, J.
1. The prosecution story in brief is that on March 1, 1968, at about 8 p.m. a dacoity was committed in village Asaki in the houses of Ram Nath, Bhagwant, Bala, Sheo Charan, Johari, Moola, Ram Kishan, Ladhoo etc. The dacoits were 10 or 12 in number. They were armed with guns and fating. They looted the property of the villagers by breaking open the locks and the doors of their houses. The dacoits also burnt Ramnath's hands. They further resorted to gun firing. Sheo Charan, PW. 2, lodged first information report (Ex. P. 1) with the police station, Kela Devi, on March 2, 1968, at 12 noon. Police registered a case under Section 395, I.P.C. and started investigation. Station House Officer Faiz Mohammed, PW 20 reached the place of the occurrence without delay. Ramnath produced empty cartridges of 12 bore gun. The same were seized by the Station House Officer under memo Ex. P.8. Some of the accused were arrested in connection with another dacoity case. The accused Chammu furnished inform it ton to the police on July 5, 1968, that certain articles were available at his residence. That information was reduced into writing and is marked Ex. P. 14. Pursuant to that information the police recovered coat Article 1, blanket Article 2, 'Mathpool' Article 4, one pair of 'Toriyas' Article 5, and a torch Article 6, under memo Ex. P 13 On September 4, 1968, Amar Singh informed the Station House that he had sold certain ornaments to, an ornament dealer at Lashkar. This information was recorded and is marked Ex. P. 15. The Station House Officer reached Lashkar and recovered from Ramesh Chander, PW 25, one 'Bahi', containing an entry (Ex. P. 9) relating to the sale of ornaments, viz., one pair of 'Kadi' and a pair of 'Bangaria' (silver) After necessary investigation the police put up a challan against appellant Amar Singh and others in the court of the Monsiff Magistrate, Karauli. The said Magistrate conducted preliminary inquiry and committed the accused to the court of the Additional Sessions Judge, Gangapur City, to face trial under Sections 395, 397, and 324, I.P.C. The accused were charged under the aforesaid Sections of the Indian Penal Code, to which they pleaded not guilty. In support of its case the prosecution examined 31 witnesses and produced 18 documents. In their statements, recorded under Section 342, Cr.P.C. the accused made total denial of the crime, with which they were charged. They did not produce any evidence in defense. The trial court, by its judgment, dated July 9, 1970, acquitted all the accused of the offences under Sections 395/397 and 324, however, convicted Chammu and Amar Singh under Section 412, I.P.C. and sentenced each of them to seven years' rigorous imprisonment and to pay a fine of Rs. 1000/- in default of payment of which to undergo further rigours imprisonment for one year.
2. Aggrieved by the above judgment, Chammu and Amarsingh have filed the present appeal. The contention of learned for counsel the appellants is that in so far as Amar Singh is concerned, the prosecution has not succeeded in establishing that the pair of 'Kari' or of 'Bangri' sold to Ramesh Chander, constituted stolen property and, therefore, Amar Singh could not have been convicted, under Section 412. I.P.C. Earned Counsel further submitted that the trial court went wrong in convicting the appellant Chammu for the offence under Section 412, as there is no evidence worth the name on the record that Chammu knew that the Articles 1, 2, 4, 5 and 6 were connected with the dacoity. Learned Deputy Government Advocate has supported the judgment of the court below.
3. As regards the first point, Amar Singh, as stated above, furnished information to the Station House Officer Faize Mohammed, P.W. 30, on September 8, 1968, when he was in the police custody, that he has given one pair 'Kari' and pair of 'Bangri' (silver) to one merchant in Sarafa Bazzar at Lashkar This information (Ex. P. 15) was reduced into writing. The Station House Officer went to Lashkar and he recovered the 'Bahi' containing the entry (Ex. P. 8) which is to the effect that the above silver oranaments. weighing 50 tolas, were purchased by him Rs. 30.60 from the accused Amar Singh. According to the witness Ramesh Chandra P.W. 25 the ornaments had been melted. There is no evidence worth the name on the record that these ornaments were connected with the dacoity alleged to have been committed in village Asaki during the night of March 1, 1968. The ornaments, having already been melted, could not have been identified by the prosecution witnesses. Before presumption under Section 411, I.P.C. can arise, the burden rests upon the prosecution to prove that the goods found constituted stolen property. Unless some connection is established between the article said to have been stolen and those recovered no presumption can be drawn that the accused is a thief or a receiver of stolen property. Mere recovery of a 'Bahi' containing an entry pertaining to ornaments is not sufficient to make out an offence under Section 411 or Section 412, I.P.C. It has to be got established that the property, was made over by the accused, to a third person was the stolen property or was connected with dacoity. In this connection, reference is made to Sudhakar v. Dayanidhi : AIR1965Ori114 , wherein Das J, observed that mere recovery of a property is not enough to make out a case under Section 411, I.P.C. Unless prosecution succeeds in proving that the property was stolen property question of drawing a presumption under illustration (a) to Section 114, Evidence Act, does not arise Similarly in State v. Shantibai : AIR1960MP395 , it has been held that the mere fact that a certain article was found in the possession of a certain person is not sufficient to convict the accused under Section 380 or 411, Penal Code, unless it is established that the article in question was a stolen property. In the present case there is absolutely no evidence on record to show that the pair of the 'Kari' and the pair of the 'Bangri', alleged that to have been sold by the accused Amar Singh to Ramesh Chandra, were owed by the villagers of Asaki and they were deprived of them by the dacoits. In this view of the matter, the trial court wrongly applied illustration (a) to Section 114, Evidence Act, to the case of Amarsingh.
4. I now pass on to the property having been recovered on the information and at the instance of the accused Chammu, P.W. 30 Station House Officer Faiz Mohammed had deposed that en July 8, 1968, when Chammu was in the Police custody, he informed that some pre party was kept by him at his house and that he congest it recovered. This information was reduced in to writing and is marked Ex. P.14. Consequent to that information the police recovered coat Article 1. blanket Article 2. 'Hathpool' Article 4, a pair of Toriyas' Ait. 5 and a torch Article 6 at the instance of the accused Chammu, vide Ex. P. 13. This recovery memo stands proved not only by Faiz Mohammed but by the Motbir Bhonru. P.W. 29 Johari says that the Articles 5 and 6 belonged to him. He identified these articles before the Magistrate conducting identification parade as also before the trial court. Article 1 & 2 have been identified by P.W. 2 Sheocharan and 'Hathphool' Article 4 has been identified P.W. 20 Ladu as his own property. The accused does not claim this property as his on. Keeping in the view above evidence the finding of the trial court about the recovery of the above articles on the information and at the instance of the accused Chammu is correct.
5. The only question that services for consideration is whether Chammu is guilty under Section 412 or Section 411. I.P.C. There is no adequate evidence on the record to show that Chammu had the knowledge that the above articles formed part of a dacoity. For the applicability of Section 412. I.P.C. it is necessary for the prosecution to prove (1) that the property in question was stolen property (2) that the possession of such property was transferred by commission of a dacoity, and (3) that the accused received or retained such stolen property. In so far as the recovery of the property from the possession of the accused is concerned, unless the accused explains as to how he acquired possession over the property, a presumption under illustration (a) to Section 114, Evidence Act, can be drawn and it can be held that either he is a thief or a receiver of stolen property. But for the applicability of Section 412, I.P.C. The prosecution has to show something more than the mere possession of the stolen goods. Section 412, I.P.C. requires that the receiver should know or hive reason to believe that the property had been transferred to him on account of commission of a dacoity. If the prosecution is only able to show mare possession, the proper Section applicable is Section 411 I.P.C. In support of this proposition reliance is placed on a Division Bach judgment of this Court reported as Baurgiri and Anr. v. The State I.L.R. 1953 (4) Raj. 476, which has been approved by their Lordships of the Supreme Court in Sheo Nath v. State of U.P. 1970 U.J. (S.C.) 111. In this case it has not been shown that the accused Ghammu knew that a dacoity has been committed and that goods had been stolen in the course of the commission of that dacoity. The identification evidence produced on behalf of the prosecution in respect of Ghammu has not been relied open by the trial court. On the facts of this case, it seems to me that the only legitimate inference which can be drawn is that Chammu knew that the property was stolen, though it cannot the presumed that the accused knew that it was connected with dacoity, Ghammu can, therefore, only be convicted under Section 411, I.P.C.
6. In the result, I accept the appeal of Amar Singh and acquit him of the offence under Section 412, I. P. C. He shall be released forthwith, if not required in any other case. I partially accept the appeal taken by Ghammu and while setting aside his conviction and sentence under Section 412, I.P.C, convict him under Section 411, L.P. band sentence him to 18 month's rigorous imprisonment. The sentence of fine is set aside.