M.L. Shrimal, J.
1. This jail appeal ii directed against the judgment dated September 29. 1976 of the learned Additional Sessions Judge, Bundi whereby he convicted the accused-appellants Balya, Madan, Sheoji, Chhitar and Nand Lal under Section 395, IPC and sentenced each of them to five years' rigorous imprisonment, and a fine of Rs. 200/-, in default of the payment of which each to suffer further rigorous imprisonment for three months.
2. The facts giving rise to this appeal are that on the intervening night of 8th and 9th March, 1975 the appellants in the company of other persons committed a dacoity at the house of Bhar warlal, son of Shri Kana Dhakar, situated in village Gordhanpura. The first information report Ex. P.2 of this occurrence was lodge d at the Police Station, Jawaharsagar Dam on March 9, 1975. During the course of investigation a test identification parade was held under the supervision of PW 31 Shri Deochand Meena, in which the accused-appellants Madan, Balaram and Nandlal were identified. The identification memos are Ex. P.54, Ex P.55 and Ex. P.56. Various articles were recovered at the instance of the accused-appellants during the course of investigation, in consequence of the information given by them. The Police after usual investigation submitted a challan against all the five accused-appellants in the Court of Chief Judicial Magistrate. Bundi, who committed them to the Court of Sessions for trial and ultimately the case was tried by the learned Additional Sessions Judge, Bundi The evidence relied upon by the prosecution for getting the accused-appellants convicted can be classified under the following-heads:
(a) Identification of the accused during the test identification parade, and in the court at the trial by the eye-witnesses of the occurrence.
(b) Recovery of the dacoity property at the instance of the accused from various places where it was concealed by the accused or from the persons to whom it was sold by them.
(c) Extra-judicial confessions made by the accused-appellants Chhitar and Sheoji to PW 9 Ramkaran.
(d) Presence of the accused near the place of the occurrence, prior to the incident.
3. The learned Additional Sessions Judge held that the evidence regarding identification of the accused-appellants was far from satisfactory and unreliable. Placing reliance on the evidence of recovery of the dacoity property from the possession of the accused and the extra judicial confessions made by the accused-appellants Chhitar and Sheoji as well as on the evidence regarding the presence of the accused near the scene of the occurrence prior to the time of the commission of the dacoity the learned Judge convicted and sentenced the accused-appellants as mentioned above. Being aggrieved of the aforesaid judgment the accused-appellants have come up in appeal.
4. The controversy in this case has been reduced to a narrow compass. Looking to the preponderance of the evidence on record the learned Counsel, appearing on behalf of the appellants, has conceded that there are no sufficient grounds to challenge the evidence regarding recovery of the stolen property from the possession of the accused-appellants He has further urged that there is sufficient evidence on the record to hold that the various articles recovered from the possession of the accused-appellants have been identified to be that of the complainant. I have looted into the relevant portions of the record and am satisfied that the learned Counsel appearing on be half of the accused-appellants has rightly conceded on this point. I find considerable merit in the contention of the learned Counsel for the appellants that the evidence of PW 9 Ramkaran regarding making of extra judicial confessions to him by the accused-appellants Chhitar and Sheoji cannot be relied upon. This witness was declared hostile and the prosecution was given permission to cross-examine him. He has made a vacillating statement. In his examination-in-chief he did not state that the above mentioned two accused-appellants made extra-judicial confessions before him, but in his cross-examination he made a voltaire face and stated that the) made extra-judicial confessions. The statement of this witness read as a whole does not inspire any confidence. There was no occasion for these two accused-appellants to make extra-judicial confessions to this witness, and the evidence regarding the extra-judicial confessions against these two accused-appellants, cannot be relied upon. As regards the appellants being seen near the place of the occurrence prior to the commission of dacoity it would suffice to say that the only evidence on this point is that of PW 9 Ramkaran, who is alleged to have seen the accused-appellants in the comply of other persons drinking liquor in his own village Budhpura ar.d later on going out of the village the dacoity did not lake place in his own village. It took place in village Gordhanpura. Thus there is no nexus between the occurrence and his seeing them in his village. Moreover this witness has been held to be unreliable by me for the reasons mentioned above. The evidence on record on this point cannot be said to be sufficient to connect the accused-appellants with the crime. Thus the only evidence which remains against the accused-appellants is that of the recovery of the articles, in consequence of the information given by the accused-appellants, alleged to have been taken away by the miscreants during the course of dacoity, which took place in village Gordhanpura, at the house of Bhanwar Lal on the intervening night of 8th and 9th March, 1975.
5. The learned Counsel, appearing on behalf of the appellants has contended that mere possession of the articles, alleged to have-been taken away during the course of dacoity is not sufficient to faster the guilt of the accused-appellants under Section 395 or Section 412, IPC The prosecution is further required to show something more for getting the accused-convicted under Section 395 or 412, IPC As the prosecution has proved mere possession and nothing more the proper section under which the accused can be convicted is Section 411, IPC.
6. It is a common case of the parties that the articles have been recovered from the possession of the accused after 2k months of the occurrence, and the same were identified as that of the complainant. There is no adequate evidence on the record to show that the accused-appellants were actually participating in the actual dacoity. For the applicability of Section 412, IPC, it is necessary for the prosecution to prove : (i) that the property in question was stolen property, (ii) that the possession of such property was transferred by commission of dacoity, and (iii) that the accused received or retained such stolen property. In so far as the recovery of the property from the possession of the accused-appellants is concerned, unless they explain as to how they acquired possession over the property a presumption under Illustration (A) to Section 114, of the Evidence Act can be drawn and it can be held that either he is a thief or a receiver of the stolen property, but for the applicability of Section 412, IPC the prosecution has to show some thing more than the mere possession of the stolen goods. In this case the identification evidence produced on behalf of the prosecution in respect of the accused has not been relied upon by the trial court, and the evidence regarding extra judicial confession has been rejected by me. On the facts of this case, it seems that the only legitimate inference which can be drawn is that the accused-appellants knew that the property recovered at their instance was stolen, though it cannot be presumed that the accused knew that it was connected with the dacoit. The ornaments and coins recovered, at the instance of the accused appellants, are of the nature, which are usually worn and kept by the villagers and it would not be safe to convict the accused-appellants under Section 395 IPC simple on the basis of the recovery of those articles after a period of 21 months of the occurrence.
7. The net result of the above discussion is that this appeal is partly allowed, the conviction of the accused-appellant from Section 395 IPC is converted to Section 411, IPC, and the sentence awarded to them for five years' rigorous imprisonment and a fine of Rs. 200/- each is reduced to two years' rigorous imprisonment and a fine of Rs. 200/- each, in default of the payment of which each of them will further undergo rigorous imprisonment for a period of two months.