S.N.MODI, J. - (1.) THESE are two appeals, one by Laxminarain and the other by Deva, Shanker and Radhakishan Roth these appeals are directed against the judgment of the Additional; Sessions judge, Bundi, dated December 17, 1974, convicting the appellants and sentencing then as under: (1) Laxminarain under sections Seven years' rigorous impri - 395/397 I.P.C. sonment and a fine of Rs. 1,000/ -, and in default of payment of fine, to further undergo rigorous imprison - ment for 3 years. (2) Radhakishan under sections Seven years'rigorous impri - 395/397 I.P.C. sonment and a fine of Rs. 1,000/ -, and in default of payment of fine to further undergo rigorous imprison - ment for 3 years. (3) Shanker under Sections Seven years' rigorous impri - 395/397 I.P.C. sonment and a fine of Rs. 1,000/ -, and in default of payment of fine, to further undergo rigorous imprison - ment for 3 years. (4) Devaunder under Section Three years rigorous im - 412 I.P.C. prisonment and a fine of Rs. 2,000/ -, in default of payment of fine to further undergo rigorous imprison - ment for six months. ,
(2.) THE case relates to a dacoity which took place at village jethal at about 9 p.m. on April 7, 1973. More than five persons are said to have participated in the dacoity. The dacoits entered the house of PW. 3 Ghanshyam and his brother PW4 Copal and looted the property. They also belabored PW. 3 Ghanshyam and caused several injuries on his person. The first information report about the incident was lodged by Gopilal on the same night. In the first information report, the names of the dacoits were not mentioned as all of them ware strangers to the occupants of the houses of Ghanshyam and Gopal. After spot inspection, the investigation was handed over to PW. 21 Nandsingh on August 17, 1973. Nandsingh arrested caused Deva in another dacoity at village Anthara on July 27, 1973 and recovered one gold chain. Article 1 concerning the present dacoity vide recovery memo Ex. P. 1 from the person of Deva. Accused Laxminarain was arrested in connection with the dacoity at Anthara along with accused Deva on July 27, 1973. Laxminarain's house was searched on August 6, 1973 in the presence of his wife Mst. Ramkanya. Several articles were recovered from the course of Laxminarain concerning this dacoity as well as' other dacoity cases. The investigating officer arrested Radhakishan as veil as Shanker and Nathu during the course of investigation. At the test identification parade, gold chain Article 1, recovered from the possession of Deva was Identified by PW. 3 Ghanshyam arid P.W.4 Gopal as belonging to Ghanshyam. Similarly, at the test identification, Article 2 silver 'kada' was identified by Ghanshyam as belonging to him, and Article 3 wrist watch and Article 5 bag, were identified by P.W. 3 Ghanshyam, P.W. 4 Gopal and P.W. 5 Devkaran as belonging to Gopal. Several test identification parades were held to identify the accused persons. Accused Laxminarain was put to identification test on November 21, 1973. At this test identification, Ghanshyam correctly identified Laxminarain Similarly, Shanker and Radha Kishan were put to identification test on July 11, 1973 and November 21, 1973 respectively. At these tests, Shanker was correctly identified by PW8 Ghanshyam and PW4 Gopal whereas Radhakishan was correctly identified by PW. 3 Ghanshyam.' After usual investigation, the police put up a challan against she four appellants and one Nathu. The accused pleaded not guilty and claimed to be tried. The learned Additional Sessions Judge, Bundi, after trial, as quitted Nathu and convicted and sentenced the other four accused as aforesaid.
(3.) I first take up the case against Deva. He has been convicted and sentenced by the Additional Sessions Judge under Section 412 I.P.C. on the ground that from his possession, one gold chain was recovered from his person at the time of his arrest. Murtzakhan P.W. 11 has deposed that the gold chain was taken out from the neck of the accused Deva by Shri Nand Singh in his presence. Similarly, Nandsingh has deposed that he arrested accused Deva and recovered gold chain from his neck. It is further proved from the evidence of Ghanshyam that this gold chain Article 1 which was recovered from the possession of Deva belonged to him and was taken away by the dacoits at the time of the dacoity. I have carefully gone through the statements of Ghanshyam, Nandsingh and Murtzakhan and see no reason to disbelieve their testimony. There is thus no doubt that the gold chain Article 1, which belonged to PW. 3 Ghanshyam, was found in possession of accused Deva soon after the dacoity. The learned Counsel for the appellant has strenuously argued that even if it is held that the gold chain was taken away by the dacoits and was subsequently recovered from the possession of Deva, there is no justification for convicting under Section 412 I.P.C. The question arises whether Deva has been rightly convicted under Section 412 I.P.C. Illustration (a) to Section 114 Evidence Act provides that person in possession of stolen goods soon -after the theft is either a theft or a receiver of stolen property unless he accounts for his possession. So far as Section 411 I.P.C. is concerned, he is clearly guilty under that section as he has not been able to account/explain how he came into possession of Article 1. But it would not be proper to convict him under Section 412 I.P.C. because that section requires that the receiver should know or have reason to believe that the property had been transferred by the commission of dacoity. There is no such evidence in the present case. The prosecution has to show something more than mere possession of stolen goods for a conviction under Section 412 I.P.C. If the prosecution has proved mere possession and nothing more, the proper section to use is Section 411 I.P.C. I, therefore, hold Deva guilty undo Section 411 I.P.C. instead of Section 412 I.P.C.;