JUDGMENT H.P. Asthana, J. - The Appellant Mashani, his uncle Habbu and Shahzade were charged Under Sections 302 and 392 IPC read with Section 34 IPC for committing robbery of a pair of karas from the person of Smt. Mumta and then committing her murder on 20-7-1952 at about 10 or 11 A.M. in the field of Rameshwar in village Mahmoodpur Bija, police Station Kannauj, in the District of Farrukhabad. The learned Sessions Judge found that neither of the two charges had been established against any of the accused. He, therefore, acquitted them. He, however, found the Appellant Mashani guilty u/s 411 IPC because a pair of karas which were alleged to be the property of the deceased Smt. Mumta were recovered on 23-7-1952 from underneath a palm tree where they were buried at his instance. He was sentenced to 2 years' rigorous imprisonment and a fine of Rs. 50, and in default of payment of fine, to 3 months' further rigorous imprisonment. 2. The prosecution case was that Smt. Mumta, who was an elderly woman, was scraping grass in the field of Rameshwar Chamar on 20-7- 952 when the accused came there, robbed her of the pair of Karas which she was wearing at that time and the accused Mashani cut her neck with the khurpi which he had with him. It was further alleged that Habbu was standing with a lathi at a distance of about 2 or 4 paces from the (sic) of occurrence. The occurrence was witnessed by P.Ws. Buddhu and Babu who were weeding in the field of one Chhanga, father of Habbu accused, which is at short distance from there. They, on account of fear, did not intervene and try to save Smt. Mumta. They informed Mani Chowkidar of Mianganj about the occurrence. He then went to the scene of the occurrence and found Mst. Mumta lying dead. The accused were not there. He made a search for them but they could not be found. He then went to the police Station Kannauj which is at distance of 6 miles from the (sic) of the occurrence and made a report there the same night at 9.15 p.m. The names of the three accused were mentioned in this report. The dead body of Smt. Mumta was sent for post mortem examination. He then went to the police Station Kannauj which is at distance of 6 miles from the (sic) of the occurrence and made a report there the same night at 9.15 p.m. The names of the three accused were mentioned in this report. The dead body of Smt. Mumta was sent for post mortem examination. The post mortem examination disclosed that there were 9 incised wounds on the dead body and that the death of Smt. Mumta was due to shock and haemorrhage as a result of the injuries especially on the neck. The accused were arrested and Mashani accused led the investigating officer to a palm tree and recovered from there a pair of karas which were packed and sealed and which were subsequently put up for identification. They were identified by the sons, daughter and daughter-in-law of Smt. Mumta as her property. After further investigation the accused were sent up for trial. 3. The accused in their statements denied that they had committed the murder of Smt. Mumta or had robbed her of her ornaments. Mashani further denied that the pair of karas were recovered from his possession or at his instance. 4. The learned Sessions Judge was not satisfied that the murder or Smt. Mumta was committed on 20-7-1952 at about 10 or 11 a.m. in the morning. He was also not satisfied that the motive of the murder was robbery because from the prosecution evidence itself it appeared that her dead body had a number of silver and gold ornaments on it. He was of the opinion that she had been murdered some time on the nights between the 19th and 20th July 1952. He, therefore, disbelieved the entire prosecution evidence about the murder and the alleged robbery. He, however, believed the prosecution evidence about the recovery of the karas from the possession of the Appellant and also the evidence that it belonged to Smt. Mumta, and therefore convicted and sentenced him as stated above. 5. It has been contended before me on behalf of the Appellant that there is no satisfactory evidence about the recovery of the pair of karas (Ex. 1) from his possession. It is, therefore, necessary to examine the prosecution evidence on this point. 5. It has been contended before me on behalf of the Appellant that there is no satisfactory evidence about the recovery of the pair of karas (Ex. 1) from his possession. It is, therefore, necessary to examine the prosecution evidence on this point. It may be mentioned here that the recovery was made in village Mahmoodpur but the prosecution did not produce any witness of that village in order to prove the alleged recovery. No satisfactory reason was given by the prosecution as to why at the time of the recovery no witness of the locality was taken by the investigating officer. It appears from the recovery memo that there were two witnesses at the time of the recovery and they were Ganga Kumar and Chhotey. Ganga Kumar was examined as a prosecution witness in this case. It appears from his evidence that he was a resident of another village Ganga Ganj and was called by the investigating officer to witness the recovery. His evidence, however, does not support the prosecution case. He stated in his evidence that the investigating officer Sri Nagar had taken out the pair of karas (Ex. I) from underneath a palm tree where they were buried. He further stated that the Appellant had not in his presence told the investigating officer that the karas were lying buried at that place, and added that the investigating officer had told him that the Appellant had told him about the karas. He was treated hostile by the prosecution and cross-examined. No doubt his statement before the learned Sessions Judge is some what inconsistent with his statement which he made before the committing Magistrate, but I do not think that on account of this inconsistency his statement before the committing Magistrate should be preferred and that made before the learned Sessions Judge should be discarded. In my opinion this witness is not reliable a.,d no reliance can be placed on h is testimony. Chhotey, who was the other witness who is said to have been present at the time of the recovery, was not examined by the prosecution. That leaves us only with the evidence of Sri Nagar who investigated this case and I do not think it will be safe to base the conviction on his uncorroborated statement. Chhotey, who was the other witness who is said to have been present at the time of the recovery, was not examined by the prosecution. That leaves us only with the evidence of Sri Nagar who investigated this case and I do not think it will be safe to base the conviction on his uncorroborated statement. I am, therefore, of opinion that it has not been satisfactorily proved by the prosecution that it was on the pointing out of the Appellant Mashani that the karas (Ex. I) were recovered from underneath the palm tree where they were lying buried. 6. Assuming for the sake of argument that the karas were lying buried underneath the palm tree in the open space and they were recovered from there on the pointing out of the applicant, the question for consideration which arises is whether in the circumstances the Appellant will be deemed to be in possession of them. It was held in Trimbak Vs. The State of Madhya Pradesh, AIR 1954 SC 39 by the Supreme Court that when the field from which the ornaments were recovered was an open and accessible to all and sundry, it was difficult to hold positively that the accused was in possession of those articles, and the reason was that the fact of recovery by the accused was compatible with the circumstances of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts, and that being so, one fact of discovery could not be regarded as conclusive proof that the accused was in possession of these articles. In this case also the accused was convicted u/s 411 I.P.C. because some ornaments were recovered on his pointing out. The conviction was set aside by the Supreme Court. In view of this decision it cannot be said that the Appellant was in possession of the karas (Ex. 1), even if it is assumed that it was at his instance that they were recovered from underneath the palm tree which was admittedly an open place and accessible to everyone. 7. In order to sustain a charge u/s 411 IPC it is necessary for the prosecution not only to prove that the accused was in possession of property belonging to another person but also to prove that the property was stolen property and he retained possession with that knowledge. 7. In order to sustain a charge u/s 411 IPC it is necessary for the prosecution not only to prove that the accused was in possession of property belonging to another person but also to prove that the property was stolen property and he retained possession with that knowledge. I have been taken through the evidence on the record and I have not been able to find any satisfactory evidence in proof of the fact that the Karas (Ex I) were stolen property and the Appellant had knowledge of it. The learned Sessions Judge definitely found that the charges Under Sections 302 and 392 IPC had not been established. The prosecution came with the definite case that robbery had taken place on 20-7-1952 at 10 or 11 a.m., which case was not accepted by the learned Sessions Judge. In spite of the fact that he held that the charge u/s 302 IPC was not established he, in order to convict the Appellant u/s 411 IPC held that there had been robbery of the Karas Ex. I. In my opinion there is no evidence to sustain this finding. I do not think that merely because a person is found in possession of the property of some other person there would be a presumption by the court that that property was stolen property. The prosecution has to prove by satisfactory evidence that there was theft and the property in question was stolen. In absence of any definite proof on the point no presumption can be drawn in favour of the prosecution about the theft or about the property being stolen. 8. In the circumstances I am of opinion that the conviction of the Appellant u/s 411 I.P.C. cannot be maintained. This appeal is, therefore, allowed and the conviction and sentence of the Appellant u/s 411 I.P.C. is set aside. As the Appellant is on bail he need not surrender; his bail bonds are discharged. The fine if paid shall be refunded.