JUDGMENT Khan J. 1. The police challaned appellant Charna and Dhaniram before the Special Judge, Morena, under Sections 395 and 397 of the Indian Penal Code for the offence of dacoity. The trial Court acquitted the accused of the offence they were charged with, but convicted Charna under Section 411 of the I.P.C. and sentenced him to rigorous imprisonment for a year and a half. Against this decision the accused has filed this appeal. 2. The prosecution story in short is that on the midnight of 15-5-54, 12 to 15 dacoits armed with Lathies and Phrases looted the house of the complainant Panchamsingh, resident of village Hatharia, The following daya report was lodged at Police Station, Joura in which no name of any of the Badmashes was stated. It, however, contained a list of articles that had been looted, and is marked as Ex.P I. On the following day, the complainant again submitted an additional list of articles which had been looted and it is marked as Ex.P 2. 3. The evidence in this case against the accused was of two kinds. One of the identity of the accused and two, of the recovery of the looted property from the house of the accused. 4. With regard to the first category of evidence, the trial Court did not believe the evidence about identification and acquitted the accused. 5. With regard to the recovery of the stolen articles, it appears, that articles No. 82, 83, 84 and 85 were recovered from a dilapidated house which is said to belong to Charna. It was alleged that this recovery was made at the instance of one Nahar Singh. The prosecution did not examine Nahar Singh and the recovery was made from the house which had no, doors and the place was accessible to all sundry. The trial Court therefore disbelieved the evidence of this recovery and held that nothing was proved by this recovery against the accused appellant. 6. It is said that articles No. 86, 87, 88, 89, 90, 91 and 92 were recovered from the house of the appellant Charna and on the basis of this recovery the appellant has been convicted under Section 411 of the Indian Penal Code. But the accused has claimed all these articles as his. 7. With regard to articles No. 86, 87, 91 the accused produced the bills of Sunars, who made these articles. But the accused has claimed all these articles as his. 7. With regard to articles No. 86, 87, 91 the accused produced the bills of Sunars, who made these articles. The Bills are Ex.D 4, D. 5 and D. 6. The accused has also examined Deepchand and Ghissoolal goldsmiths, from whom the silver was bought and who made these ornaments. The total value of these Bills is Rs. 184/- The trial Court has disbelieved this evidence, because in only one of the Bills (Ex.D 4) it is said what the ornament was made out of the silver bought. This Bill amounts to Rs. 106/-. In the other two Bills the price of the silver is given and the wages for making the ornaments are also entered, but the description of the ornaments is not given. But the two Sunars who have been examined on behalf of the accused depose that from the silver purchased by the accused, they made out ornaments, giving their description. As against this the complainant has not examined any one, who made these ornaments for him. Nor has he given any marks by which he identified these articles which are common. 8. Articles No. 88, 89, 90, 92 of the total value of Rs. 50/- have also been recovered from the house of the accused appellant. He alleges these ornaments to be his, though he has not been able to produce any document in support of his contention. All these articles are ordinary ornaments and the recovery of such common things is not enough to sustain a charge under Section 411 Indian Penal Code, On going through the evidence, it can not be said that the prosecution has proved beyond doubt that these ornaments belong to the complainant and not to the accused. 9. The accused has been convicted under Section 411 of the Indian Penal Code which runs as follows: - Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 10. 10. In a conviction under this Section, the prosecution has not only to prove that the stolen property was found in the possession of the accused, but it has further to prove that the accused knew and has reason to believe that the property was stolen. In the first place this is not the stolen property. It is property obtained in the commission of a dacoity. As such the conviction should have been under Section 412 I.P.C. But even under Section 412, the ingredients of the offence are the same as those under Section 411, namely, that the accused should have known or should have reason to believe that the property which he acquired, belonged to the gang of the dacoits. I am surprised that the trial Court did not consider this aspect of the matter and has not referred to any evidence, which may show that the accused acquired the looted property with the knowledge that it was stolen or looted. In the absence of any proof of it. It is difficult to convict the accused either under Section 411 or 412 of the Indian Penal Code. 11. On the careful perusal of the entire evidence I am of the opinion that the prosecution has failed to prove beyond reasonable doubt that the recovered property belonged to the complainant. 12. For reasons stated above, I allow the appeal and setting aside the conviction and sentence, acquit the accused of the offence under Section 411 Indian Penal Code. The complainant shall get Articles Nos. 82, 83, 84, and 85 while Articles Nos. 86, 87, 88, 89, 90, 91 and 92, which the accused claims to be his, shall be returned to the accused. Appeal allowed.