JUDGMENT : Das, J. - This is an appeal by the two Appellants against their conviction u/s 411 of the Indian Penal Code and the sentence of 2 years rigorous imprisonment. Originally, the Appellants along with two others were charged u/s 395 of the Indian Penal Code of which charge they were acquitted. 2. The prosecution case shortly stated is this: The complainant, Satri Singh originally belonged to village Natapara and subsequently came to reside in village Raikeli about fifteen years back. He constructed a house there and settled down with his family. On the night of June 5,1958 all the accused persons along with about twenty others entered into the complainant's house and looted away certain property. At that time the complainant's newly built house was in an incomplete stage and he was sleeping on a cot inside the house near the sadar door. His wife and two daughters were sleeping in that room on the floor. According to the prosecution the miscreants suddenly entered into the house, cought hold of the complainant and tied his hands and legs to the cot. They also tied his eyes. Some one caught hold of his neck and he was making certain groaning sounds at which his wife and daughters woke up. The dacoits thereafter fell on them, tied their feet, hands and eyes and removed all the articles including paddy, ornaments, rice, utensils, cash and crow-bars from his house and left the house. After the dacoits had left, the wife of the complainant got herself extricated from the rope and untied the complainant and her daughters. The complainant went to Nuagan, a village near by and called some people from the locality and lodged the first information report on the following morning. Accordingly, the accused person stood charged u/s 395 I.P.C. 3. The defence of the Appellants was that they along with Kailash Palai (since acquitted) were in cultivating possession of the lands alleged to have been purchased by the complainant from one Bata Singh of Nuapara. The complainant after his purchase wanted these persons to leave these lands but the Appellants were resisting the eviction. Consequently, there was dispute between the complainant and the Appellants previous to the date of occurrence. The complainant after his purchase wanted these persons to leave these lands but the Appellants were resisting the eviction. Consequently, there was dispute between the complainant and the Appellants previous to the date of occurrence. The learned Sessions Judge after careful consideration of the evidence on record came to the conclusion that the prosecution had failed to prove the charge u/s 395 I.P.C. against the Appellants, and accordingly, acquitted them of the said charge. But in view of the recoveries of certain stolen property from the possession of the Appellants he convicted them u/s 411 Indian Penal Code. 4. The articles recovered from the possession of Appellant Luna Singh was a bella (M.O. II) on which the name of the complainant (p.w. 5) was inscribed and certain other silver articles from the thatch of his house. Similarly, a bella (M.O. VI) was also recovered from the possession of the Appellant, Rauta Singh with the inscription of Gangi Dei's name, wife of the complainant (P.w. 6). Certain silver chains were also recovered from his house. The learned Sessions Judge came to the definite finding that none of the prosecution witnesses have testified to the fact that the Appellants were present at the time of the occurrence. He, however, was of opinion that the recovery was properly proved and the articles were satisfactorily identified to be the properties belonging to the complainant and were stolen properties. Under these circumstances the learned Sessions Judge said: Under such circumstances the only presumption that can be drawn is that the accused have received the stolen properties knowing them to be the properties taken in the alleged dacoity, and accordingly convicted them u/s 411, Indian Penal Code. 5. It was argued at the Bar that in order to sustain a conviction u/s 411 I.P.C it is incumbent upon the prosecution to prove that the stolen property was in the possession of the accused and that some person other than the accused had possession of the property before the accused got possession of it and that the accused had knowledge at the time of the receipt that the property was the stolen property. In support of this argument, reliance was placed on a decision of the Supreme Court in Trimbak Vs. The State of Madhya Pradesh. This case was followed by this Court in the case of Balinath and Ors. In support of this argument, reliance was placed on a decision of the Supreme Court in Trimbak Vs. The State of Madhya Pradesh. This case was followed by this Court in the case of Balinath and Ors. v. The State 22 C.L.T. 46 where in Rao J. held that to be liable u/s 411 of the Indian Penal Code, it must be proved that the accused either dishonestly received the property or having received honestly, dishonestly retained it. In both the cases the accused must receive it from another. This decision of Mr. Justice Rao was however explained in a later decision of this Court in the case of Sadasiva Das and Ors. v. The State 24 C.L.T. The main judgment was delivered by Rao, J. My Lord the Chief Justice while agreeing with my learned brother had observed that neither in the Supreme Court case in Trimbak Vs. The State of Madhya Pradesh nor in the case of this Court in 22 Cuttack Law Times page 456 the presumption u/s 114 of the Indian Evidence Act was applied. The learned Chief Justice referred to illustration (a) to that section. In his judgment by way of illustration he stated that if there is some evidence to show that the accused was found near about the place of commission of that either immediately on before or after the commissioner of the crime and was subsequently found in recent possession of the stolen property for which he was unable to give a satisfactory explanation he may be premed to be the actual thief. In the instant case, the learned Sessions Judge had drawn the presumption that the Appellants had received the stolen property knowing them to be the property taken in the alleged dacoity. The definite finding of the learned Sessions Judge was that there is no evidence that the Appellants were present at the place or near about the time of the commission of the offence. The only witness examined with regard to the recoveries from the house of these two Appellants was p.w. 1. P.W. 1 is a man of a different village and according to his own statement he came there for the first time. The house search of these Appellants, it is admitted, was made two days after the occurrence. The only witness examined with regard to the recoveries from the house of these two Appellants was p.w. 1. P.W. 1 is a man of a different village and according to his own statement he came there for the first time. The house search of these Appellants, it is admitted, was made two days after the occurrence. The defence of the Applicants was that it is the police who planted these material objects in to the house of the Appellants at the time of investigation. The learned Sessions Judge without giving any cogent reasons had merely said that this suggestion was a far fetched one. All that he relied upon was that the Appellants at the time of the occurrence was not identified by anybody and the recovery had been properly made and there was no doubt that the properties recovered were the stolen properties. Applying the principles as laid down in 24 Cuttack Law Times the learned Sessions Judge had not given any convincing reason for the application of a presumption u/s 114 of the Indian Evidence Act as given in illustration (a) thereto. Accordingly, it is very difficult for me to maintain this conviction u/s 411 of the Indian Penal Code in the absence of any proof that these persons were found Dear about the place of occurrence or that they had received them from anybody else. The mere recovery of stolen properties certainly is not enough for a conviction u/s 411 I.P.C. I would accordingly set aside the judgment of the learned Sessions Judge, allow this appeal. Accordingly I direct that they be set at liberty forth with. Appeal allowed.. Final Result : Allowed