Short Note : The appellants Dharam Singh and Gurudayal have been convicted under section 394/497 of the Penal Code and sentenced to rigorous imprisonment for 7 years. 2. On the night intervening 1st and 2nd July 1975, a robber/took place in village Mohanpura, police station simaria, district Panna. The robbers entered the thouse of Sheoraj (PW4) and Ishwardeen (PW3). The robbers fired a gun, beat the woman folk and took away some property. Kunjisingh (PWl), who is a resident of the same village, came on the spot with a gun He also fired a shot to scare a way the robbers. They were also chased and one of them, namely, appellant No.2 Gurudayal, was overpowered and caught. Indeed, appellant No.2 Gurudayal, in order to avoid his arrest by Kunjisingh, caused an injury to him with a Gupti but, as earlier stated, he was overpowered. 3. Held: Learned counsel for the appellants does not dispute the fact that there was a robbery as alleged by the prosecution. He only contends that the appellants were not the robbers. As regards appellant No.2 Gurudayal the evidence is overwhelming that he was caught on the spot. He belongs to village Panbadi, which is in Hamirpur district of Uttar Pradesh. His statement is that he was sleeping in the house of Sheoraj. (PW 4). He has not explained as to why he came to village Simaria and was sleeping in the house of Sheoraj. This case was not put to the prosecution witnesses, including Sheoraj, in cross-examination. The evidence of Kunjisingh (PWI) and Suratsingh (PW 2) that appellant No.2 Gurudayal was one of the robbers and he was caught when he was running away must be accepted. The conviction of appellant No.2 Gurudayal is, therefore, well-founded and there is no ground made out for interference. 4. Coming now to the case of appellant No.1 Dharamsingh, the important witness of the prosecution, so far as this appellant is concerned is that Kunji singh (PWI) who lodged the first information report, says that the appellant Dharamsingh was known to him from before. Indeed. Kunjisingh has stated that the appellant Dharamsingh is his cousin sister's son. If Kunjisingh was able to identify the appellant Dharamsingh at the time of commission of the robbery as he now says, there is no reason why his name was not mentioned in the first information report. Indeed. Kunjisingh has stated that the appellant Dharamsingh is his cousin sister's son. If Kunjisingh was able to identify the appellant Dharamsingh at the time of commission of the robbery as he now says, there is no reason why his name was not mentioned in the first information report. The omission of Dharamsingh's name in the first information report shows that the prosecution story that Dharamsingh was identified at the time of robbery is false. 5. Apart from the evidence of identification, there is the evidence of recovery of articles from the possession of appellant No, I Dharamsingh. Articles A-I and A-2, B-1 and B-2, C and D were recovered from his house. These articles are all silver Churas. The appellant Dharamsingh claimed that the Churas belonged to him. These articles were identified in a test identification by Sheoraj (PW 4) and Dashrath (PW 5). According to Sheoraj (PW 4), these articles were stolen in the robbery from his house. Although these articles are not mentioned in the case diary statements of Sheoraj, they are mentioned in the report Ex. P-3 which was sent to the police station on 2nd July 1975 by Ishwardeen (PW 3). In the test identication held on 26th July 1975, these articles were identified by Sheoraj (PW 4) and Dashrath (PW 5). The statements of Sheoraj and Dashrath in Court that these articles belong to Sheoraj gets support from the test identification evidence. The prosecution has, therefore, established that the Churas recovered from the possession of appellant No. 1 Dharam Singh are stolen property and that they were stolen during the course of the robbery. I have earlier stated that the appellant Dharam Singh was known to Kunji Singh (P.W.I) from before. Kunji Singh says that he was able to see all the robbers clearly, but still he did not mention the name of the appellant Dharamsingh in the first information report. From the omission of the name of appellant Dharamsingh in the first information report, it is clear that he did not participate in the robbery. The recovery of stolen property from the possession of appellant Dharamsingh however, leads to the presumption that he received the stolen property knowing it to be stolen. The appellant Dharamsingh cannot, therefore, be convicted under section 394/397, but he can be convicted under section 411 of the Code, Appeal party allowed.