Short Note : 1. The only piece of evidence against the appellant is the recovery of some silver ornaments (Arts. D.G and G-1) alleged to have been made in pursuance of the information given by him vide memorandum Ex.P.10. It has been fully established that on 29-1-1974, a dacoity was committed in the house of the complainant and members of his family including the females were beaten and various ornaments, cash and other articles looted. The recovery was after two days, i.e. on 31-1-1974. All the prosecution witnesses expressed their inability to identify the appellant or any other accused person. By placing reliance on the fact of recovery of the aforesaid three silver ornaments from the present appellant the trial Court convicted the appellant not only under section 395 of the Indian Penal Code but also for the offence of causing simple hurt to the members of the family. It was held that there were 5 persons who participated in the dacoity as per evidence of the prosecution witnesses. The trial Court was of the opinion that since the stolen property has been recovered immediately after two days a presumption under section 114(a) of the Evidence Act could be drawn against the appellant for implicating him for the offence of dacoity and also for causing hurt to the member of the family despite the fact that there was no other evidence. Held : The only question which arises in this appeal is whether the conviction of the appellant for the offence under sections 395 and 323/34 could be sustained merely on the basis of the aforesaid circumstance of recovery of three silver ornaments, which have identified to be stolen property? There is no scope for interference with the finding of facts in respect of the identification of the property and the seizure of the same from the possession of the appellant. The learned counsel appearing for the appellant, however, contended that despite the fact that the aforesaid stolen properties were recovered from the appellant just two days after the date of occurrence, the same was not sufficient to draw an inference about his participation in the dacoity and causing hurt to the occupants of the house. The learned counsel appearing for the appellant, however, contended that despite the fact that the aforesaid stolen properties were recovered from the appellant just two days after the date of occurrence, the same was not sufficient to draw an inference about his participation in the dacoity and causing hurt to the occupants of the house. He, however, contended that the only presumption which could be drawn against the appellant would be of his liability for the offence punishable under section 411 of the Indian Penal Code, and he cannot be held responsible either for participation in the dacoity or for causing hurt to the members of the family. 2. In the present case, three presumptions are possible from the recovery of the stolen goods from the possession of the appellant only two days after the occurrence of the dacoity. First, that the appellant took part in the dacoity; Second that he received the stolen properties knowing that they were stolen in the commission of the dacoity and, Third, that the appellant received the ornaments knowing them to have been stolen. The choice to be made out of the aforesaid three possible presumptions will always depend on the facts and circumstances proved in the present case. It is undisputed that all the properties which were stolen by the dacoits, were not recovered from the appellant. The only articles which were found with the appellant were three items of silver ornaments like suita and toda. The appellants might will have acquired these articles as a receiver of the stolen property. There is no evidence to show that in the village Karbi, where the appellant resides it was known that a dacoity had taken place in village Melhari and particular types of goods had been stolen in the said dacoity. In my opinion, the only legitimate presumption which could be drawn against the appellant is that he knew that the goods were stolen but he had not known that they were stolen in the dacoity or that he himself had participated in the dacoity. The learned counsel appearing for the appellant referred to certain observations made by the Supreme Court in the case reported in Sheo Nath v. State of U.P. ( AIR 1970 SC 535 ). 3. The learned counsel appearing for the appellant referred to certain observations made by the Supreme Court in the case reported in Sheo Nath v. State of U.P. ( AIR 1970 SC 535 ). 3. However, for the reasons stated above, the conviction and sentence of the appellants on two counts for the offence under sections 323 read with section 34 of the Indian Penal Code are set aside. His conviction under section 395 of the India Penal Code is also altered to one for the offence punishable under section 411 of the India Penal Code. AIR 1970 SC 535 referred to. Appeal partly allowed.