JUDGMENT : ( 1. ) THE appellant Versingh was charged with and tried for the offence punishable under section 394/397 Indian Penal Code, before the Additional Sessions Judge, Dhar, in Sessions Trial No. 143 of 1981, in his having on 19-2-1981 at about 2 P. M. between villages Kanheri and Bag while armed with a bow and arrows, robbed Shrikrishna P. \v. 1 of his h. M. T. wrist watch Siva, worth about Rs. 250, a two rupee bank note and a blue shirt worth Rs. 100. He has acquitted Versingh of the offence charged but finding him instead guilty of the offence punishable under section 411 Indian Penal Code, has sentenced him to rigorous imprisonment for two years. He appeals. ( 2. ) THE facts of the case in short are that Shrikrishna P. W. 1 on 19-2-1981 at about 2. 20 p. m. was returning to Bag from village Kanheri. In the way suddenly a man armed with a bow and arrows came out of the bush and asked him to deliver him (appellant) whatever he (Shrikrishna)had at the point of being struck with an arrow. Shrikrishna P. W. 1 thereupon was relieved of his Siva wrist watch of 17 Jewels giving also dates with chain worth about Rs. 250, a blue shirt worth about Rs. 100 and a two rupee bank note. Shrikrishna P. W. 1 related the event to villagers at Anjanod and then at 6 p. m. at a distance of 20 kms. from the place of the incident at Bag lodged the first information report, The appellant was arrested on 31-8-1981 and from him a Siva 17 Jewels wrist watch giving dates with steel chain worth about Rs. 250 was seized. Shrikant pawar P. W. 3 conducted a test identification parade and in it Shrikrishna p. W. 1 vide the memo Ex. P. 3 identified the wrist watch to be his. A test identification for identifying the appellant was also conducted in which vide ex. P. 4 Shrikrishna P. W. 1 identified the appellant. ( 3. ) ON these facts when charged with and tried for the offence punishable under section 394/397 Indian Penal Code, the appellant denying his guilt explained that he had already been shown to the witness Shrikrishna p. W. 1 at the Police Station. He claimed that the watch in question had not been seized from him. ( 3. ) ON these facts when charged with and tried for the offence punishable under section 394/397 Indian Penal Code, the appellant denying his guilt explained that he had already been shown to the witness Shrikrishna p. W. 1 at the Police Station. He claimed that the watch in question had not been seized from him. He examined Krishnadutta Shukla D. W. 1 in order to prove but unsuccessfully that on the date of the incident he was confined in the jail at Dhar. ( 4. ) THE learned Additional Sessions Judge though held him not guilty of the offence charged but relying upon the evidence of the seizure of robbed wrist watch from him which he had retained with him, in the circumstances giving rise to the presumption that it had earlier been stolen, the offence was punishable under section 411 Indian Penal Code and sentenced him. ( 5. ) THE learned Additional Sessions Judge has himself not placed any reliance upon the identification of the prisoner as such vide the memo (Ex. P. 4 ). The only question is whether the wrist watch in question was seized from the appellant. Though both the witnesses Shajadkhan P. W. 2 and R. C. Solanki P. W. 4 Station House Officer deposed that the appellant had a watch on his wrist which was seized, it does not appear to be so from the contents of the document Ex. P. 5. Ex. P. 5 is the memo evidencing the arrest of the appellant. There is overwriting regarding the time of arrest. What, however, is important is that it records the fact of the appellant having been searched and he was found to have nothing on his person except his clothes, which he was putting on. The memo (Ex. P. 6), however, which purports to have been made at 2. 30 p. m. does specify the seizure of a watch. A watch could not have been seized unless the accused was first arrested. Indeed the evidence of the Investigating Officer is that the appellant was arrested and then a wrist watch was seized. The sequence of his deposition also indicates that the memo (Ex. P. 5) arresting the appellant had preceded the memorandum (Ex. P. 6) seizing the watch. If it is so as described in the memo of arrest (Ex. Indeed the evidence of the Investigating Officer is that the appellant was arrested and then a wrist watch was seized. The sequence of his deposition also indicates that the memo (Ex. P. 5) arresting the appellant had preceded the memorandum (Ex. P. 6) seizing the watch. If it is so as described in the memo of arrest (Ex. P. 5) then the accused had nothing except the clothes he had put on. It is difficult to believe that he also had a watch on his wrist. In any event there is considerable doubt that the appellant at the time of his being arrested had a watch on his wrist. His explanation that that watch had not been seized from him is plausible. ( 6. ) IT having not been proved beyond reasonable doubt that the wrist watch was seized from the appellant, he could not have been held guilty of retaining the wrist watch knowing that it had earlier been stolen. The wrist watch undoubtedly belongs to the complainant Shrikrishna P. W. 1, ( 7. ) THE appeal in consequence is allowed. The conviction and sentence of the appellant Versingh for the offence punishable under section 411 Indian Penal Code are set aside. The watch (Article A), however, shall be restored to Shrikrishna P. W. 1. Appeal allowed.