Order This revision is directed against the judgment of the learned First Additional Sessions Judge, Madurai, confirming the conviction and sentence passed by the learned Second Additional Assistant Sessions Judge, Madurai, against the petitioner under Section 341, I.P.C., to undergo simple imprisonment for one month, but altering the conviction under Section 397, I.P.C., into one under Section 392 read with Section 397, I.P.C., but confirming the sentence of seven years rigorous imprisonment with a direction that the sentences would run concurrently. 2. The brief facts of the prosecution case which give rise to this revision can be narrated as follows: P.W. 1 is the resident of Kumbakonam. It is alleged that on 14.5.1981, he came to Madurai in connection with the saree business and he was staying at New Raja Lodge at Thanappa Mudali Street. The fourth accused, who was driving cycle-rickshaw for hire, was employed by P.W. 1 to visit various shops. On 15.5.1981, P.W. 1 sold some of the sarees to P.W.5 at his shop and he gave Rs.286/- and a cheque (Exhibit P. 19) for Rs.2,000/-On the same night, he vacated the room in the Lodge and proceeded to the bus stand at Madurai in the cycle-rickshaw driven by the fourth accused, but the fourth accused did not take him to the bus stand straightway. He was driving the cycle-rickshaw along Alanganallur Road and after reaching the railway gate near the bridge, the fourth accused stopped the rickshaw and under the pretext of attending to the natural call, he went underneath the bridge. At that time, another cycle-rickshaw driven by P.W.2 carrying accused 1 to 3 and 5 came there. The said accused got down from the said rickshaw. The fourth accused also joined with them. At the instigation of the fourth accused, the other accused began to attack P.W. 1 while the fourth accused caught hold of the neck of P.W. 1. The second accused cut P.W. 1 with the aruval (M.O. 48) on his right thigh and waist indiscriminately. The fifth accused beat him with hands on his back. The first accused broke a soda bottle in the rickshaw and attempted to beat him with the soda bottle. When P.W. 1 warded off, it fall on his right hand and caused two injuries. The fifth accused beat him with hands on his back. The first accused broke a soda bottle in the rickshaw and attempted to beat him with the soda bottle. When P.W. 1 warded off, it fall on his right hand and caused two injuries. The third accused beat P.W. 1 with M.O. 49 irumbu pattai as a result of which P.W.1 sustained injury in his left palm. While accused 1 and 5 caught hold of P.W. 1, the fourth accused removed the leather bag kept in his cycle-rickshaw and kept it in the cycle-rickshaw of P.W.2. The second accused took the box (M.O. 27) of P.W. 1 and kept in the cycle-rickshaw of P.W. 2. Then accused 2 to 5 proceeded in the cycle-rickshaw towards north. The first accused was running towards south. P.W. 1 chased them raising noise. When they were approaching a banian tree, on hearing the noise of P.W. 1, P.W. 3 and two others caught hold of the first accused and he was taken to the Central Bus Stand in a town bus driven by P.W.10. Then they gave information to the Control Room Police. P.W. 17 and other police constables came there and they took the first accused, P.W. 1 and P.W.3 to B-3 Police Station. P.W. 1 was sent to the Government Rajaji Hospital and he was treated by P.W. 15 for the injuries sustained by him and he was admitted as an inpatient. P.W.20, the S.I. of Police rushed to the hospital and recorded the complaint (Exhibit P-1) given by P.W. 1 at 3 a.m., on the next day. Then he registered a case and arrested the first accused at B-3 Police Station. The second accused was arrested by P.W.21 on 23.5.1981 at Mariamman Theppakula Maiyya Mandapam. He gave a voluntary statement, the admissible portion of which was marked as Exhibit P-7. In pursuance of the said statement, he took P.W.21, the Deputy Inspector of Police and his party to the place behind the bridge near railway gate level crossing at Thathaneri Anaiyur Road and produced M.O.48 aruval, which was seized under the mahazar Exhibit P-8. Then the second accused took P.W.21 and his party to P.W.13, who was put up at Melakailasapuram and from him M.O.27, the box along with sarees (M.Os.3 to 6, 18 to 25, 32 to 38, 41 and 42) were recovered under the mahazar Exhibit P-9. Then the second accused took P.W.21 and his party to P.W.13, who was put up at Melakailasapuram and from him M.O.27, the box along with sarees (M.Os.3 to 6, 18 to 25, 32 to 38, 41 and 42) were recovered under the mahazar Exhibit P-9. On 25.5.1981, P.W.21 arrested accused 3 and 5 and on the information given by third accused, M.O.49 irumbu pattai was recovered under Exhibit P-12 and M.O. 31, the plastic bag along with M.Os.15 to 17 under Exhibit P. 14. In pursuance of the confession given by the fifth accused, M.O.28, the green bag along with M.Os. 7 to 14, 29, 30, 39 and 44, the sarees, were recovered under Exhibit P.13. On 26.6.1981, an identification parade was held by P.W.11 in which P.W.1 identified four accused except the third accused while P.W.2 identified all the accused. After completing the investigation, charge-sheet was filed against all the accused under Sections 341 and 397, I.P.C. 3. The prosecution has examined P.Ws. 1 to 21, filed Exhibits P.1 to P.20 and marked M.Os. 1 to 49. 4. The plea of the accused was one of denial. They further submitted that they were all taken to the police station long prior to their alleged date of arrest and they were shown to P.W. 1 at the hospital, that P.W.2 was undergoing imprisonment in the same jail where the accused were kept and hence no reliance could be attached to the identification parade and that this case has been foisted on them on suspicion. 5. The learned Second Additional Assistant Sessions Judge convicted all the accused under Sections 397, I.P.C, and sentenced them to undergo rigorous imprisonment for seven years and under Section 341, I.P.C, to undergo rigorous imprisonment for one month. Though the accused were convicted under Section 147, I.P.C, no separate sentence was awarded to them. Accused 2, 3 and 5 alone have preferred an appeal before the First Additional Sessions Judge, Madurai. For the reasons stated in paras 4 and 5 of his judgment, the learned Sessions Judge, acquitted accused 3 and 5 for and for the reasons assigned in paras 6 and 7 convicted and sentenced the second accused as stated supra, while acquitting him of the offence under Section 147, I.P.C. Hence, the aggrieved second accused has preferred this revision. 6. 6. The learned counsel for the revision petitioner mainly contended that the learned Appellate Judge having acquitted accused 3 and 5, ought to have acquitted the petitioner also on the same reasonings and that the Courts below erred in convicting the petitioner under Sections 341 and 392 read with 397, I.P.C, since the prosecution has failed to prove any of the ingredients which are necessary for constituting the said offences against the petitioner. 7. As regards the actual occurrence, the prosecution has adduced evidence through P.W. 1. His evidence establishes that on the night of 15.5.1981, he was attacked and his belonging were robbed by some persons. The appellate Court disbelieved the evidence of P.W.2 regarding identification of accused 2 and 5 on the ground that he was undergoing imprisonment in connection with a case in Crime No.965/81 under Section 4(1)(A) of the Tamil Nadu Prohibition Act in the same jail where the accused were kept. This was spoken to by D.W.I, the Assistant Jailor. The appellate Court also rejected the evidence of the prosecution regarding recovery of certain material objects in pursuance of the confessional statements given by accused 3 and 5 and acquitted them. 8. Now, let us consider whether the prosecution has satisfactorily established the offence alleged against the petitioner beyond all reasonable doubt. The lower appellate Court had observed that admittedly the accused were strangers to the victim P.W.1 and he had not given the address of those persons in Exhibit P-1, but the F.I.R., contains the address of accused 2 and 5 and as such, P.W. 1 could not have been the author of Exhibit P-1 and it might have been prepared on some other information obtained by the police thereby including the names of these persons and that there was suspicion about the preparation of Exhibit P-1 and on that ground also, it extended the benefit of the said doubt to accused 3 and 5 and acquitted them. The acquittal of accused 3 and 5 by the appellate Court was also on the ground that P.W. 2, the corroborative witness was confined in the Sub Jail where these accused were kept and though he denied the above fact, it was duly proved by the evidence of D.W. 1, the Assistant Jailor that during the relevant period. The acquittal of accused 3 and 5 by the appellate Court was also on the ground that P.W. 2, the corroborative witness was confined in the Sub Jail where these accused were kept and though he denied the above fact, it was duly proved by the evidence of D.W. 1, the Assistant Jailor that during the relevant period. P.W. 2 was confined along with the accused in the same jail and hence the evidence of P.W.2 was disbelieved. Further, the medical testimony of P.W. 15 was not accepted on the ground that P.W.1 had not stated that he was attacked by five persons and also regarding the manner of attack either with soda bottle or irumpu pattai except aruval. The other ground which was taken into consideration by the appellate Court for acquitting accused 3 and.5 is that since the recovery of M.Os.7 to 14, 29, 30, 39 and 44 kept in the bag (M.O.28) from accused 3 and 5 in pursuance of their confession was made from an open space which is accessible to others. The State has not preferred any appeal against the said acquittal of accused 3 and 5. As rightly observed by the learned counsel for the petitioner, the reasonings given by the appellate Court for the acquittal of accused 3 and 5 in respect of their overt acts in the actual occurrence would equally apply to the case of the petitioner also regarding his participation in the occurrence. The only circumstance which implicates the petitioner in this case is the recovery of M.Os.3 to 6, 18 to 25, 32 to 38, 41 and 42 kept in the suit case (M.O.27) from P.W. 13 on being pointed out by the petitioner in pursuance of his confession statement. M.O.19 the cheque issued by P.W. 5 was also recovered along with the material objects. P.W. 13 had deposed that on the next day of the occurrence, the above items were entrusted to him by the petitioner and since it was kept in the suit case (M.O.27), he did not verify and find out the same. There is absolutely nothing to reject his evidence. The fact that the petitioner gave a confession statement and in pursuance of the same, the above material objects were recovered was also clearly spoken to by the Investigating Officer besides the mahazar witnesses. There is absolutely nothing to reject his evidence. The fact that the petitioner gave a confession statement and in pursuance of the same, the above material objects were recovered was also clearly spoken to by the Investigating Officer besides the mahazar witnesses. The petitioner has not given any explanation for his alleged possession of the stolen articles, but he simply denied the same. In this connection, my attention was drawn by the learned counsel for the petitioner to the decision of the Supreme Court reported in Sheonath v. U.P. State Sheonath v. U.P. State (1970) 2 S.C.R.796 wherein it was held that the only legitimate presumption to be drawn in the circumstances is that the appellant knew that the goods were stolen, but he did not know that they were stolen in a dacoity and that therefore he cannot be held liable for the offence of dacoity or robbery. The earlier decision of the Supreme Court reported in Sanwal Khan v. State of Rajasthan Sanwal Khan v. State of Rajasthan (1956) 57 Crl.L.J. 150:A.I.R. 1956 S.C.54 was referred to in the above decision and it reads as follows: “In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.” Applying the above principles, their Lordships of the Supreme Court have held in (1970)2 S.C.R. 796 as follows: “….. The prosecution, in our opinion, has to show something more than the mere possession of stolen goods for a conviction under Section 412, if the prosecution is only able to show mere possession, the proper section to use is 411. In the result, the appeal is allowed and the appellant convicted under S. 411, I.P.C., instead of S.396, I.P.C., and sentenced to undergo rigorous imprisonment for three years.” 9. The principles laid down in those decisions are in all fours applicable to the facts of the instant case. In the result, the appeal is allowed and the appellant convicted under S. 411, I.P.C., instead of S.396, I.P.C., and sentenced to undergo rigorous imprisonment for three years.” 9. The principles laid down in those decisions are in all fours applicable to the facts of the instant case. As discussed above, the evidence adduced by the prosecution did not establish that the petitioner had committed the offence of robbery punishable either under Section 392 or Section 397 I.P.C. But it conclusively establishes that the petitioner was the receiver of the stolen properties. Therefore, the petitioner can be convicted only for an offence punishable under Section 411, I.P.C. 10. In the result, the conviction and sentence awarded to the petitioner under Section 392 read with Section 397, I.P.C, and Section 341, I.P.C, are set aside and instead, he is convicted under Section 411, I.P.C, and sentenced to undergo rigorous imprisonment for three years. With the above modification this revision is dismissed. V.K.----- Petition dismissed.