SANKAR BHATTACHARYA, J. ( 1 ) APPELLANT Monoranjan Paul, along with three others including his son Dilip Paul, was arraigned her or e a learned Additional Sessions Judge, Alipore, to answer a charge under sections 395/398, Indian Penal Code. The appellant was further charged under section 412, Indian Penal Code, for having dishonestly received or retained certain properties knowing or having reason to believe that possession of the same had been transferred by commission of the dacoity. ( 2 ) ON conclusion of the trial the learned Additional Sessions Judge, while acquitting the appellant of the charge under sections 395/398, Indian Penal Code, convicted him under section 412, Indian Penal Code and for such conviction, sentenced him to rigorous imprisonment for six years. This appeal seeks to assail the above order of conviction and sentence. ( 3 ) BRIEFLY stated, the case for the prosecution was that on 19-5-81, at or about noon, five armed miscreant committed dacoity in Flat No. 21 of Premises No. 6, May Fair Road and after silencing the inmates at the point of revolver dagger etc. decamped with cash of Rs. 30,000/- and various items of gold ornaments, some of them being studded with diamonds, pearls etc, Before retreating, the miscreants snapped the telephone connection of the flat and escaped in a car after exploding a bomb. ( 4 ) ON the basis of the first information report lodged by Bina Khaitan (P. W. 1), the daughter of the owner of the flat, the police took up investigation and arrested, amongst others, the appellants son Dilip Paul. ( 5 ) ON the night between 5/6 June, 1981, while in police custody, Dilip Paul led the investigating officer (P. W. 1) to the house of the appellant and brought out a suit case from a room where the appellant was found sleeping. As the appellant did not hand over the key of the suit case to the investigating officer, it was broken open and some of the stolen articles were seized from the suit case in the presence of witnesses. ( 6 ) ON completion of the investigation, police submitted charge sheet which in the usual course, ended in committal of the case to the Court of Sessions. ( 7 ) THE defence of the appellant was a plea of innocence. ( 6 ) ON completion of the investigation, police submitted charge sheet which in the usual course, ended in committal of the case to the Court of Sessions. ( 7 ) THE defence of the appellant was a plea of innocence. ( 8 ) THE dacoity in Plat No. 21 of Premises No. 6, May Pair Road is not challenged before us and has been proved by the evidence of the informant Bina Khaitan (P. W. 1), her elder sister Santosh Khaitan (P. W. 2) their mother Radhadevi Khaitan (P. W. 3) and their servant Sitaram (P. W. 10) all of whom were present in the flat at the time of the incident. The first investigating officer (P. W. 1) who visited the flat shortly after the occurrence found the household articles lying scattered all over the room and two almirah has open. He also noticed a bullet mark on the western wall of the flat and seized the empty cap of a bullet. In view of the unimpeachable evidence discussed above, the dacoity stands clearly established. ( 9 ) IT appears from the evidence of the last investigating officer (P. W. 17) that on the night between 5/6 June, 1981, being led by Dilip Paul, he went to the appellant house at Padma Purkar Road, Jagaddal where he conducted a search in presence of local witnesses. It appears from his evidence that during the search Dilip pointed out a suit case in a room where the appellant was found sleeping. The suit case which was under lock and key was kept by the side of the cot on which the appellant was sleeping. As the appellant did not hand over the key the suit case had to be broken open and from inside it eighty currency notes of the denomination of rupees one hundred each, besides various items of gold ornaments and valuable stones were recovered. These were seized under the seizure list (Ext. 6 ). Of the items so recovered, the currency notes were identified by P. W. 2 and the two rings, one of them being studded with a diamond, one neck chain, two pieces of pearls and thirteen pieces of diamonds were identified by P. Ws. 1, 2 and 3 as belonging to them which were carried away by the dacoits. 6 ). Of the items so recovered, the currency notes were identified by P. W. 2 and the two rings, one of them being studded with a diamond, one neck chain, two pieces of pearls and thirteen pieces of diamonds were identified by P. Ws. 1, 2 and 3 as belonging to them which were carried away by the dacoits. ( 10 ) THE recovery of the suit case containing the above articles from the appellants house has been corroborated by the two public witnesses Kanaklal Ghosh (P. W. 12) and Satish Chandra Saha (P. W. 13) and also by P. Ws. 15, 16 and 17 who are police officers. Of the seizure list witnesses, Kanaklal Ghosh (P. W. 12) is the landlord of the appellant and Satish Saha (P. W. 11) is a close neighbour of the appellant. P. W. 15, at the material time, was a Sub-Inspector of Police attached to Jagaddal Police Station, who accompanied the investigating officer (P. W. 17) and P. W. 16 to the appellants house. The search of the appellants house on the night between 5/6 June, 1981 and recovery of the aforementioned articles from the suit case found inside the house have not been challenged by the defence and the seizure list (Ext. 6) also hears the signature of the appellant. The diamond ring (Ext. I) has been identified by P. Ws. 1, 2 and 3. Another ring (Ext. II), the neck chain (Ext. III), two pieces of pearls (Ext. IV collectively) and twelve pieces of diamonds (Ext. V collectively) have also been identified by P. Ws. 2 and 3. Mr. Chowdhury, learned Advocate for the appellant, has not assailed the evidence of identification of the aforementioned witnesses in so far as the ornaments and the stones are concerned and on an examination of their evidence we see nothing to discard the same as untrue. ( 11 ) NOW the only point-and the most crucial one-for our consideration is whether on the facts which have been proved by the prosecution, the conviction of the appellant under section 412, Indian Penal Code can be sustained. ( 11 ) NOW the only point-and the most crucial one-for our consideration is whether on the facts which have been proved by the prosecution, the conviction of the appellant under section 412, Indian Penal Code can be sustained. ( 12 ) IN order to bring home the charge to the appellant, it must be shown that he was in exclusive and conscious possession of the suit case containing the stolen properties and that he knew or had reason to believe that possession of the same had been transferred by commission of dacoity. ( 13 ) WE now advert to the evidence to see whether the above ingredients of the offence under section 412, Indian Penal Code, have been fully established by the prosecution. We have mentioned already that there are five witnesses to the seizure of the stolen articles of whom Kanaklal Ghosh (P. W. 12) and Satish Chandra Saha (P. W. 13) are public witnesses. Both P. Ws. 12 and 13 consistently deposed that though they signed the seizure list (Ext. 6) as witnesses, they did not see from which place the articles were actually recovered by the police. It may be mentioned that no prayer was made by the prosecution for permission to cross-examine the above witnesses on the ground that they had turned hostile. P. W. 15, the Sub-Inspector of the Jagaddal Police Station who accompanied the search party from Calcutta, stated that Dilip Paul led them to a house on Padma Pukur Road, Jagaddal. He then entered a room and brought out a box which was found under lock and key. The officers of the Calcutta Police (P. Ws. 16 and 17) then broke open the box and seized some currency notes and gold ornaments which were found inside it. Therefore, all that appears from the evidence of P. Ws. 12, 13 and 15 is that the suit case containing the stolen articles was brought out by Dilip from one of the two rooms comprising the appellants tenancy (vide rent receipt Ext. 9) and it further appears that none of the police officers or the public witnesses entered inside the room with Dilip. The improvement of the prosecution case, however, started right from the moment the two police officers of the Calcutta Police (P. Ws. 16 and 17) stepped into the witness box. 9) and it further appears that none of the police officers or the public witnesses entered inside the room with Dilip. The improvement of the prosecution case, however, started right from the moment the two police officers of the Calcutta Police (P. Ws. 16 and 17) stepped into the witness box. P. W. 16 who accompanied the last investigating officer (P. W. 17) deposed that being led by Dilip he, along with the investigating officers (P. W. 17) and P. W. 15 and the public witnesses (P. Ws. 12 and 13) entered a room of the appellant's house where the appellant was found sleeping. He was roused from sleep and thereafter Dilip brought out a box which was lying by the side of the cot on which the appellant was sleeping. On refusal of the appellant to hand over the key of the box, they broke it open and recovered the currency notes, gold ornaments and some pieces of valuable stones. P. W. 16, therefore, introduced the story that all the police officers and public witnesses entered the room from which the box was brought out by Dilip. He also introduced the story that the box was lying by the side of the cot on which the appellant was sleeping and that the appellant refused to hand over the key of the box to the investigating officer (P. W. 17) whereupon it was broken open. It should be noted that the above evidence does not find corroboration from P. Ws. 12, 13 and 15. P. W. 17 further improved the prosecution case to implicate the appellant. According to him, Dilip led them and the public witnesses to a room on the left side of the ground floor of the house where the appellant was sleeping and pointed out a suit case paying that his share of the booty of the dacoity was inside it. The suit case was under lock and they was kept by the side of the cot on which the appellant was sleeping. Dilip then asked the appellant to hand over the key but the appellant replied that the key was not with him. The suit case was under lock and they was kept by the side of the cot on which the appellant was sleeping. Dilip then asked the appellant to hand over the key but the appellant replied that the key was not with him. Thereafter, it was broken open and the articles inside it were seized the story that Dilip asked the appellant to hand over the key was introduced obviously to show that the appellant was in exclusive and conscious possession of the suit case containing the stolen articles but it does not find support from the other witnesses including the two police officers (P. Ws. 15 and 16 ). The over zealousness betrayed by the investigating officer in implicating the appellant would be appeared from another fact to which we may incidentally refer. P. W. 12 stated that the appellant was his tenant and this fact was admitted by the appellant himself during his examination under section 313, Code of Criminal Procedure. Even then, on the high of the search, that is, on the night between 5/6. 6. 81 the investigating officer (P. W. 17) got an ante-dated rent receipt (vide Ext. 9) manufactured by P. W. 12 to booster up the prosecution case that the stolen articles were recovered from the house of the appellant. This fact has emerged from the cross-examination of the landlord Kanaklal Ghosh (P. W. 12) himself and has not been denied by the investigating officer (P. W. 17 ). ( 14 ) FOR the reasons stated above, we find ourselves unable to rely upon the evidence of P. Ws. 16 and 17 who have amply betrayed their unusual interest in the prosecution of the appellant. Therefore, the only evidence that remains is that the suit case containing the stolen articles was recovered from a room of the appellants house. Dilip has been convicted under sections 395/398 Indian Penal. Code for taking part in the dacoity and, that being the position, the possibility of the suit case containing the stolen articles having been brought by him to his house and kept concealed in a room cannot be ruled out. Dilip has been convicted under sections 395/398 Indian Penal. Code for taking part in the dacoity and, that being the position, the possibility of the suit case containing the stolen articles having been brought by him to his house and kept concealed in a room cannot be ruled out. The mere recovery of the suit case from the appellants house without anything more, cannot, in our opinion, establish the charge under section 412, Indian Penal Code against the appellant beyond reasonable doubt because, as pointed out already, the suit case might have been kept concealed in the house without the knowledge of the appellant. ( 15 ) IN view of the foregoing discussions, we are inclined to hold that the appellant was entitled at least to the benefit of reasonable doubt which was wrongly denied to him by the trial court. We, therefore, allow the appeal and set aside the order of conviction and sentence passed against the appellant. The appellant be set at liberty forthwith if not wanted in connected with any other case. .