A. S. TRIPATHI, J. ( 1 ) THIS revision has been preferred against the judgment and order dated 21st September, 1988 passed by JInd Additional Sessions Judge of Morena, whereby the appeal of the petitioners was dismissed maintaining their conviction u/sections 457 and 380 IPC and their sentence of two years R. I. each on both counts. The two sentences were directed to run consecutively. ( 2 ) THE facts of the case are that a theft had occurred in the night between 617th of May, 1976 in the house of one Bhawar Singh, PW 1. The ladies of the house were sleeping on the roof. It was known in the morning that a theft had taken place in the house. A report was lodged. The matter was investigated. On 27th May, 1976, one of the accused namely Bedaria was arrested from whose possession, one Mouser gun and other articles were recovered and recovery memos Exs. P. 13 and P. 14 were proved on record. Similarly, on 16th June, 1976, other co-accused Raghunath (since dead) was arrested and some articles like ornaments, cash etc. were recovered from his possession vide recovery memos Exs. P. 9, P. io and P. 11 which were proved on record. On 11th of July, 1976 accused/petitioner Kailashi was also arrested and cash, ornaments were recovered from his possession. Recovery Memos Exs. P. 6, P. 7 and P. 8 were proved on record. ( 3 ) THE petitioners were prosecuted. The Trial Court had recorded the statements of PW 1 Bhawar Singh, PW 5 Hanslal, PW3 Kamla Deyland PW 2 Pushpadevi, the wife of the complainant Bhawar Singh. They have proved the factum of theft which has occurred in their house. The recovery memos were also proved and the Investigating Officer PW 11 R. S. Tripathi was also examined who had proved the relevant documents on record. The Trial Court after believing the evidence found that charges u/sections 457 and 380 of IPC were proved on record and the petitioners were convicted as aforesaid. Against that order, an appeal was preferred which has been dismissed. ( 4 ) IN this revision, the first legal point was raised that from the evidence on record, no charge u/section 457 IPC was made out. The only allegation was regarding the recovery of stolen articles from the possessions of the petitioners. Against that order, an appeal was preferred which has been dismissed. ( 4 ) IN this revision, the first legal point was raised that from the evidence on record, no charge u/section 457 IPC was made out. The only allegation was regarding the recovery of stolen articles from the possessions of the petitioners. There was nothing on record to show that the presence of any of the petitioners was seen near the place of occurrence during the night. The occurrence of theft could be known only in the morning when the inmates of the house woke up and came down and the door was found to have been opened and the theft was committed. In this view of the matter, learned Counsel for the petitioners argued that there is no iota of evidence to fulfill the ingredients of Section 457 of lurking house-trespass or house-breaking by night on account of theft. Reference was also made to Section 457 IPC, which provides punishment for lurking house- trespass or house-breaking by night. Lurking house-trespass has been defined u/section 443 IPC. The definition provides:whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the tresspass is said to commit lurking house-trespass. ' ( 5 ) IT has been pointed out that in this case, nobody has seen any of the petitioners near the house in which the theft was committed and it was, therefore, argued that the ingredients of Section 443 IPC are not fulfilled to prove the charge of lurking house-trespass, by night. As such, the punishment u/section 457 IPC is uncalled for. ( 6 ) THE only evidence against the petitioners was that of recovery of stolen articles from their possession on different dates of their arrest. Mere recovery does not raise any presumption or commission of theft against the petitioners in view of the provisions of Section 114 of the Indian Evidence Act. Section 114 of the Indian Evidence Act provides that:the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Section 114 of the Indian Evidence Act provides that:the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (a) appended to Section 114 of the aforesaid Act clarifies the matter which is quoted below: (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession TI In view of illustration (a) of Section 114 of the Indian Evidence Act, the natural course of even which raises presumption could be only in a case where the possession of the stolen goods was found to be immediate after the commission of the theft. ( 7 ) IN this particular case, the alleged recoveries have been made, after 27 days from petitioner Bedaria, after one and half months from petitioner Raghunath (since dead) and after two months from petitioner Kailashi. In such a case, it could not be said to be the immediate recovery from the possession of the petitioners of the stolen goods. ( 8 ) THEREAFTER, it was argued by learned Counsel for the petitioners in view of illustration (a) of Section 114 of the Indian Evidence Act that the presumption raised for receiving the goods knowing them to be stolen could only be raised against the petitioners to prove the charge u/section 411 IPC. The charge u/section 380 IPC was also not proved in view of the fact that the possession of the stolen property was not found with the petitioners soon after the theft. Had the recovery been made immediately or soon after the occurrence which could be reasonably inferred within fifteen days from the date of the occurrence, then only the presumption could be drawn. On facts, recovery of stolen articles from the possession of the petitioners was not found to have been made soon after the occurrence of theft, and therefore, it could not be presumed that the petitioners were themselves thieves. On facts, recovery of stolen articles from the possession of the petitioners was not found to have been made soon after the occurrence of theft, and therefore, it could not be presumed that the petitioners were themselves thieves. Since the recovery was not soon after the occurrence, the presumption could be raised that the petitioners were in possession of the stolen goods knowing them to be stolen and only charge against the petitioners proved was u/section 411 IPC. The Trial Court as well as the learned Appellate Court did not consider this point regarding recovery being made after a lapse of 27 days, one and half months and two months. Since it was not an immediate recovery or soon after the theft, presumption could not be raised against the petitioners that they were themselves thieves. ( 9 ) IN these facts and circumstances of the case, and the evidence led before the Trial Court the only charge which could be established against the petitioners was u/section 411 IPC. The convictions recorded u/sections 457 and 380 IPC are therefore not justified on record. There is no iota of evidence or any link to establish that the petitioners had committed lurking house-trespass by night or they had committed any theft in the night. The only evidence on record was regarding the recovery of stolen articles from their possession after several days, and therefore, in absence of any presumption being raised u/section 114 of the Indian Evidence Act, the only charge which could be established against the petitioners was u/section 411 IPC. This view finds support from the case of Karilal v. State of M. P. , wherein it was held that when there is no evidence for theft or house-trespass, the only charge which could be established was u/section 4111pc. The punishment provided u/sec. 411 IPC is three years imprisonment, or fine or both. ( 10 ) THEREFORE, the convictions of the petitioners u/sections 457 and 380 are set aside. Instead they are convicted u/section 411 IPC which is a minor offence without a charge having been framed. On the point of sentence, learned Counsel for the petitioners urged that one of the petitioner Raghunath is already dead and his revision has accepted. The other petitioner Bedaria is more than 80 years of age and is old and infirm. Instead they are convicted u/section 411 IPC which is a minor offence without a charge having been framed. On the point of sentence, learned Counsel for the petitioners urged that one of the petitioner Raghunath is already dead and his revision has accepted. The other petitioner Bedaria is more than 80 years of age and is old and infirm. He has appeared before this Court and he was found to be an old and infirm and this fact is not disputed. The other petitioner Kailashi is also of 50 years of age. It has been pointed out before this Court that it was their first offence and a lenient view may be taken regarding their punishment. Petitioners Bedaria and Kailashi have already served for more than one month in prison. Learned Counsel for the petitioners urged that the same may be taken to be sufficient and some Cine may be imposed against the petitioners for the ends of justice. Considering the facts and circumstances of the case and in view of the fact that it is the first offence of the petitioners, the fine of Rs. 500/- each in addition to the period of imprisonment already undergone will be sufficient punishment u/section 411 IPC. ( 11 ) THE appeal is allowed in part. The findings of the Trial Court as well as of the Appellate Court convicting and sentencing the petitioners u/sections 457 and 380 IPC are set aside, instead they are convicted u/section 411 IPC. The sentence of imprisonment for more than a month already undergone is taken to be sufficient. However, the petitioners are imposed a fine of Rs. 500/- each to be deposited within fifteen days from today in the Court of Judicial Magistrate, First Class, Ambah, District Morena, failing which the petitioners shall undergo further rigorous imprisonment for a period of three months each. ( 12 ) THE petitioners are on bail. They need not surrender. Their bail bonds and surety bonds are discharged. Revision allowed in part. .