JUDGMENT 1. - This is an appeal against the conviction under Sections 302 and 379 of the Indian Penal Code and the sentence of life imprisonment with Rs. 200/- as fine on the charge under Section 302 IPC and sentence of two years rigorous imprisonment on the charge under Section 379 IPC imposed on the appellant Narayan by the learned Sessions Judge, Banswara. 2. On June 26, 1989 Mohan son of Badia who was later on examined as PW 1 in the case, lodged a first information report at the Police Station-Pipalkhut that Devli aged about 1.0 years who was the daughter of his paternal uncle had gone out with sheep in the jungle at about 9.00 a.m. on June 24, 1989 and when sheep returned but she did not return in the evening, the informant and his uncle launched a search for her but could not succeed because it was night time. In the morning, Mohan himself with his uncle and 8-10 persons from the Village went to the Jungle in search of Devli. She was then found lying dead on a slope of a `nala'. An injury on her throat was found and `Hansli' (a silver ornament) weighing about 200 grams which she used to wear was found missing. No one was named in this first information report because there was no eye- witness to the crime and no one knew till then, who was the culprit. Nahar Singh (PW 14), the Investigating Officer has stated that he recorded statements under Section 161 of the Code of Criminal Procedure of Magan, Ram Chandra, Arjun, Miss Nabu and Mrs. Goti. The accused- appellant was arrested on the same day and on his information furnished on July 1, 1989, an axe said to have been used in the offence and the silver `Hansli' belonging to the deceased was recovered. The silver ornament was identified in the test identification held before a Judicial Magistrate and the silver `Hansli' was identified to be that which was worn by the deceased. 3. Navla (PW 5), the father of the deceased deposed at the trial about the missing of his daughter and later her being found to be dead with a throat injury in the Judgle and the silver `Hansli' which she was wearing, missing from her body. 3. Navla (PW 5), the father of the deceased deposed at the trial about the missing of his daughter and later her being found to be dead with a throat injury in the Judgle and the silver `Hansli' which she was wearing, missing from her body. He identified in the Court, the silver ornament `Hansli' and also testified that he had identified it before the Magistrate also. He did not say a word about the involvement of the accused in the crime. Nabu (PW 6) has deposed that accused Narayan had taken Devli to Jungle at about 10-11 a.m. in the morning and she had seen Narayan in the Jungle with an axe going towards Jungle. She also deposed that Magan, Arjun and Rama who were grazing their cattle nearby were also there. She further deposed that accused Narayan was her brother and deceased Devli was her sister. She was not asked as to whether she gave this information to someone else also. Ram Chandra (PW 7), a child witness of 10-11 years deposed narayan was seen going towards Jungle with an axe with him and Magan, Arjun, Nabu and Devli had gone in the Jungle for grazing cattle. He also appears to be related to both the sides as the deposed that Devli was her sister and Narayan was uncle. In his cross-examination, he admitted that Narayan was not his real uncle. Arjun Lal (PW 9) is also a child witness of 10 years. He also deposed that he Manganlal, Ramchandra and Devli had gone to graze the cattle at about 9-10 a.m. in the morning. Devli's sheep were lost and she had gone to search them in the Jungle but did not return. Then, he saw narayan going towards Jungle with an axe. 4. The prosecution had relied on these witnesses in order to show that Devli was last sedn together with the appellant narayan. However, the entire evidence of these witnesses at best could prove only the fact of narayan with an axe having gone in the same direction in which Devli had gone earlier. This is hardly an evidence of being last seen together. However, the entire evidence of these witnesses at best could prove only the fact of narayan with an axe having gone in the same direction in which Devli had gone earlier. This is hardly an evidence of being last seen together. Apart from the fat that the statements of these witnesses under Section 161 of the Code of Criminal Procedure were recorded six days after the incident, there is no explanation as to why when the parents of deceased Devli were searching her along with 8-10 villagers, these witnesses did not inform them of what they had seen. 5. The other circumstances relied upon by the prosecution are recovery of an axe and a silver Ornament `Hansli' from the accused. Recovery of an axe would be of no consequence because witnesses have admitted that it is not unusual for village folk to carry axe while going to the Jungle. Moreover, no blood was found on the axe. So far as the recovery of silver ornament 'Hansli' is concerned, the information about it was given by the accused on July 1, 1989 vide Ex.P/14. This information led to the recovery of the silver ornament from a place nearby the spot where the dead body was lying, concealed under the earth under a `khakra' plant. 6. The learned Amicus Curiae for the appellant has submitted that the `Hansli' was recovered from the Jungle which is a public place. We do not agree. It has been proved that the ornament was not lying at a place where any one could see it. It was hidden under the earth under a tree and therefore was not accessible to public. From the statements of witnesses, the information given by the accused-appellant and recovery of the article pursuant there to have been proved. There is also not doubt about the identification of ornament and the father and mother of the deceased have properly identified the article. 7. On the aforesaid evidence, the trial Court has held the appellant guilty on charges under Section 302 and 379 of the Indian Penal Code. 8. The conviction is based on the evidence as to last seen together and recovery of silver ornament belonging to the deceased. So far as the evidence of last seen together is concerned, we did not find it to be reliable. 8. The conviction is based on the evidence as to last seen together and recovery of silver ornament belonging to the deceased. So far as the evidence of last seen together is concerned, we did not find it to be reliable. It is actually an evidence as to the accused-appellant going in the same direction in which the deceased had gone. So far as the recovery of `Hansli' is concerned, we find it to be proved. The question is whether his evidence alone is sufficient to hold the accused-appellant guilty of murder. 9. In Ram Bharosey v. State of Uttar Pradesh, ( AIR 1954 SC 704 ) , the accused had produced articles which were removed from the body of the deceased from the house and he was held guilty not merely as receiver of stolen property but of committing of murder. However, this was not the only circumstance on which the conviction was based. In Paragraph-6 of the Judgment, it was observed that the appellant had disappeared from his house even before 7.30 a.m. and when he was brought back, he produced the article from `bhusa kothi'. He should therefore, have got possession of the articles before he left the house; and seing that the inquests were made shortly after dawn and not late in the day; It was difficult to accept the view contended for by the appellant that he might have been merely a receiver of stolen property. 10. It appears that there was other evidence also in the case to connect the accused-person with the commission of the crime. In the present case, we have only a silver ornament not bearing any blood stains or even having disfigured by a blow of the axe which was admittedly given on the neck where the ornament is worn. 11. In Baiju v. The State of madhya Pradesh, ( AIR 1978 SC 522 ) , it has been held that recent and unexplained possession of stolen articles can be taken to be presumptive evidence of the charges of murder as well. Paragraph-14 of this Judgment is relevant for our purpose in which it is observed that the question whether a presumption should be drawn under illustration (a) of Section 114 of the Evidence Act in a matter which depends on the evidence and the circumstances of each case. Paragraph-14 of this Judgment is relevant for our purpose in which it is observed that the question whether a presumption should be drawn under illustration (a) of Section 114 of the Evidence Act in a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner of its acquisition, by the owner, the nature of the evidence about identification. The manner in which it was dealt with by the accuse,d the place and the circumstances of its recovery, the length of intervening period, the ability or otherwise of the accused to explain the possession, are factors which have to be taken into consideration in arriving at a decision. 12. In Babloo & Others v. The State of Madhya Pradesh, ( AIR 1979 SC 1042 ) , in Paragraph-13, it was observed that the recovery of `katrana' (a weapon of offence) would hardly have any probative value if there is no substantive evidence worth the name in the case. 13. In Joga Gola v. State of Gujarat, ( AIR 1982 SC 1227 ) , the accused was found in possession of buffaloes of the deceased. The two deceased had gone to the appellant with the buffaloes and did not return. It was found from evidence that buffaloes were seized from the possession of accused and that the buffaloes belonged to the deceased persons. In these circumstances, it was held that though the circumstances not sufficient to hold the accused guilty of murder but were sufficient to convict them under Section 411 of the Indian Penal Code. 14. On the aforesaid discussion of the case law on the point, looking to the facts and circumstances of the present case, we are of the view that recovery of silver ornament worn by the deceased being found from the accused cannot alone by sufficient to hold him guilty of murder in absence of any other connecting evidence. The charge under Section 302 IPC, therefore has to be taken as not proved and the conviction on that count has to be set aside. As regards conviction under Section 379 IPC, there is no direct evidence of theft but as per illustration (a) of Section 114. The charge under Section 302 IPC, therefore has to be taken as not proved and the conviction on that count has to be set aside. As regards conviction under Section 379 IPC, there is no direct evidence of theft but as per illustration (a) of Section 114. Evidence Act a presumption can be drawn that a man who is in possession of stolen property soon after the theft is either the thief or has received it knowingly unless he can account for the possession. In the present case, the accused-appellant has not explanation regarding the possession of the silver ornament but has taken a plea that it was not recovered at his instance. In such circumstances a presumption can be drawn from the proved facts that the accused has committed theft. The conviction under Section 379 IPC and the sentence imposed on that count deserves to be confirmed. 15. In the aforesaid circumstances, the appeal is partly allowed. The conviction of the appellant under Section 302 IPC and the sentence imposed for that offence is set aside. The conviction and sentence under Section 379 IPC is however upheld. The appellant has already undergone his sentence under Section 379 IPC and if he is not required in any other case, he shall be released forthwith. *******