JUDGMENT: The appeal has arisen against the conviction and sentence passed by the Additional Sessions Judge, Cuddalore for the offence under Sec.411, I.P.C., convicting and sentencing the accused to undergo rigorous imprisonment for two years. 2. Three charges were framed as against the accused under Secs.395, 396 and 395 read with 397, I.P.C. and the charges are that, on 8.9.1988 at 12.00 midnight at Katchirapalayam Kottakaraimedu in the Kottukottagai i.e., the house of Ramaswamy, bearing door No.22-B, the accused committed dacoity of 41-3/4 sovereigns of gold ornaments M.Os.1 to 11, silver waist-chord and cash of Rs.10,000 MO.12 all worth about Rs.93,000 an offence punishable under Sec.395, I.P.C. and in the course of transaction, A-1 was jointly concerned along with others in committing the dacoity and committed murder of one Kaliammal by stabbing her on her abdomen with a knife and all the accused committed an offence punishable under Sec.396, I.P.C. and the accused while committing the said dacoity, used deadly weapons, knives and committed the offence punishable under Sec.395 read with Sec.397, I.P.C. 3. The case of the prosecution on the evidence of P.Ws. is as follows: P.W.1 is residing at Kattukottagal in Kottakkaraimedu village. He is an agriculturist. He has two wives Kaliammal and Vangalayee Ammal. In the said village in Kattukottagai, P.W.1 is residing with his wife Kaliammal. About 3 1/2 years back on Thursday at about 8.00 p.m. his wife Kaliammal, after dinner, was sleeping inside her house along with her dumb daughter Nallammal by bolting the house. P.W.1 was sleeping outside in a cot. At about 12.00 midnight. P.W.1 heard the noise of doing barking. P. W. 1 got up and saw six persons. When enquired, they stated that they came there to pluck the tapioca. At that time his wife Kaliammal, who was sleeping inside the house, came out stating that whoever it may be, they can talk in the morning. P.W.1 saw all the six persons coming near him with masks and all the six persons coming near him with masks and all the six persons tied P.W.1 with a rope attached to the cot. Among the six persons, while three persons were tying P.W.1, the other three persons took his wife Kaliammal and ran to the tapioca thope. P.W.1 saw all the six persons coming near him with masks and all the six persons coming near him with masks and all the six persons tied P.W.1 with a rope attached to the cot. Among the six persons, while three persons were tying P.W.1, the other three persons took his wife Kaliammal and ran to the tapioca thope. The three persons who tied P.W.1 untied him and dragged him inside the house and threatened to murder him armed with knife and asked him where he was keeping the money. P.W.1 pointed out to the almirah and informed them that he is having money there and gave them the key. The accused threatened P.W.1 to murder him and out of fear, P.W.1 gave the key to all these three persons. The three persons opened the almirah and took cash of Rs.10,000 and gold jewels and ran away from the place of occurrence along with the weapons they had, leaving his wife Kaliammal and his daughter Nallammal in the house and tying his hands to the bench and also by thrusting cloth in his mouth and his daughter’s mouth, and when they left, they did not switch off the light. The next early morning, as usual, the milk man P.W.3 came to the house and untied P.W.1, his wife and his daughter. Kaliammal was stabbed by the accused and her intestine had come out because of the stab injury and her body was very cool. P.W.2 sent a word to his second wife and his brother-in-law through the milk man P.W.3. His second wife P.W.4 and P.W.1’s brother-in-law P.W.5 came to his house at 7.00 am and P.W.1, along with them, went to Katchirapalayam police station at 7.30 am and gave complaint Ex.P-1 to P.W.11. P.W.11 registered Ex.P-1 under Secs.396, 323, 341, 342, I.P.C. in Crime No.223 of 1988 and prepared first information report Ex.P-9 and sent it through the constable and informed about the about the occurrence to the Inspector of Police P.W.14. 4. P.W.14, on receipt of the First Information Report Ex.P-9, visited the scene of occurrence and prepared observation mahazar Ex.P-3 in the presence of P.W.6, attested by P.W.6 and one Pavadai, and he seized one small bag M.O.13 containing some bills of regulated market under mahazar Ex.P-4 series, attested by P.W.6 and one Pavadai and from the house of the occurrence. P.W.14 seized the dhotis M.Os. P.W.14 seized the dhotis M.Os. 14 and 15 and silk towel M.O.16, lock and key M.O.17 and three key bunches M.O.18 series under Ex.P-5 in the presence of P.W.6 and one Pavadai. P.W.14 examined the witness and held inquest on the dead body of Kaliammal and prepared Inquest Report Ex.P-11 and gave requisition receipt Ex.P-12 to the doctor for conducting postmortem on the dead body of Kaliammal and he sent the dead body of Kaliammal for postmortum through the constable. 5. P.W.2, doctor conducted post mortem on the dead body of Kaliammal and found on her the following injuries: “1. Stab injury 7 cm above the left side naval 5 cm x 3 cm depth upto the inner side of the stomach and through that would the intestine was probing at. 2. Lacerated injury on the left side jaw. 3.Internal injuries: On desection of injury No.1, P.W.2 found the injury extending inside the stomach up to 5 cm depth and the nature of the injury was such that it cannot be measured because of the penetration of the intestine. The arteries were also found cut. There was clotting of blood of 250 grms. inside the stomach and there was also clotting of blood for 750 grams.” P.W.2 has found that the injured would have died 36-38 hours prior to the post-mortem and has issued the post-mortem certificate Ex.P-2. He has given opinion that the death would have been caused due to shock and haemorrage on account of the injuries sustained by her. 6. After post-mortem, the constable seized the sareeM.O.36, Skirt M.O.37, and jacket M.O.38 from the dead body of Kaliammal and produced them before P.W.14 along with his report Ex.P-13, P.W.14 sent the M.Os. to the Judicial Magistrate Court, Kallakurichi. P.W.14 then arrested A-2 who was standing in the bus stand. P.W.14 recorded the confession statement of the accused and as per the admissible portion Ex.P-14, he went to the house of A-2 along with P.Ws.12 and 13 and seized M.O.2 chain, cash of Rs.1,000 and one kerchief M.O.39 under Mahazar Ex.P-15 in the presence of P.Ws.12 and 13. P.W.7 had seen A2 along with 4 or 5 persons near the petty shop at the bus stand on the date of occurrence and the next day he came to know about the occurrence. P.W.7 had seen A2 along with 4 or 5 persons near the petty shop at the bus stand on the date of occurrence and the next day he came to know about the occurrence. P.W.8 had seen all the six accused on the night of 8.9.1988 at 9.30 p.m. P.W.14 arrested A-1, A-3 and A-4 identified by A2 in front of the arrack shop at Cuddalore-Pondicherry Road. A-1, A-3 and A-4 voluntarily gave confession statement in the presence of P.Ws.12 and 13 and the admissible portion of their statements are Exs.P-16, P-17 and P-18, At 5.30 p.m. on identification by A-2, P.W.14 arrested A-5 and recorded his confession statement, and as per the admissible portion of the statement Ex.P-19, A-5 produced the chain M.O.4, 10 hundred rupees notes and kerchief M.O.40 and P.W.14 seized them under Ex.P-14 in the presence of P.Ws.12 and 13. As per Exs.P-17, P-18 and P-19, A-3 produced M.O.3 series bangles, 30 hundred rupees notes and kerchief M.O.41 and P.W.14 seized them under Ex.P-21 in the presence of P.Ws.12 and 13.As per Ex.P-18, A-4 produced M.O.I chain from his house, 10 hundred rupees notes and one kerchief M.O.42 from his house and P.W. 14 seized them under mahazar Ex.P-22 in the presence of P.Ws.12 and 13. As per Ex.P-16 A-1 produced the chain M.O.5, 10 hundred rupees notes, blood stained knife M.O.43 and kerchief M.O.44 and P.W.14 seized them under mahazar Ex.P-23 in the presence of P.Ws.12 and 13. He arrested A6 identified by A-2 and A-6 gave confession statement, and as per the admissible portion of the statement Ex.P-24, A-6 produced gold rings M.Os.11 and 8, earrings M.O.10 series and M.O.7 series, M.O.6 series, silver waist chord M.O.9 30 hundred rupees notes and kerchief M.O.45 and P.W.14 seized them under mahazar Ex.P-25. P.W.14 took the thumb impression of A1 to A6 and sent them to the expert. P.W. 1 came to the station and identified his articles and P.Ws.7 and 8 also identified the accused in the police station. P.W.14 gave requisition Ex.P-26, to the Judicial Magistrate for sending the M.Os. for chemical analysis and he also sent the M.Os. to the court. P.W. 1 came to the station and identified his articles and P.Ws.7 and 8 also identified the accused in the police station. P.W.14 gave requisition Ex.P-26, to the Judicial Magistrate for sending the M.Os. for chemical analysis and he also sent the M.Os. to the court. The finger print expert P.W.10, at the request of the Inspector of Police, Sankarapuram and as per the direction of the higher authorities, visited the scene of occurrence along with the police photographer P.W.9 and he took the thumb impression found on the scattered articles at the scene of occurrence P.W.9 took photographs of the scaltered articles at the scene of occurrence in 5 M.Os.19 to 23 and the negatives are M.Os.24 to 34. P.W.10 also took the thumb impression of the police constable Nawab John as well as the thumb impression of the deceased. P.W.10 compared the thumb impression of the accused along with the thumb impression taken by him at the scene of occurrence and it tallied with the thumb impression of A-4, and informed the matter to the higher authorities and directly gave report Ex.P-8. P.W.14 examined all the witnesses and after investigation, laid charge sheet against the accused. 7. At the conclusion of the trial, the learned Sessions Judge found the accused guilty under Sec.411, I.P.C. and convicted and sentenced them to undergo rigorous Imprisonment for two years. As against the conviction and sentence, the present appeal has been filed by the accused. 8. The learned counsel for the appellants/accused contended that the conviction and sentence under Sec.411, I.P.C. is not sustainable when the accused has been found not guilty under Secs.395, 396 and 397, I.P.C. 9. The trial court has found that the offence for which charges have been framed against the accused under Secs.395, 396 and 395 read with 397, I.P.C. have not been proved and the evidence establishes that the accused are guilty under Sec.411, I.P.C, since the accused were found in possession of the jewels and cash and the properties have been recovered from the accused as per the admissible portion of their confession statements and even though the mahazar witnesses P.Ws.12 and 13 have turned hostile, as the accused themselves have produced these properties from their custody and as they have been seized from the accused, the accused have committed the offence under Sec.411, I.P.C. The properties have been seized from the accused. So the accused were found in possession of these properties. 10. Sec.411, I.P.C. states as follows: “Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” The wording in Sec.411, I.P.C. that whoever dishonestly receives or retains any stolen property indicates that the person who dishonestly receives the property or has retained the stolen property is liable to be punished under Sec.411, I.P.C. 11. The evidence of P.W.14 proves that the accused voluntarily gave confession statement and as per the admissible portion of their confession statements Exs.P-16 to P-19 which lead to the recovery of these articles, the accused themselves produced those articles before the Investigating Officer in the presence of mahazar witnesses and as these articles were recovered from the accused and as these articles were also returned to the complainant’s family as they are the owners of the property, it can safely be concluded that the accused have dishonestly retained the properties knowing fully well that they are in wrongful possession of the properties. Even though the mahazar witnesses P.Ws.12 and 13 have turned hostile, the seizure of these properties from the accused by the Investigating Officer as per Exs.P-16 to P-19 establishes that the properties were seized from the possession of the accused. It has been clearly proved in this case that the accused were in possession of these stolen properties. 12. The trial court has found that although there was no evidence for convicting the accused for the offence under Secs.395, 396 and 395 read with Sec.397, Indian Penal Code and as there is proof that the accused were in possession of the stolen properties, the trial court has found the accused guilty under Sec.411, Indian Penal Code and since it has been proved that the accused were in possession of the stolen properties, they cannot escape conviction under Sec.411, Indian Penal Code. 13. 13. This view is supported by the decision of the Supreme Court in the case of Chhote Lal Singh v. State of Madhya Pradesh, 1978 Crl.L.J. 1411, wherein the Supreme Court has held that there can be no scope from the position that the articles, which were recovered at the instance of the appellant, were the subject matter of dacoity and have been properly identified by the owner of the articles and there will be a presumption that the appellant was a receiver of the property, transferred to him in the course of dacoity and so the conviction of the appellant from one under Sec.397, I.P.C. was altered to that under Sec.412, I.P.C. 14. In the instant case, the properties have been recovered at the instance of the accused/appellants and they have been properly identified by the owner of the articles. Under such circumstances, following the decision of the Supreme Court, I find that the conviction of the appellants is sustainable under Sec.411, I.P.C. The learned Sessions Judge has passed sentence of rigorous imprisonment for two years which, in my opinion, is not excessive, I see no infirmity in the conviction and sentence passed by the learned Sessions Judge, Cuddalore. 15. In the result, the appeal is dismissed. No costs.