JUDGMENT - BRAHME P.S., J.:---The appellant, by the appeal, has challenged the judgment and order passed on 8-8-2001, by 3rd ad hoc Additional Sessions Judge, in Sessions Case No. 90 of 2001, wherein appellant was convicted and sentenced to rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default to undergo simple imprisonment for one month for offence under section 395 of Indian Penal Code. By the same judgment, other accused persons (accused Nos. 2, 3 and 4) who were tried with the appellant came to be acquitted for want of evidence. 2. The prosecution against the appellant was initiated in respect of the incident of commission of dacoity on midnight of 9-1-2000 at Karanja Wasti, Kannad, for which one Mahadu @ Karbhari s/o Lahanu Shirse resident of Kannad Maliwada lodged complaint on 9-1-2000 at Kannad Police Station and on the basis of that complaint, offence was registered vide Crime No. 2 of 2000. As per prosecution case, complainant has Wasti in his agricultural land and his four servants stay there along with him. On the night of incident, when complainant and his servants were sleeping in the rooms, the complainant woke up due to barking of dogs, but he could not come out of the room as the room was latched from outside. He opened the window and to his surprise, saw two persons, having covered their face and they were demanding from complainant whatever he possessed and asked him to open the room. The complainant gave cash of Rs. 500/-, but when these persons held threats the complainant was constrained to open the door of the room and these two persons entered the room, out of them, one had an axe. Those persons took away wrist watch of complainant of citizen company worth Rs. 200/-. It was noticed that some 4 to 5 persons were outside the house having sickles, stones with them. The room was latched from outside. While leaving from the room of the servants, these persons took away ornaments, cash from them. Prakash Baburao, Asaram Gopinath, Bhausaheb Pawar, Sarjerao Sonwane were the servants whose items were taken away by those dacoits. Complainant lodged the complaint at the Police Station and P.S.I. Dilpak carried out investigation. The room was latched from outside. While leaving from the room of the servants, these persons took away ornaments, cash from them. Prakash Baburao, Asaram Gopinath, Bhausaheb Pawar, Sarjerao Sonwane were the servants whose items were taken away by those dacoits. Complainant lodged the complaint at the Police Station and P.S.I. Dilpak carried out investigation. Initially, there was no clue, but when during the course of investigation in Crime No. 52 of 2000 of the said Police Station it was disclosed that these accused persons committed the offence and on interrogation with appellant Pandurang it was revealed that two items i.e. (1) Nath and (2) Mangalsutra were with him given to his wife. This disclosure made by appellant was reduced into writing and P.S.I. and the panch witness were led by appellant to his house at Talwada and on going there, the ornaments, namely, Nath and Mangalsutra which was on the person of his wife were taken and seized under panchanama. The servant Prakash Sonwane and whose wifes ornaments were taken by the dacoits on the night when dacoity was committed, identified these articles, particularly Nath and pieces of Dorlas and beats of Mangalsutra. After completing investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, Kannad, who in turn committed the case to the Court of Sessions for trial. 3. Before the Additional Sessions Judge, the appellant pleaded not guilty to the charge and claimed to be tried. In his statement recorded under sections 313 of Criminal Procedure Code, he has denied the recovery of articles in pursuance of the statement made by him from the possession of his wife. At the trial, prosecution examined complainant Karbhari Shirse (P.W. 1) who gave detailed account of the incident of dacoity that took place and that has been reflected in clear manner and consistently also in the complaint Exh. 15, which he immediately lodged in the Police Station. The other witnesses examined by the prosecution were Prakash Sonwane (P.W. 4) one of the servants of the complainant, who identified the articles which came to be seized at the instance of the appellant from his house being produced by his wife, Ashok Patil (P.W. 3) panch witness and Investigating Officer P.S.I. Dilpak (P.W. 5). The other witnesses examined by the prosecution were Prakash Sonwane (P.W. 4) one of the servants of the complainant, who identified the articles which came to be seized at the instance of the appellant from his house being produced by his wife, Ashok Patil (P.W. 3) panch witness and Investigating Officer P.S.I. Dilpak (P.W. 5). Through the evidence of these two witnesses, namely, Ashok Patil (P.W. 3) and P.S.I. Dilpak (P.W. 5), it is revealed that the appellant on 23-9-2000 made a statement regarding ornaments being given to his wife, vide memorandum Exh. 23, which came to be seized under panchanama Exh. 24. There was absolutely no other evidence connecting the appellant. None of the witnesses has identified the appellant. But accepting the fact of recovery of these articles which came to be stolen while committing dacoity at the house of complainant, the trial Court convicted appellant for offence under section 395 of Indian Penal Code and awarded sentence as stated above. 4. I have heard Shri V.N. Damle, learned Counsel for the appellant and Shri S.D. Kaldate, learned Additional Public Prosecutor for the respondent/State. I have perused the evidence of material witnesses and also the record. 5. The complainant and other two witnesses have given clinching evidence about the commission of dacoity on the night at his farm house, in which valuable property consisting of cash and ornaments was stolen. In fact, if the tenor of cross-examination of witnesses is considered, the factum of dacoity and in that theft of the valuables including the ornaments, has not been disputed. Therefore, the trial Court is right in holding that the dacoity was committed at the house of complainant and in that by the use of force cash amount, as also ornaments belonging to the servants were forcibly obtained. 6. As stated earlier, the appellant came to be convicted only on the basis of the recovery of the property at his instance, for which the evidence of P.S.I. Dipak (P.W. 5) and panch witness Ashok Patil (P.W. 3) has been accepted by the trial Court. This evidence is considered carefully by me. I do not think that the trial Court has committed any error in accepting that evidence. The seizure of these articles under seizure memo Exh. 24 at the instance of or in pursuance of the statement made by the appellant vide Exh. This evidence is considered carefully by me. I do not think that the trial Court has committed any error in accepting that evidence. The seizure of these articles under seizure memo Exh. 24 at the instance of or in pursuance of the statement made by the appellant vide Exh. 23 gains corroboration by the factum of actual recovery and seizure of the property. After the prosecution evidence was over, appellant was examined under section 313 of Criminal Procedure Code, wherein the circumstances and the evidence which was against him and incriminating in nature was to put to him. It is pertinent to note that the question relating to the recovery of the ornaments, namely, Mangalsutra and Nath was put to him, but he has totally denied saying that it is not true. In this connection, I am on the point that the appellant has nowhere explained possession of the property. The record shows that the articles came to be seized under panchanama Exh. 24 in pursuance of the statement made by the appellant vide memorandum Exh. 23 on 23-9-2000. It is clinchingly recorded that these ornaments were seized when the same were produced by the wife of the appellant. It is also significant that in the memorandum Exh. 23 the appellant has disclosed that these ornaments were given by him to his wife. If that is so then, the possession of these ornaments is attributed to the appellant. Then, in that case it was for him to explain as to how he came in possession of those ornaments. It is not his case that he has purchased those ornaments from the market for his wife. It is true that the ornaments which came to be seized from the person of the wife of the accused are common place articles, freely available in the market. But then, it was for the appellant to explain and state as to when he got the ornaments and from where. As against that, is clinching evidence of the servant of complainant Prakash Sonwane who has identified these articles as the same property of which theft was committed while dacoity was committed. Therefore, it is the appellant and appellant alone who is accountable for possession of these articles which are proved to be stolen articles. As against that, is clinching evidence of the servant of complainant Prakash Sonwane who has identified these articles as the same property of which theft was committed while dacoity was committed. Therefore, it is the appellant and appellant alone who is accountable for possession of these articles which are proved to be stolen articles. It is established further that the articles have been stolen from the house of the witness Prakash Sonwane when dacoity was committed. When the appellant has not given any explanation for the possession of the articles or ornaments and when it is proved that the ornaments were stolen property, the appellant is guilty of offence under section 412 of Indian Penal Code. 7. The learned Counsel for the appellant has rightly submitted that even accepting the factum of recovery of the ornaments at the instance of the appellant, which are proved to be the property stolen while committing dacoity, in the absence of any evidence showing involvement of the appellant in commission of the offence of dacoity, appellant cannot be found guilty for offence under section 395 of Indian Panel Code. As could be seen from the judgment of the trial Court, the learned Judge has found that the appellant is connected with the offence of dacoity availing the presumption to be drawn under section 114 Illustration (a) of Indian Evidence Act. As per section 114 of Indian Evidence Act, the Court may presume existence of certain 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. As per Illustration (a) to section 114 of Indian Evidence Act, the Court may presume that a man who is in the 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. In the first place, the presumption is to be drawn on the basis of possession of stolen goods only if the possession is soon after the theft and that too if such person fails to give any account for his possession of the stolen goods. In the first place, the presumption is to be drawn on the basis of possession of stolen goods only if the possession is soon after the theft and that too if such person fails to give any account for his possession of the stolen goods. In the case before hand, as rightly submitted by the learned Counsel for the appellant, the offence in respect of dacoity was registered on 9-1-2000 while the recovery of the stolen goods, namely, the ornaments have been made on 23-9-2000. It is a matter of record, even after the offence was registered the investigation came to stand still as there was no clue, but when the Investigating Officer in another crime apprehended the appellant in commission of offence of road robberies on 4-9-2000, on interrogation appellant made disclosure about the ornaments being given to his wife and on the basis of that disclosure statement at his instance the same ornaments have been recovered when produced by his wife. The ornaments have been proved to be stolen property as the witness to whom the ornaments belonged, had identified the same. But then, since the possession of the ornaments with the appellant cannot be said to be soon after the theft committed while dacoity was committed, no presumption could be drawn under Illustration (a) of section 114 of Indian Evidence Act that the dacoity was committed by the appellant. That is much more so when on record there is absolutely no evidence. The witnesses have not identified the appellant as one of the culprits who committed dacoity. Therefore, the trial Court has committed an error in holding the appellant guilty for offence under section 395 of Indian Penal Code on the basis of recovery of ornaments at his instance or for keeping in his possession the ornaments which proved to be stolen property. In this view of the matter, the appellant will have to be acquitted for offence under section 395 of Indian Penal Code. 8. For having received and kept in his possession the stolen articles, the appellant, when failed to give any explanation, is found guilty of offence under section 412 of Indian Penal Code. In my opinion, having regard to the fact that the appellant is involved in multiple cases of robbery and dacoity, he does not deserve any sympathy or leniency. 8. For having received and kept in his possession the stolen articles, the appellant, when failed to give any explanation, is found guilty of offence under section 412 of Indian Penal Code. In my opinion, having regard to the fact that the appellant is involved in multiple cases of robbery and dacoity, he does not deserve any sympathy or leniency. Therefore, so far as this case is concerned for offence under section 412 of Indian Penal Code, substantive sentence of rigorous imprisonment for one year and fine of Rs. Five Hundred, in default to undergo further rigorous imprisonment for one month would meet the end of justice. Hence the order. 9. The appeal is partly allowed. The order of conviction and sentence of the appellant under section 395 of Indian Penal Code is set aside. The appellant is acquitted of offence under section 395 of Indian Penal Code. Instead, the appellant is convicted of offence under section 412 of Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. Five Hundred, in default further to suffer rigorous imprisonment for one month. Substantive sentence awarded to the appellant to run concurrently with the substantive sentence awarded in other criminal matters which have been decided today by this Court. Rest of the order, as to disposal of property, made by the trial Court, is maintained. The appellant is entitled to set-off in respect of the period under detention during trial and after conviction. The learned Counsel for the appellant Shri V.N. Damle who is appointed has conducted the matter with all ability to his command. He is entitled to his remuneration which is quantified at Rs. 1,500/-. Appeal partly allowed. -----