JUDGMENT P.K. Musahary, J. 1. Browsing the ejahar and other records, the prosecution case may be stated like this. On 08.01.1999, Friday, at about 6.30/6.45 pm, while the informant Shri Pradip Kumar Goswami, was busy in packing clothes etc., in the southern part of his dwelling hut as a preparation for proceeding in the next morning to Silchar for treatment, suddenly an unknown person, whose face was covered by black cloth, entered the room and asked him to give money, gold etc., by showing a pistol like weapon. The miscreant forcibly took away cash amount of Rs. 1500/- and a wrist watch on which his name was inscribed. At the same time, other 2/3 miscreants whose faces were also covered by black clothes forcibly entered the western part of the dwelling hut and by showing pistol like weapon took away gold necklace from his mother's neck and two bangles and a pair of earrings from his wife including his two battery torch light. The miscreants stayed about 5/7 minutes and went away towards the western side of the house. The police having received the information about the incident made an entry in the general diary. The officer-in-charge Shri Babul Das (PW 10) along with SI Shri Bimal Krishna Debnath (PW 11) visited the place of occurrence and received a written ejahar from Shri Pradip Kr Goswami on the spot. The crime being Kamalpur PS Case No. 03/99 under Section393 IPC read with Section 27 of the Arms Act was registered. The IO prepared the hand sketch map with separate index, examined and recorded statements of witnesses under 161 CrPC. After completion of the investigation the IO Shri Bimal Krishna Debnath (PW 11) filed charge sheet against Shri Bikash Das, Shri Apurba Das, Shri Ramu Sabdakar, Shri Sadhan Kanda, Shri Ramesh Kanda and Shri Baju Kanda. The learned trial Court framed charges under Section 395 IPC against the above named accused persons and the charge were read over and explained. The accused persons pleaded not guilty and claimed to stand trial. 2. During trial prosecution examined in all 11 witnesses. 3. Sufficient evidence has been adduced by the prosecution to prove the fact that a dacoity was committed in the house of the informant Shri Pradip Kr Goswami. The informant was examined as PW1. In his deposition he confirmed the statements and allegations made in his ejahar, Ext. 2. During trial prosecution examined in all 11 witnesses. 3. Sufficient evidence has been adduced by the prosecution to prove the fact that a dacoity was committed in the house of the informant Shri Pradip Kr Goswami. The informant was examined as PW1. In his deposition he confirmed the statements and allegations made in his ejahar, Ext. 1 and the same have been corroborated by PW2 Smti. Suprabha Goswami and PW3 Smti Kalpana Bhattacharjee, mother and wife respectively. PW 1, out of fear, handed over to the dacoits cash amount of Rs. 1500/- (approximately), one torch light and a wrist watch on which his name was engraved. The dacoits looted a necklace and two bangles from PW2 and a pair of earrings from PW3. The commission of dacoit was intimated by a villager, Shri Parma Goswami over telephone before the written ejahar was lodged with PW 10 Shri Babul Das, OC of Kamalpur PS who made a GD entry No. 294 dated 08.01.1999 and visited the place of occurrence with his staff including PW 11, Shri Bimal Krishna Debnath. He received a written ejahar from PW1 on the spot at about 7.45 pm and directed PW 11 to investigate the case. On return to the police station at about 1.30 am he registered the case and formally entrusted it to PW 11 for investigation. 4. PW 11, corroborating the evidence of PW 10 deposed that on preliminary investigation he got information that one Bhikhya @ Bikash Das was seen running away just after the occurrence. So he being accompanied by PW 10 and on receipt of secret information went to the house of the accused Shri Bikash Das at 22.15 hours and on being identified by his father and mother and recovered a country made pistol from a handbag including one wrist watch on the body of which the name of Shri Pradip Kr Goswami was written, Rs. 550/- in cash, one wooden butt of a pistol, some soap and Colgate toothpowder. These articles were seized by preparing seizure list, Ext. 1 which were signed by some co-villagers namely Sunil Das, Ratan Das, Nirmal Das, Hardhan Das as witnesses. They were examined by the prosecution as PWs No. 4, 5, 6 and 7 respectively. During investigation, on receipt of information from his source, the IO interrogated the accused Apurba Das. These articles were seized by preparing seizure list, Ext. 1 which were signed by some co-villagers namely Sunil Das, Ratan Das, Nirmal Das, Hardhan Das as witnesses. They were examined by the prosecution as PWs No. 4, 5, 6 and 7 respectively. During investigation, on receipt of information from his source, the IO interrogated the accused Apurba Das. On being interrogated he confessed his guilt and disclosed that the stolen golden chain might be found in the house of accused Ramesh Kanda. On being interrogated in presence of some workers of the tea garden, the accused Ramesh Kanda also admitted that his son accused Sadhu @ Sadhan Kanda handed over to him a golden chain. Subsequently, accused Ramesh again disclosed in presence of local people that he kept the golden chain in the hut of his brother Dulan Kanda. Ultimately, accused Ramesh was arrested as he handed over the golden chain/necklace to PW 11, which was seized by preparing a seizure list (Ext. P/2) and signed by Sunil Das (PW 4), Motilal Das (PW8), Nirmalendu Das (PW6) as witnesses. The seized wrist watch and the golden chain were returned to the respective owners namely PW1 and PW 2 being identified by them as per the order of the Sub-Divisional Judicial Magistrate, Kamalpur. The Accused Bikash Das, Sadhan Kanda and Baju Kanda, could not be arrested. The IO, after completion of investigation filed charge sheet on 12.05.1999 against Bikash Das, Ramu Sabdakar, Baju Kanda and Sadhan Kanda under Section 395 IPC and Section 27 Arms Act and against Ramesh Kanda under Section 412 IPC showing Bikash Das, Sadhan Kanda and Baju Kanda as absconders. 5. PWs 4, 5 and 7, corroborating the evidence of IO Shri Bimal Krishna Debnath deposed that they went to the house of accused Bikash Das with Daroga Babu and recovered the articles including one wrist watch, on the body of which the name of Pradip Goswami was inscribed and cash amount of Rs. 550/- as mentioned in Ext P/4 from inside the dwelling hut of Bimal Das. These witnesses identified their signatures. PW 5 could identify the pistol. Ext. Mo/2 and also the accused Bimal Das in the dock. Similarly PW 6 and 8, corroborating the evidence of 10 Shri Bimal Krishna Debnath (PW 11), deposed that Daroga Babu showed them one golden necklace recovered from the house of Jamuna Kanda on 28.01.1999. These witnesses identified their signatures. PW 5 could identify the pistol. Ext. Mo/2 and also the accused Bimal Das in the dock. Similarly PW 6 and 8, corroborating the evidence of 10 Shri Bimal Krishna Debnath (PW 11), deposed that Daroga Babu showed them one golden necklace recovered from the house of Jamuna Kanda on 28.01.1999. They could also identify their signatures on the seizure list (P/2). 6. The learned trial Court on the basis of evidence on record acquitted the accused Ramesh Kanda, Sadhan Kanda and Apurba Das as the prosecution miserably failed to establish any case against them, while other two accused namely Baju Kanda and Ramu Sabdakar were discharged earlier. Out of six accused the learned trial Court convicted only Bikash Das under Section 395 IPC and sentenced to suffer RI for three and a half years and also to pay fine of Rs. 1000/- only in default to suffer ST for one month. 7. Shri D. Guha learned Counsel for the appellant, strenuously argued that the recovery of stolen goods from the possession of the accused appellant could not be proved/established inasmuch as the incriminating articles were allegedly recovered and seized from the dwelling hut of the accused in his absence without taking help of the Gaon Pradhan at the time of searching his house by the police. He also argued that the search in the hut of the accused was illegal inasmuch as the police party conducted the search without first giving personal search on themselves, which is a legal requirement for conducting raid and search, and as such, the prosecution stories of recovery and seizure of stolen articles from the dwelling hut of the accused, that too in his absence, should be disbelieved as false and concocted one. 8. Let us first find out the relevant ground facts from the available records for the purpose of disposal of this appeal: 1. Incident (dacoity) took place on 08.01.1999 at about 6.30/6.45 pm (vide ejahar Ext. P/1) 2. The local PS was immediately intimated about the incident over telephone by a co-villager Shri Partha Goswami and GD entry No. 294 dated 08.01.1999 was made at 19.05 hours (vide FIR and evidence of PW 10 and 11). 3. Distance between the PS and PO is only 4Km 4. P/1) 2. The local PS was immediately intimated about the incident over telephone by a co-villager Shri Partha Goswami and GD entry No. 294 dated 08.01.1999 was made at 19.05 hours (vide FIR and evidence of PW 10 and 11). 3. Distance between the PS and PO is only 4Km 4. The OC and the IO immediately rushed to PO, took statement of local men/villagers under Section 161 Cr.P.C. and on information received proceeded to the house of accused appellant Bikash Das and after search and recovery of stolen articles seized them at 22.15 hours i.e. just after about three and a half hours of the dacoity (vide Ext. P/4). 5. Although the accused appellant was absent at the time of search and seizure, his father, mother, elder brother and wife were present (vide evidence of PWs 4, 5 and 7). 6. The house of accused appellant is situated at a distance of 300 meters in the west from the house of PW 4, Sunil Das. The distance between the house of informant and PW 4 is only 306 meters (vide evidence of PW 4) PWs 4, 5 and 7 belong to the same village of the accused appellant, so also the informant PW1, PW 2, PW 3, PW6 and PW8. 7. One of the stolen goods viz. the wrist watch with informant's name inscribed there on as stated in the FIR was recovered from the attache (bag) seized inside the dwelling house of the accused appellant. 9. The accused fled his house/hut soon after the incident and he has been absconding until his surrender on 28.09.1999 (vide order dated 28.09.1999) passed by SDJM Kamalpur in GR Case No. 07/1999 vide A/9. Although no Gaon Pradhan was associated at the time of search and seizure in the house of accused appellant as many a three villagers were present as independent witnesses. 10. The presence of Gaon Pradhan at the time of search/raid is not a general rule but a rule of prudence, i.e. in the absence of Gaon Pradhan, what is required is that some independent witnesses of the locality should be involved. It is rather an accepted principle that the police whenever conducts search and seizure should call upon some independent and respected people of the locality to witness the search and seizure. It is rather an accepted principle that the police whenever conducts search and seizure should call upon some independent and respected people of the locality to witness the search and seizure. It is also the accepted principle that when such independent local witnesses are not available the evidence of officials/police personnel should not be disbelieved. It depends on the situation prevailing at the time of conducting search and seizure. In the instant case, the police took the help of some co-villagers to find out the house of the accused and they were present at the time of search and seizure. There is no material on record that those co-villagers witnesses had animosity with the accused appellant and that they had deposed against him falsely out of revenge and enmity. No evidence has been adduced by the defence in this regard. There is nothing to the contrary requiring this Court to discard or disbelieve the evidence of those witnesses on the fact of search, recovery and seizure of incriminating articles from the house of the accused appellant. As regard the submission of the appellant's counsel that the search is illegal because the raiding policemen did not give personal search, it must be borne in mind that in cross-examination the defence did not make any attempt to prove or elicit this fact. Even no suggestion was put to PWs 10 and 11 (Police official) that they conducted the search before they were given personal search. The defence simply tried to bring home its point that the search in question which was done without associating Gaon Pradhan was illegal. It was not proved in any manner that the police in fact, conducted search without first getting their personal search done. In absence of evidence on the contrary, it must be presumed that the police officials had given personal search. The onus of proof shifted on the defence and in this case it failed to discharge the same by adducing sufficient evidence. Non giving of personal search of raiding/searching party is a technical objection. In my considered opinion such technical objection should not be allowed to prevail in a case like the present one, when the search is genuine and was necessitated for the interest of effective investigation. Such technical objection may prevail if the conduct and motive of the raiding police party are found doubtful'. In my considered opinion such technical objection should not be allowed to prevail in a case like the present one, when the search is genuine and was necessitated for the interest of effective investigation. Such technical objection may prevail if the conduct and motive of the raiding police party are found doubtful'. In the present case no such doubt can be entertained because the police came to the place of occurrence on being informed by a co-villager within half an hour of the incident and on gathering information visited the house of the accused appellant within three hours alongwith some co-villagers. The police really did a commendable job by at least recovering some stolen articles from the house of the accused appellant within three hours from the time of commission of dacoity. 11. The appellant's counsel Mr. Guha, argued with great force that the prosecution has not been able to prove that the bag (attache) containing the stolen articles including the wrist watch belongs to the accused appellant and as such the accused appellant could not be convicted under Section 396 IPC. This Court finds such submission hardly acceptable for a dacoit or thief is not, in all cases, expected to use his own bag only to carry stolen article. In such a case, the prosecution is not required to prove the ownership of the bag or container. What is required to prove is whether the accused can be connected with the stolen article found from his possession or from his dwelling house. In other words, Court is to see whether there is some evidence to connect the accused with the crime itself. If such connection can be established on the basis of evidence on record, the accused could, one may say, should be convicted either under Sections 395 or 411 or 412 IPC. 12. The fact of commission of dacoity in the house of informant has been established and the same is not in doubt. The fact or recovery of incriminating articles including the stolen wrist watch within a couple of hours from the commission of dacoity from the dwelling house of the accused in presence of independent witnesses/co-villagers has also been established. From this established facts three presumptions are possible: 1. That the accused appellant took part in the dacoity, which attracts Section396 IPC. 2. From this established facts three presumptions are possible: 1. That the accused appellant took part in the dacoity, which attracts Section396 IPC. 2. That he received stolen goods knowing that the goods were stolen in the commission of a dacoity which attracts Section 412 IPC. 3. That he received stolen goods knowing them to have been stolen which attracts Section 411 IPC. 13. The law of presumption is provided under Section 114 of the Indian Evidence Act, 1872 which reads as follows: 114 Court may presume existence of certain facts. -- 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. In this Section some illustrations have been given and from them illustration (a) is relevant and it may also be 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. 14. As regards how presumption should be made, the Apex Court in the case of Sanwat Khan v. State of Rajasthan as reported in AIR 1956 SC 54 , observed that no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. This would mean that a particular presumption may be made depending upon the circumstances of a given case. Discussion has already been made earlier about the circumstance. However, for the sake of better appreciation it may be recapitulated that a commotion was created in the village due to commission of dacoity. On being informed by a co-villager, the local police visited the place of occurrence within half an hour, swung into action and recovered some stolen good from the house of the accused appellant within two and a half hours. Here the gap between commission of dacoity and recovery of stolen property from the house of the accused is to be noted. It is only two and half hours and it was too short for any member of the dacoity to arrange transfer of stolen goods to other person/persons not a party to the dacoity. Here the gap between commission of dacoity and recovery of stolen property from the house of the accused is to be noted. It is only two and half hours and it was too short for any member of the dacoity to arrange transfer of stolen goods to other person/persons not a party to the dacoity. Presumption can be made safely that the accused appellant was a party to the dacoity and he brought some stolen goods to his house. He had no time to dispose off or transfer them to other party due to the commotion already created and in the meanwhile local police had arrived at the village. Faced with such situation, he had to give priority to flee his house leaving the fruits of crime at home. In this context I am tempted to quote the observations made by Hidayatullah, Chief Justice of India, as His Lordship was then, in the case of Shivappa v. State of Mysore reported in 1971 CriLJ 260 -- ...It has been stated on more than one occasion that if the gap of time is too large, the presumption that the accused was concerned with the crime itself gets weakened. The presumption is stronger when the discovery of the fruits of crime is made immediately after the crime is committed. The reason is obvious. Disposal of the fruits of crime requires the finding of a person ready to receive them and the shortness of time, the nature of the property which is disposed of, that is to say, its quantity and its character determine whether the person who had the goods in his possession received them from another or was himself the thief or the dacoit. 15. Records show that the police searched the house of the accused appellant at 10.15 pm (night time), when most of the villagers were taking quiet rest in deep sleep. But the accused appellant was found absent from his house for which no explanation has been offered, rather found absconding for about nine months and surrendered himself only on 28.09.1999. As per the evidence of PW 5 there are three huts in the house of the accused Bikash Das and in one of the huts he lives with his wife separately. According to PW 7 he accompanied Daroga Babu to the house of accused Bikash Das alongwith Sunil Das (PW4) and Ratan Deb (PW5). As per the evidence of PW 5 there are three huts in the house of the accused Bikash Das and in one of the huts he lives with his wife separately. According to PW 7 he accompanied Daroga Babu to the house of accused Bikash Das alongwith Sunil Das (PW4) and Ratan Deb (PW5). On the call of Daroga Babu, Sukhendu Das, elder brother of the accused came out and pointed out the accused's hut. At that time, the door of the hut of Bikash Das was open and his wife was sleeping inside. Corroborating the statement of PW 5, it was further stated by PW 4 that in his presence and in front of the family members of Bikash Das, Daroga Babu asked the wife of the accused to hand over the key of the suit case, she denied to have any key and therefore Daroga Babu had to break open the suit case and recovered one HMT watch with the name of the informant Pradip Kr Goswami written on it. Daroga Babu also recovered Rs. 550/- in cash and seized all the articles by preparing a seizure list in presence of all the witnesses. This would not be able to prevent the Court from exercising its power of presumption under the provisions of Section 114 with the aid of illustration (a) of the Evidence Act, because the accused appellant could not account for possession of the stolen goods in his house. In the case of Shivappa (supra) it was held by the Apex Court: if there is other evidence to connect an accused with the crime itself, however small, the finding of the stolen property with him is a piece of evidence which connects him further with, the crime. There is then no question of presumption. The evidence strengthens the other evidence already against him. It is only when the accused cannot be connected with the crime except by reason of possession of the fruits of crime that the presumption may be drawn.... 16. There is no evidence establishing participation of accused appellant in the commission of dacoity in the informant's house. None of the members of the informant's family could identify any of the dacoits because they covered their faces by black cloth. 16. There is no evidence establishing participation of accused appellant in the commission of dacoity in the informant's house. None of the members of the informant's family could identify any of the dacoits because they covered their faces by black cloth. However, evidence adduced by the prosecution has established that some of the stolen goods were found from the possession of the accused which is directly connected with the dacoity committed in the informant's house. It is therefore, legitimate to apply the law of presumption under Section 114 of the Evidence Act to this case that a person with whom the stolen goods were found is the dacoit himself. It invariably leads to hold that the accused appellant in whose house/possession the stolen goods like HMT watch, belonging to informant was recovered, was the dacoit himself, being a member of the dacoits and committed dacoity in the informant's house. Once it is held that the accused appellant is a dacoit himself, he may be convicted under Section 395 IPC. 17. Having considered the facts and circumstances of the case and also the evidence of record, this Court has no hesitation to confirm and up-hold the impugned judgment dated 26.04.2002 passed by the learned Addl. Sessions Judge, North Tripura in case No. ST 1(NT/KMP) 2002 convicting and sentencing the accused appellant under Section 395 IPC. In the result this appeal fails and stand dismissed. Send down the LCR forthwith. Appeal dismissed