ORDER : V.Srinivas, J. The petitioner/accused No.1 preferred Criminal Revision Case Nos.104, 105 and 106 of 2011 against the judgments dated 10.01.2011 passed in Crl.A.Nos.19, 18 and 20 of 2009 on the file of the learned VI Additional District Sessions Judge, (Fast Track Court), Narsapur, which confirm the judgments dated 09.01.2009 in C.C.Nos.380, 379 and 381 of 2004, on the file of the Judicial Magistrate of First Class, Palakol. The petitioner/accused No.2 preferred Criminal Revision Case Nos.1586, 1587 and 1589 of 2011 against the judgments dated 10.01.2011 passed in Crl.A.Nos.18, 19 and 20 of 2009 on the file of the learned VI Additional District Sessions Judge, (Fast Track Court), Narsapur, which were confirmed by the judgments dated 09.01.2009 in C.C.Nos.379, 380 and 381 of 2004, on the file of the Judicial Magistrate of First Class, Palakol. The petitioner/accused No.3 preferred Criminal Revision Case Nos.1590, 655, 1588 and 644 of 2011 against the judgments dated 10.01.2011 passed in Crl.A.Nos.21, 24, 22 and 25 of 2009 on the file of the learned VI Additional District Sessions Judge, (Fast Track Court), Narsapur, which confirm the judgments dated 09.01.2009 in C.C.Nos.386, 380, 387 and 381 of 2004, on the file of the Judicial Magistrate of First Class, Palakol. 2. The shorn of necessary facts are that : i) Between 25.12.2003 and 29.12.2003, some unknown offenders gained entrance into the house of Vegesna Venkata Ravi Varma situated at Y.Garvu by break opening the entrance door lock and committed theft of cash of Rs.10,000/-, gold jewels viz., gold chain with corals, gold small ear studs-8 pairs and gold chain besides silver articles viz., plate-1, glasses-2, bowls-2 and pooja saman which worth about Rs.20,000/- and absconded with the stolen property. ii) Then the police registered an F.I.R. in Crime No.239 of 2003 and investigated into the case. During investigation, the Sub-Inspector of Police arrested the accused Nos.1 to 3 on 18.06.2004 in the presence of mediators and they confessed that A1, A2, A3 and A4 committed the offence and basing on their confessional statements, recovered the stolen property. A4 surrendered before the Court on 12.07.2004. iii) Then the Sub-Inspector of Police conducted identification parade by mediators wherein the said Vegesna Venkata Ravi Varma (complainant) and his wife identified the stolen property. After completion of investigation, the Sub-Inspector of Police filed charge sheet. 3. A4 surrendered before the Court on 12.07.2004. iii) Then the Sub-Inspector of Police conducted identification parade by mediators wherein the said Vegesna Venkata Ravi Varma (complainant) and his wife identified the stolen property. After completion of investigation, the Sub-Inspector of Police filed charge sheet. 3. After filing of charge sheet, the same were taken on the file of the Court of learned Judicial Magistrate of First Class, Palakol, and after full-fledged trial, the trial Court found the accused Nos.1 to 3 guilty for the offence under Section 457 and 380 I.P.C. and sentenced them to undergo simple imprisonment of three (03) years each and to pay fine of Rs.100/- each, in default to suffer simple imprisonment of three (03) months for the offence punishable under Section 380 I.P.C. A1 to A3 are further sentenced to undergo simple imprisonment for two (02) years each and to pay a fine of Rs.100/- each in default to suffer simple imprisonment for three (03) months each for the offence punishable under Section 457 I.P.C. All the sentences shall run concurrently. 4. Aggrieved by the same, the petitioners/accused Nos.1 to 3 preferred appeals, before the Court of the learned VI Additional District Sessions Judge, (Fast Track Court), Narsapur. The judgments of trial Court were modified stating that the accused Nos.1 to 3 are convicted under Section 248 (2) Cr.P.C. for the charge under Section 411 I.P.C. A1 to A3 are sentenced to simple imprisonment for two (02) years, each and also to pay a fine of Rs.100/- each in default to suffer simple imprisonment for three (03) months each and accordingly, the conviction and sentence and thereby dismissed vide judgments dated 10.01.2011. 5. Against the said common judgment of the first Appellate Court, the present criminal revision cases were preferred by the petitioners/accused Nos.1, 2 and 3. 6. Heard Sri Bodapati Vamsi Krishna, learned counsel for the petitioners in Crl.R.C.Nos.105, 104 and 106 of 2011, Sri Munakala Venkata Ramana Legal Aid for the petitioners in Crl.R.C.Nos.644 and 655 of 2011. Sri S.Dheera Kanishka, learned Special Assistant Public Prosecutor for the respondent-State. 7. Sri K.V.L.Narasimha Rao, learned counsel submits that he has given no objection certificate. 6. Heard Sri Bodapati Vamsi Krishna, learned counsel for the petitioners in Crl.R.C.Nos.105, 104 and 106 of 2011, Sri Munakala Venkata Ramana Legal Aid for the petitioners in Crl.R.C.Nos.644 and 655 of 2011. Sri S.Dheera Kanishka, learned Special Assistant Public Prosecutor for the respondent-State. 7. Sri K.V.L.Narasimha Rao, learned counsel submits that he has given no objection certificate. Sri Pendaprolu Srinu, the petitioner/accused No.3 in Crl.R.C.Nos.1590, 655, 1588 and 644 of 2011 is present in person before this Court and submits that he has no means to engage a counsel, thereby on his behalf Sri Munakala Venkata Ramana Legal Aid for the petitioners in Crl.R.C.Nos.644 and 655 of 2011 submitted that he has no objection to argue on behalf of Sri Pendaprolu Srinu. 8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?” 9. Sri Bodapati Vamsi Krishna, learned counsel for the petitioners submits that the Courts below failed to appreciate the evidence of the PWs1 to 4 and thereby erred in finding him guilty even though the prosecution failed to prove the guilt beyond doubt. He further submits that the Courts below failed to see that the seizure has allegedly done by the police was not in accordance with law and therefore conviction based on the alleged seizure of MOs is illegal. 10. Learned counsel for the petitioners further submits that Courts below ought to have seen that the confession of the petitioners while in custody cannot be taken as evidence and therefore Courts below ought not to have convicted them. 11. Against the same, Sri Dheera Kanishka, learned Special Assistant Public Prosecutor for respondent-State submits that the PW2 is one of the mediators to scene observation report and it was categorically deposed on 15.10.2003 that accompanied with the police to the house of PW1. On observing, it is found that some articles were missing from the house of PW1. He also submits that PW3, who is mediator to the arrest and seizure, gives Ex.P3 mediators report which also corroborates with the evidence of PW1. 12. Sri Dheera Kanishka, learned Special Assistant Public Prosecutor for respondent-State further submits that the most crucial evidence is PW4, who is mediator to the property identification parade. He also submits that PW3, who is mediator to the arrest and seizure, gives Ex.P3 mediators report which also corroborates with the evidence of PW1. 12. Sri Dheera Kanishka, learned Special Assistant Public Prosecutor for respondent-State further submits that the most crucial evidence is PW4, who is mediator to the property identification parade. In his presence, the property identification parade was conducted and deposed the same. He further submits that the evidence of PW3 and 5 clearly shows that the M.Os1 to 10 were recovered from the possession of accused. The Ex.P3 and P4 mediators report also supports version of PW5. Hence, the entire evidence clearly proves that the M.Os1 to 10 belongs to PW1 and were recovered from the possession of accused. Hence, the evidence of PWs1 to 6 is trustworthy and reliable and hence, the conviction passed by the trial Court and the first Appellate Court are in correct lines. Hence, basing on the prosecution witness and on material evidence, he prays to dismiss these revisions. 13. Sri Bodapati Vamsi Krishna, learned counsel for the petitioners also consistently argued before this Court that the police failed to follow Section 100(4) of Cr.P.C. and the police failed to follow Rule 35 of Criminal Rules of Practice. He further submits that the police also failed to establish that the accused with their knowledge retained the properties covered under M.Os1 to 7. 14. To support their contention, learned counsel for the petitioners relied upon Shiv Kumar v. State of Madhya Pradesh (2022) 9 SCC 676 wherein it was held that “for successful prosecution under Section 411 I.P.C, it is not enough to prove that the accused was either had the knowledge that articles seized from his possession are stolen goods nor that he had a cause to think that property was stolen, or that he failed to make enough inquiries to comprehend nature of goods procured by him and further initial possession of goods in question may not be illegal but retaining those with knowledge that it was stolen property, makes it culpable”. In particular at paragraph Nos.23 and 24 held as follows: “23. When we apply the legal proposition as propounded to the present circumstances, the inevitable conclusion is that the prosecution has failed to establish that the appellant had the knowledge that articles seized from his possession are stolen goods. In particular at paragraph Nos.23 and 24 held as follows: “23. When we apply the legal proposition as propounded to the present circumstances, the inevitable conclusion is that the prosecution has failed to establish that the appellant had the knowledge that articles seized from his possession are stolen goods. This essential element was not established against the appellant to bring home the charge under Section 411 of the IPC against him. 24. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens rea is clearly not established for the charge under Section 411 of IPC. The Prosecution’s evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, “you speak an infinite deal of nothing.” 15. Learned counsel for the petitioners also relied upon Manoj Kumar Soni v. The State of Madhya Pradesh 2023 SCC OnLine SC 984 wherein at paragraph Nos.34 and 35 held as follows: “34. The Trial Court convicted Manoj based on a presumption under Section 114(a), Evidence Act, asserting that his possession of stolen articles shortly after the theft, with knowledge of its stolen nature, was adequate enough to hold him guilty under Section 411, IPC. As a result, he was held liable for the offence under the said provision. Illustration (a) of Section 114, Evidence Act has been noted above but the entire provision 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. The Court may presume— (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. 35. The Court may presume— (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. 35. The Trial Court erred in drawing such a presumption of fact without considering other factors. What could be those factors has been explained by this Court in A. Devendran vs. State of Tamil Nadu (1997) 11 Supreme Court Cases 720 in the following words: 20. … Whether a presumption under Section 114, Illustration (a) of the Evidence Act should be drawn in a given situation is a matter which depends on the evidence and the circumstances of the cases. The nature of the stolen articles, the nature of its identification by the owner, the place and the circumstances of its recovery, the intervening period between the date of occurrence and the date of recovery, the explanation of the persons concerned from whom the recovery is made are all factors which are to be taken into consideration in arriving at a decision.” 16. From the above, the APEX Court categorically held that the Evidence Act should be drawn in a given situation is a matter which depends on the evidence and the circumstances of the cases. The nature of the stolen articles, the nature of its identification by the owner, the place and the circumstances of its recovery, the intervening period between the date of occurrence and the date of recovery, the explanation of the persons concerned from whom the recovery is made are all factors which are to be taken into consideration in arriving at a decision. It is further held in the above judgment that based on a presumption under Section 114(a) of Evidence Act, without considering the other evidence on record and without corroboration or other cogent evidence, it cannot be drawn in isolation. 17. In view of the rival contentions and on perusal, this Court finds out that the Sessions Court mainly relies upon a presumption under Section 114(a) of Evidence Act that the prosecution proved the guilt of the accused beyond all reasonable doubt with regard to committing the act of retaining the stolen property at the time of arrest of the accused at electrical substation, Palakol. The Sessions Court also relies on the petitioner/accused A1 to A3 confessed by giving confession statements leading to recover the stolen property in the house in door No.26-3-8B at Subbarayudu temple, is admissible under section 27 of the Evidence Act. 18. When this Court gone through the testimony of PW2, it is stated that on 18.06.2004 at 04:00 pm, when he was at electrical substation Palakol, the Sub-Inspector of Police and other staff caught A1 to A3 herein. On the basis of information given by the accused, the Sub-Inspector along with other staff went to the house situated in Door No.26-3-8B, at Subbarayudu temple street and found four plastic polythene covers with gold and silver articles and Ex.P-3 mediators report was also drafted and was duly signed as a mediator. In the cross-examination report of PW-3, he deposed that Ex.P2 and P3 were drafted by the Sub-Inspector of Police, Palakol town police station in the police station itself and stated that he did not remember the description of all the gold and silver articles but there are bangles and chains. 19. From the above testimony, it is very clear that Ex.P2 and P3 are mediators report for arrest and seizure, and they drafted by the Police and drafted at police station itself. 20. Further, it is appropriate to mention the reference of Rule 35 of Criminal Rules of Practice and Circular Orders, 1990. As per the Rule, the identification of properties shall be made by the Magistrate alone and the Rule 35 of Criminal Rules of Practice reads as follows: “35. Identification of property:- (1) Identification parades of properties shall be held in the Court the Magistrate where the properties are lodges; (2) Each item of property shall be put up separately for the parade. It shall be mixed up with four or similar objects. (3) Before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property. Witnesses shall be called in one after the other and on leaving shall not allowed to communicate with the witness not yet called.” 21. It shall be mixed up with four or similar objects. (3) Before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property. Witnesses shall be called in one after the other and on leaving shall not allowed to communicate with the witness not yet called.” 21. In this connection, before deciding the above said point, the law on this subject is very much clear by the Division Bench judgment of this Court reported in Shai Pashamiya v. The State of Andhra Pradesh 2018 SCC Online Hyd 409 wherein categorically Division Bench held that “as per Rule 35 of the Criminal Rules of Practice and Circular Orders, 1990, the identification of properties shall be held in the Court of the Magistrate where the properties are lodged and procedure is contemplated under Rule 35 of Cr.P.C. that before calling upon the witness to identify the property, he shall be asked to state the identification marks of his property. Witness shall be called in one after the other and on leaving shall not be allowed to communicate with the witness not yet called” 22. Relying on the above decision, this Court finds that the property identified by PW1 cannot be admissible as evidence to find the guilt of the accused. Admittedly, there are identification of ornaments stated neither by PW1, PW2 nor by PW4 as they have not stated any specific identification marks on the ornaments. When such is the case, how the trial Court as well as Sessions Court came to a conclusion that PW1 identified the articles covered under M.Os1 to 7. 23. According to the prosecution, theft took place in the house of PW1 between 25.12.2003 and 29.12.2003 and report was lodged on 29.12.2003 at 9:00 pm. On 18.06.2004 i.e., after lapse of six (06) months time the M.Os1 to 7 are recovered from A1 to A3 for which PW2 stood as a mediator who is available at the time of arrest of police. 24. On 18.06.2004 i.e., after lapse of six (06) months time the M.Os1 to 7 are recovered from A1 to A3 for which PW2 stood as a mediator who is available at the time of arrest of police. 24. After perusal of judgments supra and authoritative pronouncements of Hon’ble APEX Court read with Judgment of this Court in Shai Pashamiya case (referred to supra) the prosecution miserably failed to establish essential element of knowledge of M.Os 1 to 7 in the hands of A1 to A3, that apart disclosure statements of accused cannot be accepted because when apprehension and confession itself becomes inadmissible as the disclosure statement stated by accused before Police, cannot be relied on. 25. This Court further observed that no amount of evidence is placed before this Court that the essential elements of knowledge on part of the accused, to convict the accused A1 to A3 under Section 411 I.P.C. More so, except the disclosure statement of the accused, no other material is placed on record by the prosecution to believe that prosecution established its case within the ambit of Section 411 I.P.C. This Court further observed that the first Appellate Court as well trial Court consistently hold that there was a corroboration on the testimony of PW1, PW2 and PW4 but on the careful examination, as per the judgments and law, referred supra, to identify the property the prosecution has not followed the Rule 35 of Criminal Rules of Practice. So far as arrest is concerned, the evidence on record also does not inspires the confidence of this Court that proper procedure is adopted by PW4 while arresting the accused. The only evidence that placed on record besides PW4 is PW2. On reading in between the lines of the evidence of PW2 and PW4, they clearly depicts that there is no corroboration within the parameters laid down by the statute book. The whole property seized by the Police, was only basing on the disclosure statement, which is not admissible as per the Judgments referred supra. 26. On careful perusal of the evidence of PW3, this Court found one more interesting aspect i.e., PW3 could not specifically state the name of PW1 while he was in the box. The appellate Court states that they draw a presumption under Section 114(a) of Evidence Act that the prosecution proved its case to draw a presumption. 26. On careful perusal of the evidence of PW3, this Court found one more interesting aspect i.e., PW3 could not specifically state the name of PW1 while he was in the box. The appellate Court states that they draw a presumption under Section 114(a) of Evidence Act that the prosecution proved its case to draw a presumption. In order to draw presumption under Section 114(a) of Evidence Act, the Judgment of Hon’ble Apex Court in Manoj Kumar Soni case (mentioned supra) clearly states that for such presumption there must be with other cogent evidence, and it must not be drawn in isolation. So the Courts below cannot take such presumption without any corroboration or any other cogent evidence on record. The trial Court as well as first Appellate Court also without considering the fact that there is no explanation about the unlawful possession of the looted property in the hands of accused, they have come to conclusion that accused committed offence under Section 411 of IPC. Whereas, in view of the observations made by the APEX Court in Shiv Kumar Case (referred to supra), it is clear in all facts that prosecution failed to prove that the petitioners dishonestly received the stolen property with the knowledge and belief that the goods found in their possession were stolen property. For such theory there must be some evidence. Without such evidence, the Courts below simply because of unexplained possession of M.Os.1 to 7 by the accused, came to a conclusion that the petitioners/accused A1 to A3 are liable for punishment under Section 411 of IPC. 27. In view of the ratio laid down by the Hon’ble Supreme Court in Shiv Kumar Case (referred to supra), the prosecution must prove that the goods in question must be with the knowledge of the accused that they are stolen property, then only it makes culpable. In the present case on hand, there is no such material. Thereby, having regard to the above discussion, this Court is of the considered opinion that the Courts below committed error in convicting the petitioners/accused Nos.1 to 3 for the offence under Section 411 of IPC and the same is liable to be set aside. 28. In the present case on hand, there is no such material. Thereby, having regard to the above discussion, this Court is of the considered opinion that the Courts below committed error in convicting the petitioners/accused Nos.1 to 3 for the offence under Section 411 of IPC and the same is liable to be set aside. 28. In the result, the Criminal Revision Cases are allowed and the conviction and sentence passed against the petitioners/accused Nos.1 to 3, vide judgment dated 09.01.2009 in C.C.No. 379, 380, 381, 386, 387 of 2004 on the file of the Judicial Magistrate of First Class, Palakol, which was confirmed regarding conviction and judgments dated 10.01.2011 in Crl.A.Nos.18, 19, 20, 21, 22 and 24 of 2009 on the file of the learned VI Additional District Sessions Judge, (Fast Track Court), Narsapur, are hereby set aside. Interim orders granted earlier if any, stand vacated. As a sequel, miscellaneous applications pending, if any, shall stand closed.