JUDGMENT : 1. All the aforesaid appeals arise out of order of conviction dated 15.09.1999 & order of sentence dated 20.09.1999, passed in S.T. No. 262 of 1997 by learned Additional Sessions Judge, Dhanbad wherein and whereunder the present appellants have been convicted for committing offence U/s 412 I.P.C. and have been sentenced to undergo R.I. for five years. 2. In the present case, FIR being Jharia P.S. Case No. 69 of 1997 is based upon the fardbeyan of informant Manoj Kumar Burnwal who stated therein that his house is at Nayee Duniya, P.S. Jharia, District Dhanbad and in the room situated at outer side of the house, while he was making gossip with his family members and one girl Guriya of his neighborhood, then at about 8.15 P.M. in the night there was power cut and he started portable generator. It is also alleged that he had taken connection from commercial generator in the house from outside but when the current did not come from commercial generator then informant asked the said girl Guriya to see the outside why the commercial generator has yet not started and the moment Guriya opened the door of his house about 7-8 unknown miscreants entered into his house, two of them were armed with pistol and one was having bomb and others were having Chhura and Bhujali, etc. Informant claimed that he has identified two of them namely, Kallu Rawani and Birju Bhuiyan and it is stated that Kallu Rawani was standing on the main road having bomb in his hand, whereas Birju Bhuiyan was armed with pistol. The electricity connection was disconnected and miscreants started taking ornament from his mother, bhabhi and sister. Informant was asked by Birju Bhuiyan to open the almirah, then out of fear his sister Madhu Kumari opened both the almirah kept in inner and outer room and they searched said almirahs. The miscreants committed dacoity for about ten minutes in the house of informant and it is alleged that dacoits took away one gold chain, two gold ring, one gold kanbali from his mother and one gold chain with mina, one mangal sutra, two gold rings, golden kanbali from his bhabhi Kavita Devi and from his sister Madhu Kumari they took gold chain, two gold rings, gold Kanbali. Gold chain from the neck of his younger brother, Ranjit was also taken and they also looted Rs. Gold chain from the neck of his younger brother, Ranjit was also taken and they also looted Rs. 20,000/- and one Yashika 3D Camera, one silver key ring, six old wrist watches, out of which one was lady Titan of golden dial with golden chain, 2 allwyn of plain dial and steel chain and two were citizen, one of black dial and other of the plain dial with steel chain and one H.M.T, with plain dial with leather belt and two nose gold besar. Thereafter, they fled away by extending threat. It is further alleged that dacoits hurled two bombs which caused injury to Bijoy Kumar Singh generator labour and police patrolling party also reached there and chased the culprits but they fled away by taking advantage of darkness of night. Informant has given physical description of miscreants also and claimed to identify the miscreants, if shown to him. 3. From record, it appears that initially Munna Rawani was apprehended and on his confession other co-accused persons got arrested one by one and allegedly looted articles got recovered from their respective possession. After due investigation chargesheet has been submitted against appellants and other co-accused persons. Cognizance for offence was taken by learned Magistrate, thereafter matter was committed to court of session. Charge has been framed on 05.12.1997 under Section 397 of I.P.C. and Section 412 of I.P.C. out of these appellants, two other persons have been framed under Section 397 I.P.C. only. The substance of acquisition was read over and explained to the accused persons to which they pleaded not guilty and claimed to be trial. 4. To prove its case, prosecution has examined as many as 12 prosecution witness. During trial learned court below has exonerated all the appellants from the charge under Sections 395, 397 of IPC on the premise that all the inmates of the house of the informant including the informant have not identified the accused persons in the court during trial. It is required to be noted that two of the accused persons have been identified by the informant during TIP but later on during course of trial informant could not identify even those two accused persons. 5. However learned trial court found guilty all the appellants under Section 412 of IPC. Therefore, this Court would confine its scrutiny qua the material brought on record by prosecution qua Section 412 of IPC against the appellants. 5. However learned trial court found guilty all the appellants under Section 412 of IPC. Therefore, this Court would confine its scrutiny qua the material brought on record by prosecution qua Section 412 of IPC against the appellants. I.O. has got examined in the present case as P.W-12, who has stated in his testimony that on 18.04.1997 he apprehended accused Kallu Rawani and some recovery was effected from his person. It is further deposed by I.O. that on confession of Kallu Rawani, Soshi Lall Ram and Vidya Shankar Rajwar got apprehended from the house of Soshi Lall Ram and from his house one pair of ear tops golden type and Rs. 300/- and from accused, Vidhya Shankar Rajwar one Yashika Camera and one casio wrist watch with white dial and Rs. 500/- was recovered. Seizure list has been prepared to this effect, vide Exhibit 5/1. Further, Subhash Dutta got apprehended and from his house gold chain with mina measuring about 1¼ bhar got recovered and seizure list got prepared, vide Exhibit 5/3. Further Sheo Ram Gupta @ Dhadhua and accused Dharmendra Sao got apprehended while Sheo Ram Gupta was doing negotiation to sale of gold chain, and from the neck of accused Dhadhua a gold chain of 12 annas bhar and from the pocket of his pant one golden type ring about 5 annas bhar was got recovered and seizure list was prepared, vide Exhibit 5/4. Further Munna Rawani also apprehended near Bakra Hatta More and on search, one pair of ear tops weighing about 12 annas bhar was recovered, and seizure list was also prepared vide Exhibit 5/5. For quick and better appreciation of alleged recovery from appellants and other co-accused persons and mark of Exhibits in tabular form is taken from the impugned Judgment of trial court and reproduced herein. Name of accused Alleged recovered article(s) No. of Exhibit Kallu Rawani Golden chain, one wrist watch, 3 pieces of saree, cash rs. 800 Ext.5 Sheo Ram Gupta @ Dhodhai One golden chain and one golden ring Ext. 5/4 Bishundeo Sao One mangal sutra of white moti and 17 red and cash Rs. 300 Ext.5/2 Vidya Shankar Rajwar One yashika Camera and one wrist watch with plain dial casio no. MQ 310 Japan Ext. 5/1 Shoshilall Ram One pair of Kanbali tops-golden type Ext. 5/1 Tempo Bouri @ Shankar Chhetrapal Two pieces of golden ring Ext. 5/4 Bishundeo Sao One mangal sutra of white moti and 17 red and cash Rs. 300 Ext.5/2 Vidya Shankar Rajwar One yashika Camera and one wrist watch with plain dial casio no. MQ 310 Japan Ext. 5/1 Shoshilall Ram One pair of Kanbali tops-golden type Ext. 5/1 Tempo Bouri @ Shankar Chhetrapal Two pieces of golden ring Ext. 5/6 Munna Rawani One pair ear tops of golden type Ext. 5/5 Dharmendra Sao One golden chain No seizure list in respect of this accused Subhash Kumar Dutta One golden chain with Mina of the ear Ext 5/3 6. It appears that I.O. has got TIP of recovered articles done by the then C.O. and TIP chart has got exhibited in the present case as Exhibit 6. P.W. 13 got conducted test identification parade of recovered articles while he was circle officer, Jharia and he categorically stated in his testimony that he got conducted TIP of recovered articles in respect of Jharia P.S. Case No. 69 of 1997 by observing all the formalities and has proved the TI Parade chart as Ext.6. 7. Learned counsel for appellants submitted that as none of seizure witnesses have supported the case of prosecution and only they identified their respective signature on the seizure list, as such, no credibility ought to given to the said seizure list therefore entire recovery (alleged) is doubtful. Further submission has been made, that all the witnesses who was inmates of the house where dacoity was committed categorically stated in their respective testimony that prior to TIP of articles at police station, articles were shown to them and it is also admitted case of prosecution that no similar items were mixed with the alleged recovered articles at the time of TIP, so it is not a proper TIP in consonance with law and therefore, having no value in the eyes of law. 8. Lastly, it has been pointed that no ingredient of Section 412 is available on record, because these accused persons were charged under Section 395 of I.P.C., also apart from Section 412 of I.P.C. and they have been exonerated from the charge of Section 395 of I.P.C., thereafter, it is duty of the prosecution to bring on record the ingredient of Section 412 of IPC which is not at all available on record. 9. 9. Learned APP for the State submitted that recovery has been effected from the accused appellants and it has been duly identified during course of TIP conducted by Circle Officer, so there is no need for this Court to interfere in the impugned Judgment. 10. Heard the rival submissions of the parties and perused the trial court record. 11. It is opposite for this Court to appreciate Section 412 of I.P.C. before discussion the factual matrix of this case under Section 412 of I.P.C. reads as under:- “Section 412 speaks that:- Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” From the bare perusal of the above stated section, it is apparent that to constitute an offence under Section 412 of I.P.C. the prosecution has to prove (a) that the property in dispute was stolen property (b) the accused didn’t receive and retain it (c) It received from the person who belonged to or had belonged to a gangs of dacoits (d) So received with the intention of causing wrongful gain to one or wrongful loss to another person (e) that he knew or had reason to believe that person from whom he had received the stolen property belonged to a gang of dacoits and he knew or had reason to believe that it was a stolen property. 12. Coming to the facts of this present case, this Court finds that all the seizure witnesses examined in the present case i.e. P.W-1, P.W-2, P.W- 3, P.W-9, P.W-10, P.W-11 got hostile and they have not corroborated/supported the factum of recovery. As such, there is only one version of P.W-12 is available on record which speaks about the respective recovery as shown in the preceding paragraph of this Judgment. 13. As such, there is only one version of P.W-12 is available on record which speaks about the respective recovery as shown in the preceding paragraph of this Judgment. 13. P.W-1, Ganesh Ram has identify his signature in the seizure list and has categorically stated that nothing has been recovered in his presence and his signature was taken in police station at the behest of Chota Babu and at the time of putting his signature no articles were before him and even nothing has been shown to him. 14. P.W-2, Hiraman Sao has identified his signature in the seizure list and also deposed in similar way to that of P.W-1 and has stated that nothing has been recovered from the house of Soshi Lall Ram, Kallu Rawani and Bishundeo Sao and he put his signature in three seizure list at the behest of Chotababu and while putting signature nothing was before him. 15. P.W-3, Manoj Kumar Rawani has identified his signature in the seizure list and has also stated that no search of Munna Rawani was made in his presence and he put his signature at police station on plain paper and no article has been shown to him. 16. P.W-9, Awadhesh Rawani has identified his signature in the seizure list and stated that his statement was not recorded before police and he put his signature on white paper and before getting signature Daroga ji has not told him that for which incident signature was being taken and he put signature at Jharia T.O.P. 17. P.W-10, Hardhan Das has identified his signature in the seizure list and has also statement that his statement was not recorded and he put his signature in police station on the paper and nothing was read over to him about the contents of that paper. 18. P.W-11, Rajesh Agarwal has identified his signature in the seizure list and has categorically stated that no recovery has been effected before him and police has not recorded his statement and he put his signature at police station and he did not read the content of that paper and even it was not read over to him. 19. All the aforesaid seizure witnesses have not corroborated the factum of recovery and has only conceded to the fact regarding his signature on the seizure list. 20. 19. All the aforesaid seizure witnesses have not corroborated the factum of recovery and has only conceded to the fact regarding his signature on the seizure list. 20. As far as TIP of articles are concerned, P.W-4 informant, P.W.-7 informant’s sister, P.W.-5 informant’s mother, P.W.-6 informant’s bhabhi have stated in their respective testimony that before TIP of article at police station, the same has been shown to them at their house. 21. Admittedly, all the appellants have been exonerated from charge of dacoity in the present case. However, they have been found guilty under Section 412 of I.P.C. Meticulous reading of all the prosecution witness do not suggest that any iota of material is available on record which could remotely attract the ingredient of Section 412 of I.P.C. as prosecution has miserably failed to bring on record. 22. Hon’ble Supreme Court in the case of Venkateshwara Rao @ Venkatal @ I. Rao versus State represented by Inspector of Police reported in (2002) 6 SCC 247 at has held that when the court held that in absence of guilt for the offence of dacoity, there exists a presumption that the person exonerated from the change of dacoity has no knowledge during which offence, the documents seized from him were allegedly stolen. Relevant para of the judgment is quoted here under:- 4…….. Therefore, it becomes obligatory on the part of the prosecution to establish that the property in question was involved in a dacoity and that the appellant was in possession of the same knowing that the said property was the subject-matter of a dacoity or at least had reasonable ground for believing that the said property had been involved in a dacoity. When the Court held that the appellant was not guilty of the offence of dacoity, it should be presumed that the appellant had no knowledge of the dacoity during which offence the documents seized from him were allegedly stolen. In the instant case what the prosecution has established is that the appellant was in possession of Exts. P-36 to P-40 which the prosecution alleges, belongs to a lorry involved in a dacoity but that part of the knowledge of dacoity cannot be presumed by the mere possession of these documents unless the prosecution adduced some evidence to show that the appellant had knowledge of such dacoity….. 5………. P-36 to P-40 which the prosecution alleges, belongs to a lorry involved in a dacoity but that part of the knowledge of dacoity cannot be presumed by the mere possession of these documents unless the prosecution adduced some evidence to show that the appellant had knowledge of such dacoity….. 5………. we are of the opinion that the prosecution in this case having failed to establish the charge of dacoity against the appellant and assuming that the documents Exts. P-36 to P-40 were recovered lawfully from the appellant, still has not established the fact that the appellant had received these documents knowing that the same or having believed that these documents were involved in a dacoity. Since the onus of proving this knowledge lay on the prosecution and the prosecution having failed to discharge this onus on the material on record, we are not satisfied that the appellant could be held guilty of the offence under Section 412 IPC, more so when he has specifically denied the recovery. 23. Considering the aforesaid facts and legal proposition, this Court is of considered view that prosecution has failed to bring on record the ingredient of Section 412 of IPC apart from that as the seizure witnesses have not supported the case of prosecution recovery is also doubtful, therefore, this Court is not satisfied that appellants could be held guilty of the offence under Section 412 I.P.C. 24. In the view of above discussion, this Court is of considered view that appellants are entitle for benefit of doubt, as such the impugned judgment of conviction dated 15.09.1999 and order of sentence dated 20.09.1999 passed by learned Additional Sessions Judge, Dhanbad in S.T. No. 262 of 1997 is set aside. 25. Resultantly, these appeals are hereby allowed. 26. Since, the appellants are on bail, they are discharged from the liability of their respective bail bonds. 27. Let trial court record be sent back to the court concerned.