S.M.SIKRI, J.

(1) THE only question which arises in this appeal by special leave is whether the appellant, Sheo Nath, should be convicted under Section 396, I. P. G. or Section 411, Indian penal code, or Section 412, Indian penal code The facts as found by the High court are these : A dacoity was committed at the shop of Ram Murat in Dhaneja village by 15 to 20 persons on 19/08/1966, at about 11.30 p.m. One dacoit. Ram Shanker, was armed with a gun while others carried spears, Gandasas and Lathis. During the course of the dacoity Ram Murat was injured. One Pancham, who lived in a house not far from Ram Murats shop, and two others came running on hearing the noise. Pancham was shot down with the gun by dacoit Ram Shanker. The dacoits then escaped with clothes, ornaments, cash, etc. looted from Ram Murats shop. After the dacoits left Ram Murat dictated a report about the occurrence in which he named Ram Shankar Singh, Jaintri Prasad Singh, Nanhe Singh and Sulai accused as having been among the culprits and this report was sent to the Jalalpur Police Station, five miles away, where it was received and recorded at 6 a. m. next morning.

(2) ON 22/08/1966, i.e. three days after the dacoity, the house of Sheo Nath, appellant, was searched and three lengths of cloth were recovered which were subsequently identified by Ram Murat and a tailor named Bismillah as having been stolen from Ram Murats shop in the dacoity.

(3) THE-HIGH court, agreeing with the learned Sessions Judge, relied on the evidence of three eye-witnesses regarding the manner in which the occurrence took place and regarding the participation of the four named accused persons. Sheo Nath had not been named by the eye-witnesses or in the dying declaration of Pancham and no witness claimed to have identified him taking part in the dacoity. But, relying on,, the discovery of three lengths of cloth and their identification, the High court convicted Sheo Nath under Section 396, Indian penal code The High court observed :

"FROM the material on record we are fully convinced that the Exs. 2 and 3 were stolen from the shop of Ram Murat in the course of the dacoity committed in the night between August 19 to 20, 1966, and since they were recovered from the possession of Sheo Nath appellant only 2 or 3 days later, it is legitimate to infer that he was one of the dacoity vide illustration (a) to Section 114 of the Evidence Act. Sheo Nath, therefore, has been rightly convicted under Section 396, Indian penal code"

(4) THE learned counsel for the appellant contends that in the circumstances of the case the High court should not have convicted the appellant under Section 396, Indian penal code, but only under Section 411, Indian penal code Section 114 of the Evidence Act and illustration (a) read as follows :

"114. 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 facts of the particular case. Illustrations. The court may presume(a) that a man who is in possession of stolen goods after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." This Section was considered by this court in Sanwat Khan v. State of Rajasthan. This court, after considering some High court cases, observed : "In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.

" In Wasim Khan v. State of Uttar Pradesh" this court held that "r