An appellate court has the jurisdiction to alter a finding of acquittal to one of conviction, but it cannot, in doing so, enhance the sentence.

Shearer, J.

1. This is an appeal by five men who have been convicted by the learned Assistant Sessions Judge of Monghyr under Sec. 412, Penal Code. Three of them have been sentenced to undergo Rule I. for 6 years, while the other two have been sentenced to undergo Rule I. for 3 years. In addition, each has been sentenced to pay a fine of Rules 200 or, in default, to undergo Rule I, for 3 months more. On 1-2-1949, a young Brahmin, Achhutan and Pathak, who is an employee of a firm of cloth dealers in village Bakhri, went to Begusarai to purchase cloth for his firm and for two other firms at Bakhri. An employee of one of the other two firms went to Begusarai with him. A considerable quantity of cloth was purchased, and was put up in eleven bags and afterwards Achhutanand Pathak hired a bullock cart driven by one Bankey Gope. The baga were put on this bullock cart, and Bankey Gope and Achhutanand Pathak set out for Bakhri in the latter part of the night. When the cart had reached a point on the road two miles or so away from Begusarai, it was stopped by a cumber of men armed with lathis. These men assaulted Achhutan and Pathak and took away six of the bags. They also deprived Achhutanand Pathak of his personal belongings and of a not inconsiderable sum of money. Achhutan and Pathak went on along the road for another mile until he met a dafadar, and then went back with this dafadar to Bagusarai where he lodged a first information at 7 A. M. The appellants Mahabir and Basudeo are brothers, and the appellant Balmiki is a son of the former. The other two appellants, Ramautar and Borham, who are also brothers, are related to, and are neighbours of, Mahabir. On 16-2-1949 it is said that the houses of these appellants were searched and the greater part of the property taken away by the dacoits was recovered. It was not, and could not be, denied that Achhuta-nand Pathak was the victim of a dacoity and that the cloth, which was produced in Court at the trial, was part of the property taken away by the dacoits. The defence set up was the very extraordinary one that the cloth had been recovered in quite different circumstances and that the appellants had been victimised by the police at the instigation of one Bishwanath Singh Sharma who is an honorary Magistrate at Begusarai and also a zamindar of Harakh, the village to which the appellants belong. It is true that there has been some litigation between this honorary Magistrate and some of the appellants, and it is also true that some of the persons, who attended as witnesses at the search, were shown to have some connection with Bishwanath Singh Sharma. No fewer than four sub-inspectors of police and an assistant sub-inspector took part in the searches, and the searches were witnessed by as many as four persons belonging to the neighbourhood. There is, dearly, no reason to distrust the evidence of the sub-inspector and of the search witnesses as to what occurred on 16-2-1949, in Harakh. The suggestion that the police, having recovered part of the stolen property, allowed some of the real culprits to go scot free and fabricated a mass of evidence to procure the conviction of men they knew to be quite innocent is preposterous. Assuming, for the moment, that there is evidence to show that each of the two sets of appellants was in possession of so much of the cloth as was recovered from their respective houses, the question that arises is whether or not the learned Assistant Sessions Judge was correct in convicting them of receiving. On this point, the Court below has, in my opinion, misdirected itself. When, soon after the commission of a theft, a person is found in possession of the stolen property, the presumption that ordinarily arises is not that he has received it knowing it to be stolen but that he has stolen it--Reg. V/s. Langmean, (1864) L. & C. 427: (10 L. T. 350). The inference that he is a receiver ought not to be drawn unless there is some circumstance going to show that he