The presumption under Section 114 of the Evidence Act can be applied to a charge of dishonest retention of stolen property, and a conviction under Section 412, I. P. C. may be justified based on the circumstances of the case, including the recovery of stolen property soon after the commission of dacoity.

R. L. NARASIMHAM, C. J.

( 1 ) THIS is a revision against the judgment of the Adaitional Sessions Judge of cuttack, maintaining the conviction ot the two petitioners under Section 412, I. P. C. but reducing the sentence passed on them by the Assistant Sessions Judge of cuttack, from three years rigorous imprisonment each to eighteen months rigorous imprisonment each.

( 2 ) THE two petitioners were tried by a Jury in the Court of the Assistant Sessions judge of Cuttack tor offences under Section 395 and Section 412, I. P. C. A dacoity was committed in the house of one Khetrabasi Panigrahi during the night of the 15th/16th May 1952 and several valuable ornaments were taken away. On 21-5-1952 some of these ornaments were recovered from the house of the two appellants and they were subsequently identiiied by Khetribasi Panigrahi as some of the properties that had been looted from his house by the dacoits. Some of the witnesses also claimed to have recognised the two petitioners during the commission of the dacoity. Hence alternative charges under Section 395 and section 412, I. P. C. were framed against them. The two petitioners, however, denied the charges but admitted the recovery of the ornaments from their houses. Petitioner Bama Jena stated that most of the ornaments recovered from his house belonged to him and that the rest belonged to one Atul a minor son of his brotherin-law and that they were kept in his custody. He thus clearly admitted the possession of these ornaments and has given some explanation to account for the same. Similarly, petitioner Poka Jena admitted the recovery of the ornaments from his house, but claimed them as belonging to him.

( 3 ) IN his charge to the jury the learned Assistant Sessions Judge carefully analysed the oral evidence on the question of identification regarding the actual participation of the two petitioners in the commission of dacoity. He pointed out some of the unsatisfactory features in the test identification parade and rightly left it to the Jury to accept or reject the oral evidence on the question of identification. The Jury gave a unanimous verdict of 'not guilty' in respect of the charge under section 395 I. P. C. and hence it may be inferred that they were not prepared to accept the oral evidence of the prosecution witnesses regarding the participation of the petitioners in the commission of dacoity.

( 4 ) AS regards the charge under Section 412, I. P. C. the learned Assistant Sessions judge rightly drew the attention of the Jury to the principle contained in illustration (a) to Section 114 of the Indian Evidence Act. The Jury held both the petitioners guilty under Section 412 I. P. C.

( 5 ) MR. M. S. Rao on behalf of the petitioners raised the following questions of law in support of tnis revision petition:

(i) The petitioners were called upon to meet a charge of dishonest retention of stolen property and not dishonest receipt of stolen property. Hence the trial court was not justified in directing the Jury to draw the presumption under illustration (a) to Section 114 of the Evidence Act. (ii) The petitioners were merely heads of their lamilies and there was no further evidence to show that the incriminating ornaments were kept in their house with their knowledge. Hence the tria1 Court should have directed the Jury to hold that the petitioners were not in possession of the incriminating ornaments. (iii) In any case, in the absence of any other circumstance and from the mere fact that the petitioners were found in possession of stolen property taken way during the commission of dacoity, they should have been convicted only under Section 411 I. P. C. and not under Section 412 I. P. C.

( 6 ) IN my opinion, none of these three grounds is sustainable.

( 7 ) IT is true that the learned Assistant Sessions Judge charged the two petitioners with dishonest retention of stolen property and not with dishonest receipt of such property. In his charge to the Jury also he spoke througnou