The main legal point established in the judgment is the requirement for clear evidence to establish ownership and possession of alleged stolen property, and the distinction between dishonestly receiving and retaining stolen property.

ARIJIT PASAYAT, J.

( 1 ) PETITIONER assails his conviction u/ S. 411 of the Indian Penal Code, 1860 (in short the 'ipc') and sentence of three years rigorous imprisonment awarded by learned Subordinate Judge-cum-J. M. F. C. , Jeypore, and affirmed in appeal by learned Addl. Sessions Judge, Jeypore.

( 2 ) THE accusations which form the basis of trial are that certain records of judicial proceedings were found missing from the court of J. M. P. C. Umerkote, Koraput on 9-11-1982, by Typist-cum-Clerk in charge of general files (P. W. 1 ). On 20-11-1982, the Nazir (P. W. 2) on getting information that the records might be in the attache of petitioner proceeded to his own house where petitioner was temporarily staying, found attache was partially locked and on opening the unlocked side, found certain wearing apparels and case records. This inspection was done in the presence of some Advocates of Umerkote Bar. The attache was taken to the police station, and handed over to the in charge A. S. I. of Police (P. W. 5 ). Since there was no case pending, station diary entry was made, seizure list was prepared and the attache was handed back to P. W. 2. The Magistrate who was on leave on 20-11-1982 joined on 27-11-1982 and on 2-12-1982 attache was produced before him, lock was broken in his presence and 12 case records, some wearing apparels and a relieve order dated 16-8-1982 were found inside the attache. A case u/s. 41 1, IPC was instituted, after investigation charge-sheet was submitted and petitioner faced trial. On evaluation of evidence on record, petitioner was convicted and sentenced as aforesaid. In appeal they were affirmed.

( 3 ) MAIN plank of petitioner's argument is that the ownership of attache was not established, and evidence is discrepant about the manner of finding out attache and, the background for alleged search. It was pointed out that P. Ws. 1 and 2 were originally responsible for custody of documents and files, and wanted to shift responsibility which otherwise would have been fixed on them; they have with mala fide intention roped In the petitioner so that they will go scot-free. Learned counsel for State, however, submits that even though attache was not seized from petitioner personally, materials on record show that he was the owner' thereof and this fact is sufficiently reflected by the fact that petitioner's relieve order was found in the attache in question.

( 4 ) STOLEN property is defined u/s. 410, IPC. The onus lies on the prosecution to bring home guilt of a person u/s. 411, IPC and in order to secure conviction, it has to be proved that (i) property in question was stolen property within the meaning of S. 410, IPC: (ii) the same was in possession of accused; and (iii) some other person other than accused had possession of property before accused got possession of the same, and accused had knowledge or reason to believe that property was stolen property and with such knowledge or belief, dishonestly received it or dishonestly retained it. Offences for receiving and retaining stolen property are contextually different. Use of alternative expression 'dishonestly receives or retains' in one and the same section, requires prosecutor to prove that accused either received or retained property, of course dishonestly. The prosecutor need not prove that it was dishonestly received as distinct from dishonestly retained, or dishonestly retained as distinct from dishonestly received. It is enough to prove the facts to justify inference that accused either dishonestly received or retained the property. Prosecution has to establish that property in question was stolen property and there was either dishonest receipt or dishonest retention. For sustaining a conviction, it must be shown that accused was in possession of property. Possession need not be immediate physical possession, but may be constructive possession. It is not necessary that accused should have had manual possession of the goods. It is sufficient if