A. P. SRIVASTAVA, J.

( 1 ) THESE two applications in criminal revision are connected with each other in the sense that the same question of law arises in them. They can, therefore be disposed of by the same judgment.

( 2 ) CRIMINAL Revision No. 55 of 1957 is on behalf of Rajjaua. He was convicted by a Magistrate first Class of Fatehpur under Section 411. P. C. , and was sentenced to nine months R.. His conviction was upheld by the learned Sessions Judge in appeal, but he reduced the sentence to six months R.. The facts found against him by the two Courts are that in the night between the 15th and 16th of July 1956 certain ornaments marked Exs. I to VIII in the case were stolen from the house of Jagdeo. On 19-7-1956 the house of the applicant was searched and these stolen ornaments were recovered from a room in the exclusive possession of the applicant where they were lying buried under the ground. The applicant denied the factum of recovery and did not offer any explanation as to how the stolen ornaments came into his possession,

( 3 ) IN the other case, criminal revision No. 1573 of 1958, Roshan was convicted by a Magistrate first Class of Meerut under Section 411. P. C. and sentenced to six months R.. His conviction and sentence were both confirmed by the Sessions Judge in appeal. The facts found against him were that a theft was committed at the house of Bal Makund in the night between the 21st and 22nd of November 1957. The thieves broke into the house and stole a blanket, shirts and a cycle pump along with other articles. These stolen articles viz. the blanket, shirts and cycle pump were recovered from a Kotha in the exclusive occupation of the applicant Roshan. The Kotha was locked and was opened by Roshan himself. The recovery was made on the 22nd of November 1957.

( 4 ) IN revision the case of Rajjaua came up before Mr. Justice Takru and the case of Roshan came up before Mr. Justice Chaturved. The only point which was raised on behalf of the two applicants before the learned Judges was that the conviction of the two applicants under Section 411. P. C. was not justified, because one of the essential ingredients of that offence had not been established, by the prosecution. It was pointed out that the only facts which the prosecution had proved in the cases of the two applicants were that a theft had been committed and that soon after the theft the stolen property had been recovered from the possession of the applicants. It was urged that in addition to these facts the prosecution was bound to prove that the stolen property had been in the possession of some other person before it had come into the possession of the applicants and if that was not proved the conviction of the applicants under Section 411. P. C. was not justified. Reliance was placed in this connection on certain observations made by their Lordships of the Supreme Court in the case of Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39. Reference was also made to a case decided by Mr, Justice Asthana on 30-10-1956 (Criminal Revn. No. 1142 of 1956 Ramdeo v. State ). Learned counsel for the State in his turn referred to the case of Hanuman v. State. Criminal revn. No. 634 of 1958, D/- 27-5-1958 (All ). Mr. Justice Takru found that there was a conflict between the two single Judge decisions of this Court which needed to be resolved. Mr. Justice chaturvedi also found some difficulty in accepting the interpretation that was being suggested in respect of the decision of the Supreme Court in AIR 1954 SC 39. Both the learned Judges were of opinion that the point which was being raised was of frequent occurrence and that it was necessary that it should be decided by a larger Bench. That is bow the two cases have come up before us.

( 5 ) THE question which we have to decide therefore is whether it is not necessary in every case for the prosecution in order to secure a conviction under Section 411. P. C. to prove by positive evidence in addition to the factum of theft a

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