THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.R.C.No.378 OF 2009 ORDER The revision is filed against the conviction and sentence of the Accused Nos.1 and 2 in C.C.No.387 of 2006 on the file of the Court of VI Additional Junior Civil Judge, Guntur, which was confirmed in Crl.A.No.232 of 2008 on the file of the Court of III Additional District Judge, Guntur. The case of the prosecution is that on 29-07-2006 some unknown offenders gained entrance into the house of PW.1 and committed theft of gold ornaments and cash worth Rs.40,000/- and on a complaint given by PW.1, a case was registered by the police and during the course investigation on 14-09-2006 Accused No.1 was arrested and in pursuance of his confession, one gold ring was recovered from the possession of PW.3 with whom it was hypothecated. On 17-09-2006 Accused Nos.2 and 3 were arrested and in pursuance of confession of A- 2 one chain, one pair of hangings and one ring were recovered from the possession of A-3. The identification of the stolen property was conducted and, therefore, the accused were charged for an offence under Sections 454 and 380 I.P.C. The accused pleaded not guilty and after considering the evidence on record, the learned Magistrate found the accused guilty for the offence under Section 411 IPC and accordingly convicted and sentenced to undergo Simple Imprisonment for a period of one year each. As against that judgment, appeal being Crl.A.No.232 of 2008 was preferred by Accused Nos.1 and 2. In the said appeal, the conviction and sentence were confirmed. Now the point that arises for consideration is:- Whether the conviction and sentence imposed by the learned Magistrate is legal and sustainable? POINT:- In support of the case of the prosecution PW.1 spoke about the loss of his belongings and lodging of Ex.P-1 report. PW.2 is the wife of PW.1 and she spoke that Mos.1 to 8 belongs to her and they were lost in a theft. The evidence of PW.3 is that A-1 pledged a gold ring which was seized by the police. The evidence of PW.4 is the apprehension of A-1 and in pursuance of confession of A-1, seizure of gold ring from the shop of PW.3. The evidence of PW.5, who was mediator, is about the apprehension of A-2 and A-3 on 17-09-2006 and seizing of some gold properties. The evidence of PW.6 is about visiting the scene of offence on the complaint of PW.1 and assisting the Investigating Officer. PW.7 is the Investigating Officer who spoke about the apprehension of the accused and seizure of the properties. In order to find the accused guilty of the offence under Section 411 IPC, the prosecution has to prove that certain stolen properties were found in possession of the accused for which there was no explanation and therefore the accused is the guilty of the offence. From the evidence of PWs.1 and 2, it may prove that there was a theft and Mos.1 to 8 belongs to them and lost in a theft. The courts below have ignored the fundamental need of proving the fact that the property said to have been recovered in pursuance of the confession of the accused person, is the property that was lost by PW.2. Either in the evidence of panch witnesses or in the evidence of Investigating Officer, the particulars of the property that were said to have been seized either at the instance of A-1 or from the possession of A-2 and A-3 were not mentioned and identified. It is not sufficient that PW.2 claims that Mos.1 to 8 are the properties belonging to her. It is further necessary for the prosecution to prove that Mos.1 to 8 were recovered either at the instance of A-3 or from the possession of A-2 and A-3. If such evidence is not there, there cannot be any case of proving the recovery of stolen property and consequently any need of the accused to explain such a possession. Unfortunately, both the courts have not adverted to this fundamental need of evidence and more casually gone through the depositions and panchnamas and convicted the accused persons. When a conviction is recorded under Section 411 IPC, it is the duty of the Magistrate to satisfy that the property seized was identified in the evidence of witnesses and mere oral statement is not sufficient. None of the witnesses have identified Mos.1 to 8 as the property that was seized from the confessional statement of any of the accused persons. Therefore, the conviction and sentence imposed by the courts below is not warranted and accordingly the revision case is liable to be allowed. Accordingly, the Criminal Revision Case is allowed setting aside the conviction and sentence imposed against the revision petitioners/Accused Nos.1 and 2 and they are found not guilty and acquitted of the charge under Section 411 IPC. If Accused No.3 has not undergone the imprisonment and if any warrant is pending against him, he is also entitled for the benefit of this judgment. _______________________ N.R.L. NĀGESWARA RĀO,J 20-12-2011 TSNR