VISHNU SAHAI, J.

The appellant aggrieved by the judgment and order dt. 13-7-1984, passed by the Additional Sessions Judge, Pune, in Sessions Case No. 101 of 1984, convicting and sentencing him to undergo five years R.I. and seven years R.I. for the offences under section 395 and 397 I.P.C. respectively has come up in appeal before us.

2. The case for the prosecution is that on the night of 17th/18th March, 1983 the appellant along with five others committed dacoity in the agricultural field of the complainant Digambar Bandal, P.W. 1 situated within the limits of village Karade, and during the course of dacoity, he and his associates are alleged to have looted valuables belonging to Sakhubai Bandal, P.W. 5 and Saraswatibai, the mother and the wife of the informant respectively. It is also said that during the course of dacoity, the dacoits snatched both the earrings of Sakhubai and 3 golden beads and 2 golden vatis of the Mangalsutra of Saraswatibai and caused injuries to the complainant, Sakhubai and Chimaji (father of the complainant). The dacoit are alleged to have been recognised in torch light.

3. The F.I.R. of the incident was lodged by Digambar Bandal, P.W. 1 on 18-3-83 at 8 a.m. at Shirur Police Station. It is at Exhibit 7. In the said F.I.R., the appellant is not nominated.

4. The injuries of the complainant, Sakhubai and Chimaji were medically examined. The medical evidence shows that all of them had blunt weapon injuries. It further shows that one of the injuries of Sakhubai was grievous in-as-much as 5th, 6th and 7th rib of her left side were fractured. This has come in the evidence of Dr. Anil Shah, P.W. 8.

5. The investigation was conducted in the usual manner. On 23-5-1983, P.S.I. Gavade of Jejuri Police Station, received a wireless message about the arrest of the appellant. During the course of interrogation, the appellant stated that he could get the looted property recovered. Consequently, on 26-5-1983, in the presence of P.S.I. Gavade, public panchas Madhukar Sutar, P.W. 9 and Baba Dhavate, P.W. 10, on the pointing out of the appellant, from inside his house, which was found to be locked; the lock having been broken by him, three golden beads and two golden vatis, wrapped in a paper, were recovered, from the surface of the wall and a wooden plank was kept above the paper in which they were wrapped.

6. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellant was charged for offences under sections 395 and 397 I.P.C. To the said charges, he pleaded not guilty and claimed to be tried.

During trial, the evidence adduced against the appellant was of a two-fold nature:-

(a) Identification by witnesses in the Court; and

(b) recovery of golden ornaments on his pointing out.

The trial Judge rejected the evidence of identification on the ground that identification for the first time in Court could not be relied upon. He, however, convicted the appellant on both the charges i.e. 395 and 397 I.P.C. On the basis of recovery of three golden bead and two golden vatis on his pointing out.

7. We have heard Ms. Anita Agarwal for the appellant and Mr. M.P. Galeira, Additional Public Prosecutor, for the State of Maharashtra-respondent. The short point in this appeal is firstly whether the evidence of recovery of golden ornaments on the pointing out of the appellant inspires confidence and secondly if it does; would it be sufficient for sustaining the conviction of the appellant for the offences in question.

Our answer to the first question is in the affirmative and to the second in the negative.

It is true that out of two public panchas, one namely Madhukar Sutar turned hostile but, the evidence of the second panch Baba Ghavte, P.W. 10, which we have meticulously perused along with that of the P.S.I. Gavade, the Investigating Officer, inspires confidence. The statement of Baba Ghavte, P.W. 10 reveals that he is a man of status owning 20 acres of land and has no grudge against the appellant. It is true that P.S.I. Gavade is a police witness but, that would be no ground to reject his testimony. In his statement, we have found no such infirmity on the basis of which we could reject the same. We accept the said recovery. It is significant to point out that Sakhubai P.W. 5, mother of the informant recognised the three golden beads and the two golden vatis, when they were shown to her during trial, as articles which were parts of the Mangalsutra of her daughter-in-law. The trial Court was justified in believing the evidence of recovery.

8. However, we feel that the trial Court was grossly unjustified merely on the basis of the evidence of recovery, in convicting and sentencing the appellant under sections 395 and 397 I.P.C. It is true that under section 114-A of the Indian Evidence Act:-

"The Court my presume:

(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."

Since a perusal of sections 390 and 395 I.P.C. shows that dacoity is an aggravated form of theft, the presumption contained in this provision would also be applicable to the offence of dacoity.

The said provision stipulates that in a case where recovery is made, soon after the theft, a presumption of theft can be raised. But, in the instant case, this presumption cannot be raised for even according to the prosecution, the dacoity took place on the night of 17th/18th March, 1983 and the recovery was made on 21-4-1983, i.e. after a period of nearly one month and 10 days. And one month and ten days cannot be construed as soon after. In our view, on the facts of this case, it would be reasonable to infer that the appellant knew or had reason to believe that they were stolen goods and since he had dishonestly retained them, he would be guilty of the offence, under section 411, I.P.C. In this connection, it would be pertinent to refer to the decision of the Apex Court reported in A.I.R. 1970 Supreme Court page 535 (Sheo Nath, appellant v. The State of Uttar Pradesh, respondent)1, wherein the recovery was made, three days after the dacoity but the Supreme Court did not raise a presumption under section 114-A of the Indian Evidence Act in respect of the offence of dacoity but, convicted the accused instead under section 411, I.P.C.

9. The only question which remains is that pertaining to sentence. As the offence was under sections 395 and 397 I.P.C., there is a reasonable likelihood of the appellant having been in jail for sometime as an undertrial. From the record, it appears that as a convict he has served three weeks. He was convicted by the trial Court on 13-7-1984 and was granted bail by this Court on 4-8-1984. Bearing this in mind, as also the fact that 14 years have elapsed, since the incident took place, in our view, it would not be expedient in the interests of justice to send the appellant to jail and a sentence of fine instead would meet the ends of justice. Bearing in mind the over all circumstances, we feel that a sentence of fine of Rs. 3000/- in default whereof the appellant would undergo 6 months R.I. would be proper.

10. In the result, this appeal is partly allowed and partly dismissed. We acquit the appellant for offences under sections 395 and 397 I.P.C. and set aside his sentence of five years and seven years respectively on those counts. Instead we convict him under section 411, I.P.C. For that offence, we reduce his sentence to the period already undergone by him and impose a fine of Rs. 3000/- and six months R.I. in its default. The said fine should be deposited by him within a period of 3 months from today in the trial Court.

In case the appellant does not pay the fine within 3 months from today, as directed by us, he shall undergo the sentence of 6 months R.I. imposed in its default. In case the appellant pays the fine within the stipulated period, his bail bonds shall stand cancelled and sureties discharged.

The trial Court would be at liberty to accept the fine on production of a certified copy of the Judgment of this Court which in case an application is made, shall be issued to the appellant on an expedited basis.

Appeal partly allowed.