JUDGMENT
S. Shamsul Hasan, J.
1. The two petitioners were convicted under Section 411 of the Indian Penal Code on the allegation that a stolen radio transistorised was recovered from their possession. It is said that the radio belonged to the ‘informant who had alleged that it was removed from his premises after breaking the lock which he discovered when he returned from his office. No one was named as the person who removed the radio. Quite some time after-precisely one month and a half-the said radio, it was alleged, was recovered from the shop of the petitioners where they sell toddy.
2. Two infirmities have been pointed out on which the conviction and sentence are sought to be set aside. Firstly, there was no evidence that the petitioners knew or had reason to believe that the radio was a stolen property, an essential ingredient before the matter can be brought within the purview of Section 411. Secondly, the recovery of the radio from the toddy shop of the petitioners has not been proved inasmuch as seizure witnesses have not been examined, the only witnesses being the informant and the investigating officer. Lastly, it is submitted that no test identification parade was held and for the first time the informant identified the radio in court. These, on facts and law, have not been assailed by the learned counsel for the State, In ray view, therefore, all these three questions are substantial questions of law. The petitioners could not be saddled with the knowledge that the radio was the stolen property, before the prosecution really laid the foundation that the petitioners voluntarily assisted in concealing or disposing of or making away with property, which they know or had reason to believe to be stolen property. Since the recovery itself was challenged, this was also required to be proved beyond reasonable doubt and lastly any identification in court either of person or article for the first time cannot be the basis of prosecution and consequential conviction. The application is, therefore, allowed and the conviction and the sentence are set aside.
