- (1.) THIS is a revision petition by Ram Narain against the judgment of the Additional Sessions Judge Bundi of the 24th of April 1952, confirming on appeal the judgment of the Extra Magistrate Patan of the 5th of April, 1952 by which Ram Narain was convicted under sec. 457 I. P. C. and sentenced to one year's R. I. and a fine of Rs. 200/- or in drfault a further term of 2 months' R. I.
(2.) THE prosecution case was that during night between the 20th and 21 of August, 1951, thieves broke in the house of one Khema and stole away certain articles. THE next day Khema came to know about it and he made a first information report at police station, Patan, of this occurrence. THE plice arrested Dhanna, Ram Narain with the case of Ram Narain in this revision and the cases of other accused need not be discussed here. On the 31st of August, 1951, from a search of the house of Ram Narain the police recovered one barrel of a gun which is said to have been stolen from Khema's house. THE wife of Ram Narain sent through Kana on the 22nd of August, 1951 tothe police a pair of golener-rings stated to have been stolen from Khema's house. THE police challane Ram Narain along with others and ultimately after trial Ram Narian a was convicted under sec. 457 I. P. C. and sentenced as noted above. His cinviction and sentence were upheld by the Additional Sessions Judge Bundi. In this revision it has been argued by the learned counsel of the petitioner that the courts below were wrong in basing the conviction on the recovery of a barrel of a gun form the house of the petitioner and on production of a pair of golder ear-rings by the wife of the petitioner through Kana. It is strenuously argued that the produon of a pair of golden ear-rings by the wife of the accused has no connection whatsoever with Ramnarain and that this circumstance cannot connect Ram Narain with this offence. 'it is further urged that the recovery of a barrel of a gun from the house of Ram Narain cannot raise a presumption of guilt against the accused under the circumstances of this case because it has not been disclosed by the prosecution as to from which place the stolen property had been recovered from the house of Ram Narain. There are a number of passage for entry into his house and reasonable possibility of other persons introducing the stolen property cannot be safely ignored. The house was in the occupation of both husband and wife and the relations of the husband and wife were not very happy. The possibility of the wife or some other person introducing the stolen property in the house should not have been lost sight of. It is further stressed that the place from where the stolen barrel is said to have been recovered has not been shown to be in the exclusive occupation of the accused, Ram Narain. On behalf of the prosecution side the learned Government Advocate has urged that the house from which the stolen barrel of a gun was recovered was in the possession of petitioner and it was for the petitioner to explain how that article could have come there without his knowledge. Even though the house was occupied by the husband and the wife together, yet the house belonged to the husband and the possession should be presumed to be of the husband and not of the wife and the husband was, therefore, rightly held to be in possession of the stolen articles by the courts below. A number of authorities have been cited on behalf of both the sides to explain the position in law of the recovery of an article from a house in occupation of more persons than one The first case that has been referred to on this point by the learned counsel of the petitioner is Empress vs. Malhari (l ). In that case the stolen property was found concealed in a loft in the house of the accused. The learned Judges referred to a passage in a book by Mr. Best on Evidence, sec. 212, page 294 (fifth edition) which is as follows : - "but in order to raise this presumption legitimately the possession of the stolen property should be exclusive as well as recent. Finding it on the person of the accused for instance or a in a looked-up house or room or in a box of which he kept the key, would be a fair ground for calling on him for his defence; but if the articles stolen were only found lying in a house or room in which he lived jointly with others equally capable with himself of having committed the theft, or in an open box to which others had access, no definite presumption of his guilt could be made. An exception has been said to exist where the accused is the occupier of the house in which the stolen property is found, who, it is argued, must be presumed to have such control over it as to prevent anything coming in or being taken out without his sanction. As a foundation for civil responsibility this reasoning may be : correct; but to conclude, the master of a house guilty of felony, on the double presumption, first, that the stolen goods found in the house were placed there by him or with his connivance; and, secondly, supposing they even were, that he was the thief who stole them, there being no corroborating circumstances, is certainly treading on the very verge of artificial conviction. " The learned Judges held that as the accused had a grown-up brother living in his house during his absence, besides several other relatives, the presumption that the accused and not one of these persons placed the stolen property where it was found was so week that the attention of the jury might well have been directed to that point. The conviction of the accused under sec. 411 I. P. C. was, therefore, held to be not maintainable. The principles laid down in that case were followed in A. R. Rajalingam vs. Emperor (2) wherein it was held that "for raising a presumption under sec. 114, Illus. (a) Indian Evidence Act there must be possession by the person against whom it is raised, of recently stolen goods. But mere physical relation arising from the possession of the object is insufficient to amount to possession which connotes control over the object possessed and the possession of the stolen property should be exclusive as well as recent". In Ram Charan vs. Emperor (3) the term 'possession' has been discussed and it has been observed that "possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and can exercise it. A person cannot be said to be in possession of a thing unless it is shown by evidence that he had dominion over it and knew that he had it. The mere fact that a thing is found in a house occupied by a person in common with others or at a place in the house which is as much accessible to others as to him is no proof that he was in possession of it. " In that case the conviction of the accused under sec. 411 I. P. C. was set aside on the ground that the recovery of stolen article from a house in the occupation of the accused along with others was not sufficient to raise a presumption against him under sec. 114 Illus. (a) of the Indian Evidence Act. It has been further observed that though it is difficult for the prosecution to be in possession of the circumstances relating to the presence of the stolen article in the house of an accused person, yet such a difficulty would not absolve the prosecution from proving that such an article was in the exclusive possession of the accused. In Jay Mahto and others vs. Emperor (4), it was similarly observed that "the mere fact that a thing is found in a house occupied by a person in common with others is no proof that he was in possession of it. To bring it home to him some additional circumstances ougth to be established, connecting the stolen property with the accused". In that case a stolen buffalo was recovered from a compound of a house occupied by a father and a son and it could not be shown whether the son or the father had put the buffalo there. The accused was not held guilty for an offence under sec. 411 I. P. C. under these circumstances. Similarly, in Punia Mallah and others vs. Emperor (5) the stolen property was recovered from a house occupied by father and son and no circumstances could be proved connecting the stolen property with either one of them. No presumption of guilt was drawn against anyone of them in respect of sec. 411 I. P. C. In re Ramaswami and another (6) and Chavadappa Pujori and others vs. Emperor (7) which have been referred to by the learned counsel of the petitioner enunciate the same principles as have been dealt with in the cases already referred to above, and they need not be discussed further. In re Marimuthu Kavandan (8) the wife produced certain property from the house in the occupation of husband and it was held that no presumption could be drawn against the husband so as to hold him liable for an offence under sec. 411 I. P. C. In Indu Bhushan Pal vs. Emperor (9) the stolen property was recovered from a room in joint possession of several persons and it was held that "the court should not ignore the reasonable possibility of other persons introducing stolen article in the house in raising a presumption of guilt against the accused under sec. 411 I. P. C. " Mr. Ramavtar has placed his reliance on three cases Sumatibai Wasudeo Bachuwar vs. Emperor (10), Wazir vs. Emperor (11) and Bishna vs. Emperor (12 ). The first case was under the Defence of Indian Act, Certain prejudicial documents were recovered from a box in the house of the accused The key of the box was with the wife of the accused who gave it to the police at the time of search. Both husband and wife were convicted for keeping in possession the prejudicial documents which was an offence under the Defence of India Act. The husband though he filed an appeal did not press. The wife went in appeal but her appeal was dismissed. She then went in revision to the High Court and it was argued on her behalf that she could not be considered to be in possession of the prejudicial documents merely because the key of the box had been handed over to her by the husband. It was observed accepting the plea of the wife that she could not be regarded to be in possession of the prejudicial documents merely because the key of the box containing the documents had been handed over to her by her husband or because she was literate and there were some documents addressed to her. It was observed that the husband who was in the occupation of the house should be deemed to be in the occupation of the prejudicial documents unless he has shown to be a mere appendix to his wife which was not the case there. In the second case opium was recovered from the house of the accused and both husband and wife were challaned for keeping in possession the opium. From the recovery of opium from the house of the accused it was held that the husband alone could be held liable and the wife could not be regarded to be in possession of the opium simply because opium was found in the house in possession of her husband. In the third case certain contraband liquor and apparatus of manufacturing it were recovered from the house occupied by the husband and wife. It was held that husband alone could be held responsible for passing contraband liquor and the apparatus of manufacturing it and it was not proper to hold the wife liable. It is urged on the strength of these ruling that as the ownership of the house from which the stolen property was recovered vested in the accused, he alone should be held responsible for keeping in his possession the stolen property and he cannot escape his liability merely because the premises were occupied by him together with his wife. It is not dispute that the house from which stolen property was recovered by the police belongs to the accused and was in his occupation along with his wife. Ordinarily a presumption can be raised from the exclusive possession and occupation of a house that an article found therein was introduced there by the person in its occupation. The difficulty, however, is created when the house is in the occupation of a person along with others who are equally capable of introducing the stolen artical there. In such a case unless some other circumstances connecting the accused with the stolen article are found to exit, it will be difficult to draw a presumption against the accused solely because he is the owner of the house or the head of a family. The constructive civil liability may, however,be created by such possession but in order to hold a person criminally liable it is the duty of the prosecution to show that the accused was in possession of such article. Where there is a reasonable possibility of other occupants of the premises to introduce stolen article in the house it would not be fair to draw a presumption against the held of the family under sec. 114 illus (a) of the Indian Evidence Act, The cases referred to by the learned Government Advocate are distinguishable on this point. In Sumatibai Wasudeo Bachuwar vs. Emperor (10) the husband did not disown his liability relating to the possession of the prejudicial documents and the court proceeded to decide about the liability of the wife on the assumption that the husband was primarily responsible and the husband did not stress his case about his possession of the prejudicial docu-ments. In the next Peshawar case the occupation of the house was with the husband and the wife was shown to be living in it along with the husband. There was nothing to connect the wife with the presence of the opium in the house and it was held that the wife could not be held liable for the possession of opium. The third case is about the recovery of liquor and the apparatus of manufacturing it found in the house of the husband who was living along with his wife in the premises. Such articles obviously would not have been found in the house without the knowledge and sanction of the husband who was held responsible for keeping them. The wife who was an appendix to her husband could not be regarded to have dominion over the goods as she was herself in a subsidiary position in the house. In order to affix criminal reponsibility under sec. 411 I. P. C. against a person it should be clearly established that he received or retained the stolen articles knowing them to be stolen. An inference of guilt can be drawn from the fact of exclusive possession of stolen articles or from the presence of such articles in the premises in exclusive possession of such person. But where the premises are not in exclusive possession it is difficult to regard articles recovered from such premises to be in possession of a person who is jointly in their occupation. Similarly, where there is a reasonable possibility of some other person introducing such articles in a house in the occupation of a person without his knowledge no responsibility can be affixed on the person in occupation of the premises. In the present case from the statement of the Asst. S. I. , Devi Shanker, it appears that there are a number of passages for entry into the house of the accused and at the time of search he was made to keep outside the house and a barrel of a gun was brought out of the house by the person who took the search. It is not made clear as to from which particular place this stolen article was found and the manner in which it was found lying in the house. It is difficult, therefore, to say whether the presence of the barrel of a gun in the house was with or without the knowledge of the accused. The learned counsel of the accused has alleged that the relationship of the wife with the husband is not very happy and she has subsequently deserted the husband. She also tried to help the police against the husband by producing stolen golden ear-rings a day after he was arrested. These facts, however, have not been properly recorded but the fact remains that she was also living in the same house along with her husband and a reasonable possibility of the stolen article being introduced by her cannot be lost sight of Had the prosecution given some detailed circumstances about the manner of the recovery of the stolen article and the place from where it was recovered the matter would have become more clear. The case, under these circumstances cannot be free from doubt. The golden ear-rings which were produced by the wife of the accused cannot be connected with the accused in any manner. In her statement the wife has not said anything about the accused putting the ear-rings in the house of keeping them in his possession. She has simply said that she came across the ear-rings while she was making a search of her own house in order to lay her hands on her own ear-rings for purchasings things of her household requirements. This statement of the wife does not connect the accused with the ear-rings and no adverse inference can be drawn against the accused on account of the recovery of the stolen ear-rings. No presumption about theft can be drawn when the possession of the stolen property itself is not clear. This revision is allowed and the conviction of Ram Narain under sec. 457 I P. C. is set aside. He is on bail and need not surrender to it. . ;