H.C.P. Tripathi, J.
1. Ram Prasad, Nathoo Lai and Badri were convicted by a Magistrate First Class under Section 380 I. P. C-and sentenced to one year's rigorous imprisonment and Rs. 20/- as fine each. In default of payment of fine, each of them was ordered to undergo rigorous imprisonment for a period of one month. Their convictions and sentences were affirmed on appeal by the learned Sessions Judge of Pilibhit. Hence they all came up in revision to this Court. The revision of Ram Prasad and Nathoo Lal was, however, dismissed summarily and their case is, therefore, not before me.
2. According to the prosecution, in the night of 17/18th October, 1961, a burglary was committed in the house of one Ram Dularey in village Bithaura Kalan in which his ornaments were stolen away. A report of the occurrence was lodged on 18-10.1961 at police station Kotwali at 2.20 in the afternoon on the basis of which a case was registered, and investiga-tion followed.
3. On 19.10-1961 applicant Badri was arrested sod his house was searched. Nothing, however, Incriminating could be found from the house. When questioned about the theft committed in the house of Ram Dularey, Badri is alleged to have taken the Sub-Inspector and the witnesses to a sugarcane field of Mulu wherefrom he took out five pieces of ornaments and handed them over to the Investigating Officer. He again took them to a pond which was full of Jalkumbhi and from there took out a packet containing certain pieces of clothes. All these articles were put in sealed covers and a recovery memo regarding the same was prepared in the presence of the witnesses. Subsequently, these recovered articles were identified by prosecution witnesses as belonging, to Ram Dularey and his family members which hap been removed during the theft committed at his house. On these facts the learned Magistrate convicted the applicants under Section 380 I. P.C. and the Sessions Judge has concurred with him.
4. learned Counsel for the applicant has argued that as the articles were recovered from an open field and from, a pond which was accessible to any member of the public, it cannot be held in law that they were in exclusive possession of the applicant or that he had kept them there. learned Counsel argues that in this view of the matter the conviction of the applicant under Section 380 I. P. C. is not sustainable,
5. This argument was raised before the learned Sessions Judge but it did not appeal to him because in his opinion
in this particular case in the absence of any explanation by the accused about the source of their knowledge pertaining to the existence of the various items of property at their hidden places, it can safely be concluded that it was the accused who had placed them there...and had control over them....
This view of the learned Sessions Judge does not appear to be correct.
6. In the case of Trimbak v. State of Madhya Pradesh : AIR1954SC39 , it was held that --
When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else hiving placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles,
The aforesaid principle of law enunciated by the Supreme Court applies with full force to the facts of the present case.
7. Here also the recoveries of ornaments and clothes had been made from places which were accessible to all and sundry and therefore the fact of their discovery in question at the instance of the applicant cannot be regarded as the conclusive proof that he was in possession of those articles or had buried them there. In this view of the matter, the conviction of the applicant cannot be sustained.
8. The revision is allowed. The conviction and sentence of the applicant are set aside. Fine, if paid by the applicant, shall be refunded to him.