1. This is a revision against the appellate judgment of the Additional Sessions Judge of Cuttack, maintaining the conviction of the petitioner under Section 411, I. P. C., and the sentence of six months rigorous imprisonment passed by a First Class Magistrate of Kendrapara,
2. The petitioner ana three other persons were sent up for trial for offences under Sections 457, 380 and 411, I. P. C., for having committed burglary and theft in the house of one Karunakar (P.W. 1) on the night of the 2nd March, 1954, during which a box was broken open and jewellery cash and other articles were taken away by the culprits. During the course of police investigation, some stolen ornaments were found concealed under the thatch of the cow-shed and some-other stolen ornaments were found burried in a pit in the petitioner's bari. The petitioner took the police to the place of concealment and brought Out the stolen articles, but there was evidence to show that the petitioner was not the, Kartha of his family, his father Baishnab Naik (D.W. 1) aged 57 years being alive and living in the house No other evidence to show that the petitioner was in exclusive possession either of the cow-shed or of bari from where the stolen property was recovered was adduced in the case.
3. The charges under Sections 457 and 380, I. P. C., failed as there was practically no evidence to identify the culprits, but both the Courts have held that the charge under Section 411, I, P. C.. was established against the petitioner inasmuch as the stolen properties were recovered from his cow-shed and bari and it was the petitioner who broughtthem out and produced them before the Police. The learned appellate Court felt some difficulty with regard to the petitioner's exclusive possession of the house and bari as his father, as the Kartha of the family, was alive, but he thought that the conduct of the petitioner in bringing out the ornaments from their places of concealment and handing them over to the S. I. of Police would show that he was in exclusive possession of the same.
4. Mr. Sahu challenged the legality of the conviction urging that the entire evidence of prosecution, even if believed, was consistent with the alternative theory that some other person concealed the article in the house and bari of the petitioner, and the petitioner was aware of the places of concealment but was not in possession of the same. Hence, he contended that the question of giving a reasonable explanation to account for his possession of the property, as required by Illustration (a) to Section 114 of the Indian Evidence Act, did not arise.
5. Where stolen property is found in a house belonging to a Hindu Joint family consisting of some male members, the question as to which member of the family should be deemed to be in possession of the property has been the subject-matter of several decisions. Pr'ma facie, the Kartha may be deemed t6 be in possession but this will not follow as an invariable rule. aS early as 1893, in Queen Empress v. Sangam Lal, ILR 15 All 129 (A), it was pointed that where it was sought to establish that possession and control were withsome members of the family, other than the managing member, there must be clear evidence of that fact and that mere recovery from the house occupied by the joint family would not suffice. In Sohan Singh v. Emperor, AIR 1930 Lah, 91 (B), it was further observed that from the mere fact that a person pointed out the place from where the stolen article was concealed, it did not necessarily follow that he was in possession of the same, especially when the place of concealment was a joint family house in the occupation of several members.
This question was discussed at some length in a decision of the Calcutta High Court reported in Dhalu Mridha v. Emperor, ILR (1946) 2 Cal 619 (C), where it was pointed out that possession cannot be found against a junior member of a joint family from the mere fact that stolen property was recovered from the house in his occupationand that he pointed out the place of its concealment. Proof of acts of appropriation or acts indicating exclusive control on his part was requiredfor the purpose of holding that he was in possession of the same. Following this principle, theirLordships of the Calcutta High Court acquitted aboy aged 18 years old, who was living in the housewith his father and who pointed out to the Police,during search, the place of concealment of someof the properties stolen during the commission ofdacoity.
The only distinction between the Calcutta case and the present case is as the age of the accused. There the age of junior member was 18 years whereas in the present case the petitioner is 33 years old. But in both cases the house was in occupation of a joint family consisting of father and son, and the son had pointedOut the place or concealment to the Police duringsearch. But I do not think the difference in agemakes any difference so far as the legal positionis concerned, and in the absence of any furtherevidence it cannot be held that the petitioner wasin exclusive control of the cow-shed or of the barso as to attribute possession of the stolen propertyto him.
6. I may also refer to a recent decision of the Rajasthan High Court reported in Dasu Ram v. State, AIR 1952, Raj 20 (D), where, on facts similar to those of the present case, it was held that possession of stolen property could not be at tributed to a junior member of the family.
7. Mr. Sahu has also relied on a recent decision of the Supreme Court, reported in Trimbak (sic) State of Madhya Pradesh, AIR 1954 SC 39 (E) (sic) in support of the argument that mere recovery (sic) stolen property from a place accessible to several persons, even though the recovery might nave been the result of the conduct of the accused in pointing out the place to the Police, would not suffice to show that he was in possession. That case may be distinguished on the ground that the places from where the articles were recovered were upon fields which did not belong to the accused persons; whereas in the present case the bari and the cow-shed admittedly belonged to the joint family consisting of the petitioner and his father.
However, that decision is of some help in the present case inasmuch as it clearly shows (sic) from the mere fact that the place where the (sic) len articles were concealed was pointed out by (sic) accused, one cannot infer that he was in possession of the same and that his conduct was consistent with the alternative theory that he had knowledge only about the place of concealment of the property. Hence, the mere failure of the petitioner to explain how he came to know about the Place of concealment of the ornaments, will not justify a Court in drawing an-inference against him on the question of possession.
8. I would, therefore, hold that the charge under Section 411, I. P. C., has not been brought home against the petitioner. His conviction and sentence are therefore set aside and he is acquitted.
9. The learned Additional Sessions Judge directed that the currency notes recovered from the house of the petitioner and his father, should be kept in the custody of the trial Court for a period Of two years during which any member of the Petitioner's family may establish his claim to the same in a competent Court of law. An order of this type should not be passed in a criminal case, where though the articles were recovered from the house of the petitioner and his father, they have not been proved to be stolen property. In such circumstances, the Currency notes should be returned to the persons from whom they were recovered. I would therefore set aside that portion of the Sessions Judge's order relating to the disposal of the currency notes and direct that they should be returned to the petitioner's father (D.W. 1) Baishnab Naik (D.W. 1).