J.S. Bedi, J.
1. Shri Yaswant Kumar Jain, Magistrate 1st Class, Batala, vide his order dated the 29th December, 1959, convicted the petitioner under Section 411, Indian Penal Code, and sentenced him to two years' rigorous imprisonment, Surjit Kaur, wife of the petitioner, who was also tried along with the petitioner, was, however, acquitted. The petitioner felt aggrieved and filed an appeal, and the learned Additional Sessions Judge, Gurdaspur, though maintained the conviction but reduced the sentence to one year's rigorous imprisonment, vide his order dated the 29th January 1960. The petitioner still feels dissatisfied and has approached this Court in revision.
2. The story for the prosecution briefly runs as under. On the night between 21st and 22nd May, 1958 a theft in the house jointly occupied by Manmohan Kaur (P.W. 1) and Satvant Kaur (P.W. 16) was committed and a number of articles were stolen. A report of that theft was made on the next morning at 8.30 a.m. Another theft in the house of Ishar Singh (P.W. 10) took place on the night between 18th and 19th June, 1958 in which also a number of articles were stolen. Report of this theft was also lodged. Again on the 12th May a theft in the house of Gian Singh (P.W. 19) was committed and a number of articles were stolen therefrom.
Before that on the night between 23rd and 24th September 1957 a theft took place in the house of Fauja Singh (P.W. 11) wherefrom certain articles were removed. A report was duly lodged at the police station. Still another theft took place in the house of Mayya Singh (P.W. 5) and some clothes were stolen. The details of the stolen articles in all the thefts are given in the judgment of the Court below.
3. On the 25th June 1958 on receipt of information Mann Singh A.S.I. went to the house of the petitioner. The petitioner was not present, but his wife was there. She produced the key of a box lying in the house. The box was opened in the presence of Buta Singh, Iqbal Singh and Ghasita Singh P.Ws., and a number of articles were recovered from it. These were later on identified by the various P.Ws. as the stolen property. As a result of the above recovery, case against the petitioner and his wife was registered, and after due investigation they were sent up for trial with the result mentioned above.
4. The petitioner denied the allegations against him and attributed the case due to enmity with Labh Singh and Buta Singh P.Ws.
5. The facts in this case are not challenged. The only point which required determination is whether under these circumstances the petitioner can be convicted. In my opinion the answer to the above should be in the negative. There is nothing on the record to show as to when the petitioner left his house. The incriminating articles in question were recovered from a box the key of which was supplied by the petitioner's wife. In the circumstances, can it be said that the petitioner was in possession of those incriminating articles knowing or having reason to believe that the articles in question were stolen property. As remarked above, there is nothing on the record to show as to when the petitioner left his house.
There are cases where the wife happened to associate with bad characters and from the house some incriminating articles were recovered, yet the husband could not be held responsible for the same as it was possible that the husband did not know of the presence of those incriminating articles in his house at all. This view is supported by In re Marimuthu Kavandan, AIR 1941 Mad 694, where it was held that the production of stolen property by the wife from the house in which both husband and wife were living could not warrant the conviction of the husband under Section 411. A similar view was taken in Emperor v. Santa Singh, AIR 1944 Lah 339 (FB). In Beoparia v. State of Ajmer, AIR 1955 Ajmer 10, it was held that 'where a house is occupied jointly by the husband and wife, it cannot in the absence of positive evidence be held that one is in exclusive possession. Hence, where stolen articles are produced from the house of women accused, who were living with their husbands, then the possession cannot be said to be exclusively theirs, for the purpose of Section 411, Indian Penal Code.'
In the present case the learned Additional Sessions Judge has not fully understood the provisions of Section 27, I. P. C. and on account of this misunderstanding he convicted the petitioner. Section 27, Indian Penal Code, runs as under :--
'27. When property is in the possession of a person's wife, clerk or servant, on account of that person, it is in that person's possession within the meaning of this Code'. The words 'on account of that person' are very significant. If there was any evidence to show that the incriminating articles in this case were held by the petitioner's wife on account of the petitioner, the petitioner of course would be liable, but there is nothing on the record to that effect. The theory that the head of the family or the husband is responsible for the incriminating articles recovered from the house occupied by many persons jointly has long been exploded : See AIR 1944 Lah 639 (FB).
6. The learned counsel for the State wanted some time to look up the law on the point. He was at his1 request given a day's adjournment, but today he frankly conceded that he could not support the conviction of the petitioner in this case.
7. For the reasons given above, this revision is accepted and the petitioner acquitted. He is on bail and his bail-bond stands cancelled.