1. This rule was issued unpon the District Magistrate of Hughly to show cause why the conviction of and sentence passed upon one Indu Bhusan Pal should not be set aside. Indu Bhusan Pal and one Krishna Arya were jointly tried under Section 411, Penal Code, on the charge that they at or about 14th February 1941 at Queen Street, Serampore, dishonestly received and retained a wrist-watch, a gold champa and four silver buttons knowing or having reason to believe the same to be stolen properties. The learned Magistrate found the case against Krishna Arya had not been proved. He accordingly acquitted that accused. He found the case against Indu Bhusan Pal had been satisfactorily proved. He convicted Indu Bhusan Pal under Section 411, Penal Code, and sentenced him to undergo rigorous imprisonment for four months. An appeal to the Sessions Judge of Hughly was dismissed. It has been urged before us that on the facts found by the learned Sessions Judge the guilt of the petitioner Indu Bhusan Pal was not proved beyond reasonable doubt.
2. The case for the prosecution was that on 10th February 1941 a burglary was committed in the house of one Panchanan Chatterji. On the morning of 14th February 1941 the police went to the room occupied by Indu Bhusan Pal to search the same. The room was found closed from inside. Indu Bhusan Pal was then the sole occupant. He opened the room for the police to enter. The police on search of the room found the Btolen articles mentioned in the charge, behind a picture. Indu Bhusan Pal was taken away under arrest. On the same afternoon the police again visited this room and conducted a further search. The second accused Krishna Arya was present during that search and laid claim to a trunk which was found in the room. The learned Sessions Judge considered whether the evidence on record wag sufficient to prove that the petitioner Indu Bhusan Pal was in possession of the property which was found behind the picture. The learned Judge found that Indu Bhusan Pal was in fact the sole occupant of this room. Having found that Indu Bhusan was the sole occupant he considered certain defence evidence which was offered to prove that Indu Bhusan had guests in his house in the previous night. The learned Judge came to the conclusion that the evidence that there were guests in the house in the previous night was untrue. He then proceeded to hold that Indu Bhusan was the real occupant of the room and there was no evidenoe that guests had been in his house in the previous night, and consequently that Indu Bhusan might be considered to have been in possession of the articles in the room.
3. The learned Sessions Judge seems to have overlooked the fact that it was the prosecution case that Indu Bhusan Pal and Krishna Arya were in joint possession of the room and that the finding that Krishna Arya was not the joint occupant of the room was based on the inadequacy of the prosecution evidence. It was not based really on positive evidence that Krishna Arya was not in possession. Moreover, even if it be found that Indu Bhusan Pal was the sole occupant of the room it does not necessarily follow that he must have been aware of the presence in the room of all the articles that were found therein. It was incumbent upon the learned Judge to consider the circumstances of the occupation of the room and to consider whether it was reasonably possible for other persons to introduce the articles into the room without Indu Bhusan's knowledge. The mere fact that Indu Bhusan failed to prove that he had guests in his house in the previous night is not in itself sufficient to prove that the circumstances of his possession of the house were such as to preclude the reasonable possibility of other persons introducing the stolen goods into the house. In our opinion, the actual findings of fact of the learned Sessions Judge do not justify the inference that Indu Bhusan Pal was necessarily in possession of the stolen goods. The very nature of the charge framed against Indu Bhusan Pal and Krishna Arya is in itself sufficient, to raise a grave suspicion as to Indu Bhusan's sole' possession of the articles. The result therefore is that this rule is made absolute. The conviction and the sentence passed upon Indu Bhusan Pal are set aside. He is acquitted and discharged from his bail.