Udho Singh vs Emperor

Varma, J.—The petitioner Udho Singh has been convicted u/s 411, Penal Code and sentenced to four months'' rigorous imprisonment. The rule in this case was issued by Shearer J., on 3rd July 1941.

Udho was tried along with Ramkishun Dusadh and Mt. Ahlo. Ram Ramkishun though convicted has not moved this Court or the lower appellate Court and Mt. Ahlo, who is Udho''s mother, has been acquitted. On 10th January 1941, there was a theft in the house of one Benarsi Lai who lodged a first information at the police station Teghra. Although he mentioned the articles that were stolen from his house, he did not mention the name of any accused. The assistant Sub-Inspector when he came up for investigation was supplied with a supplementary list of stolen articles, Ex. 4. Exhibit 5 is the search list of the articles recovered from the house of Ramkishun Dusadh and Ex. 6 is the search list of articles recovered from a house belonging to Udho Singh. The articles recovered from the house of Udho Singh are Exs. 7 to 22 consisting of the upper part of a grinding mill and 18 pieces of saris and articles of different colour. These articles were found behind a granary on the eastern osara of an east facing house which belongs to Udho Singh. That these articles that were recovered belong to Benarsi Lal admits of no doubt.

In fact they were recovered from behind the granary in a dilapidated house of Udho Singh. The whole question to decide is whether it could be held that they were recovered from the possession of Udho Singh and that Udho Singh knew that those things were there.

The lower appellate Court has found that the house has not been abandoned; that Udho Singh lives in a house only 4 or 5 ''laggas from the house where the property was recovered and from this it is concluded that the house was used by Udho Singh for miscellaneous purposes or for the purpose of keeping cattle and cow-dung as mentioned by D. W. 1. The learned Judge also relies upon the fact that although there are several houses near about, the occupiers of those houses have not been mentioned as enemies of Udho Singh. It may be mentioned in passing that Udho Singh was not present at the time of search and the search took place in presence of his mother Mt. Ahlo.

Before proceeding any further I should like to give a description of the house as given by the assistant Sub-Inspector of Police. He says that the houses were not abandoned and that Udho''s mother was present at the search. He says that there is a compound wall all round the house and that he did not notice that the house of Udho was damaged. But P.W. 5 (Suba Lal) who is a resident of village Mahna says that the accused Udho

has two houses facing south. He has a tatti house beyond the chahar-diwali. The southern side wall of the house is fallen. This is after the third house. Two of the houses are intact. There are only two rooms. The third room is in a dilapidated condition and there is no chappar over it. The two houses face southwards. I cannot say from which room the articles were removed. The articles were found on a kothi. The chahar-diwali towards the southern side is damaged to some extent. The chahar-diwali towards east and north are intact. There is no chahar-diwali towards north... The articles were reoovered from the osara and not from the room of Udho Singh.

Looking at these pieces of evidence it is apparent that the house was a dilapidated one and although it has a compound wall there is no compound wall towards the north and one of the southern sides was damaged. The articles were recovered from top of a kothi. There is no evidence to show that it was Udho Singh who stole the articles.

From the circumstances the possibility of somebody putting these articles there either to get rid of them or to falsely implicate Udho Singh is not excluded. Udho Singh is said to be a substantial man.

In Sharafat v. Emperor AIR 1920 Pat. 224 it was held that before a conviction can be sustained u/s 411 of the Penal Code, the exclusive and conscious possession of the stolen articles must be brought home to the accused.

In the circumstances I am of opinion that Udho Singh is entitled to the benefit of doubt and the conviction and sentence passed on him should be set aside and he should be acquitted.