SUDHANYA BAWALI Vs. EMPEROR

JUDGEMENT

(1.) A gun was found in an abandoned room of the house belonging to the accused in which they and others reside. It is a dark room under the staircase about 8 feet or 9 feet by 3 feet. One side of the room is open and leads into a passage. There is a door leading from the passage into an open yard outside. The door is on the east of the house. There is clear evidence that there is a pathway running north to south on the east of the house which is used by the neighbours. The house itself is not enclosed by any fence or wall. The door leading from the passage into the open yard outside has not got a bolt. It does not appear whether it had ever a bolt. It appears from the evidence that this room is accessible from outside, At the time of the search and before the Police entered into this room there is some evidence that this door was open, The Inspector himself is not clear whether it was open or shut at the time that he surrounded the house. The learned Sessions Judge has not been able upon the evidence to determine as to who was actually the house. The family is apparently joint and the three accused persons are all adults who, as joint members of the family, manage the affairs of the joint family and seem to exercise equal rights. The learned Judge thinks that, therefore, they must be held criminally liable. We are unable to agree with him. Quoting the words in the judgment of Jagjiban Ghose v. Emperor,2 Ind Cas 681 at p 693 : 13 CWN 861 at p 892 : 9 CLJ 663 : 10 CrLJ 125. "It is well established, and is an elementary Rule founded on common sense, that where the place in which an article is found is one to which several persons have equal right of access, it cannot be said to be Jin the possession of any one of them". That being the clear law, we are unable to uphold the conviction.

(2.) The assessors thought that some enemy of the accused put the incriminating things into the room. That there was such a possibility is clear from the evideuce. These persons who have arisen from a very humble position to a position of some affluence have enemies round about them. There is nothing at all against the character of the accused. They are not political suspects. The evidence does not show that they have any sporting instincts or that they have ever used a gun in their life. Their conduct at the time of the search led the searching officer to form an opinion that they were unconscious that a gun was in the room where it was found.