MAHADEO BIND Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has been convicted under Section 411 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four months.

(2.) On the night of the 12th and 13th September 1958, a theft was committed in the house of Kishun Singh (P.W. 1), and a box and some utensils including a lota were taken away by the thieves. Subsequently, the lota was recovered from the house of the petitioner and was identified both at the test Identification parade and in the Court by P. W. 1. as his lota.

(3.) The only contention urged by learned Counsel on behalf of the petitioner is that the prosecution has failed to prove that the lota was in exclusive possession of the petitioner. It was pointed out that the house from which this lota was recovered was occupied both by the petitioner and his son, and the argument advanced is that when the house was in joint possession of both father and son, the prosecution should have proved that this lota was recovered from a place which was in: exclusive possession of the petitioner. It was urged that there is no, evidence to that effect. On the other hand learned Counsel for the opposite party contended that the joint possession of the house by the father and son did not affect the prosecution case on merits and that the petitioner being the eldest member of the family, it must be presumed that he was in exclusive possession of the lota in question. Reliance was placed upon a Bench decision of this Court in Mahabir Singh v. State, AIR 1951 Pat 296; therein Shearer, J. in delivering the judgment of the Bench observed, as follows;