LACHMINIYA THAKURAIN Vs. EMPEROR

JUDGEMENT

(1.) The appellant along with her husband Jagdeo Singh was tried for offences under Section 232 and Section 235, Indian Penal Code. Jagdeo was convicted under both sections and sentenced to seven years rigorous imprisonment. The appellant was convicted under Section 235 only, and she has now appealed from jail against that conviction and the sentence of five years rigorous imprisonment. The appellant lived with her husband and the instruments and materials for counterfeiting were found in their bed-room, where probably the counterfeiting took place. In a case of this nature where it is sought to fix responsibility upon any member of the family except the head of it, it is, as has been pointed out in Queen Empress V/s. Sangam Lal (1883) 15 All 129, necessary to prove that possession and control were with the subordinate member alone or with the subordinate member also. It is equally necessary where it is sought to make a Wife liable along with a husband with whom she is living, even if he has a concubine in the house. In the present instance the learned Magistrate has relied upon the fact that when the members of the police search party were unable to find the obverse die, the appellant pointed it out and also pointed out the crucible. On this foundation the learned Magistrate has held: that whenever accused Jagdeo Singh used to be away from his house, he used to keep the instruments and materials in question secretly, in the personal custody of accused Lachminiya in the room from which those instruments and materials were ultimately recovered in the presence of accused Lachminiya, and that she used to keep them secretly in her personal custody.

(2.) To my mind there is not sufficient foundation in the evidence for such a finding of personal custody. The mere fact that the appellant knew that certain implements and materials were in the possession of her husband and also where those implements and materials were to be found, does not necessarily indicate that she herself was in subordinate possession or in any kind of possession of them. After all the obverse die was fitted to the stamping press and the crucible was not concealed. The evidence does not appear to go further than to indicate her full knowledge of her husband's occupation. It does not establish that possession of the instruments and materials for counterfeiting coins was at all with her. Accordingly I would hold that the charge under Section 235 has not been established against the appellant and would set aside the conviction and sentence and direct that she be forthwith released. Agarwala, J.

(3.) I agree.