JUDGMENT Mohd. Hamid Hussain, J. - Applicants Munshi and Nabi Alam have preferred this revision against their conviction under section 411 Indian Penal Code and the sentence of 15 months' R. I. awarded to each of them. 2. A theft was committed in the house of one Saif Ullah Khan while he was away from his house. A report of the theft was lodged on August 11, 1967 by Saif Ullah Khan's servant Munni Lal. During the investigation articles suspected to be stolen were recovered from the house of Munsi who at the time of search was away but his wife Smt. Sukhrani was present and she gave the key of the lock of the room from which the suspected articles were recovered Applicant Nabi Alam was arrested while moving in a suspicious circumstances by S.I., B.P. Singh and on search of his person at the spot of arrest a country made pistol with two live cartridges was recovered in the presence of witnesses. A recovery memo was prepared at the spot. On being interrogated Nabi Alam disclosed to the S.I. that there were some stolen articles at his house which he could point out. Acting on this information Nabi Alam was taken to his house. In the presence of the police party and the public witnesses Ravi Nandan Lal (P.W. 3) Nadir All (P.W. 4) and Babu not examined, applicant Nabi Alam took out a key from the folds of his Dhoti and with that key op. tied the lock of his Kotha and from inside that Kotha some suspected stolen articles were recovered and a recovery memo was prepared at the spot. 3. The recovered articles from the houses of Munshi and Nabi Alam were put up in the test identification held in the court of Sri J.P. Singh S.D.M., Pilibbit. Safiullah Khan whose house had been burgled, correctly identified the recovered articles which consisted of utensils etc Accordingly the two applicants as well as Smt. Sukhrani wife of applicant Munshi were prosecuted for offences under sections 454, 380 and 411 Indian Penal Code. 4. The accused pleaded not guilty and denied the recovery as alleged by the prosecution. Angnoo Lal was also examined in defence to depose that accused Munshi resided jointly with his brother and wife. He also stated that accused Nabi Alam had three brothers and was living jointly. 5. 4. The accused pleaded not guilty and denied the recovery as alleged by the prosecution. Angnoo Lal was also examined in defence to depose that accused Munshi resided jointly with his brother and wife. He also stated that accused Nabi Alam had three brothers and was living jointly. 5. The prosecution in support of the case examined a number of witnesses. 6. On a consideration of the evidence led by the prosecution as well as the defence, the trial court found the applicants as well as Smt. Sukhrani guilty under section 411 Indian Penal Code and each of them were sentenced to 15 months' R.I. In appeal the conviction of the two applicants as well as Smt. Sukhrani were maintained but the appellate court set aside the substantive sentence of imprisonment of Smt. Sukhrani and substituted it by a fine of Rs. 1001-. Smt. Sukhrani has not come up in revision against that appellate order. 7. On behalf of applicant Munshi it has been contended by Sri S.S. Alam, learned counsel, that the prosecution evidence is that applicant Munshi was not present at his house when search of his house was taken and the articles were recovered and since applicant Munshi's wife Smt. Sukhrani who was present at the house and had been convicted under section 411 I.P.C. for the possession of those stolen articles, the conviction of the applicant Munshi cannot be maintained. In support of this contention the learned counsel has placed reliance on a decision of this Court in the case, Harnandan v. State, 1971 ACR 393 wherein Hon'ble Oak2 C. J. held that the circumstance that the wife was arrested and figured as an accused for the recovery of the articles, it cannot be said that the articles were recovered from the possession of the husband who happened to be absent at the time of the recovery. The facts of the instant case are, more or less, similar to the facts of the case relied upon by the learned counsel. 8. A similar view was expressed in the case Dharma Singh Mangal Singh v. State, AIR 1961 Punj. 30. In this case Bedi, J. after considering different decisions of various High Courts, held that if the incriminating articles were recovered from a box the key of which was supplied by the wife the husband could not be held liable for being in possession of incriminating articles. 30. In this case Bedi, J. after considering different decisions of various High Courts, held that if the incriminating articles were recovered from a box the key of which was supplied by the wife the husband could not be held liable for being in possession of incriminating articles. The wife Smt. Sukhrani having already been convicted and sentenced for the articles recovered from the house, her husband namely, applicant Munshi, cannot be held liable to be in possession of the articles, without further evidence that the recovered articles had been brought in the house by applicant Munshi. The applicant Munshi is therefore, entitled to be acquitted. 9. As regards applicant Nabi Alam, it is contended by the learned counsel firstly, that according to the prosecution case Nabi Alam had been arrested moving in a suspicious circumstance and on a search of his person a country-made pistol and two live cartridges were recovered and for this he was prosecuted under section 25 of the Arms Act but he was acquitted by the appellate court. In support of this facts the learned counsel filed a certified copy of the judgment in appeal of the learned Session judge. On the basis of acquittal of Nabi Alam in the case under section 25 Arms Act, it is contended that since the recovery of the pistol and cartridges were disbelieved by the appellate court in another trial, therefore, the recovery of the stolen articles in the instant case should also be disbelieved. Further, it is contended that at the time of arrest the key was also recovered along with the pistol and cartridges. This is not borne out from the record of this case. Further, it is contended that at the time of arrest the key was also recovered along with the pistol and cartridges. This is not borne out from the record of this case. The evidence in this case of the two public recovery witnesses, namely Ravi Nandan Lal (P.W. 3) and Nadir All (P.W. 4) as well as of S.I., B.P. Singh (P.W. 11) is that at the place of his arrest Nabi Alam on interrogation offered to take the police to his house to point out the stolen property and acting on this information Sri B.P. Singh and the witnesses went along with Nabi Alain to his house and on reaching his house Nabi Alam took out the kev from the folds of his Dhoti and with that key opened the lock of the Kotha and from inside the Kotha articles suspected to be stolen property were recovered and recovery memo was prepared and signed by the S. I. It may be that the key was in the folds of Dhoti of Nabi Alam at the time of his arrest at the spot where the recovery of the pistol and the cartridges was alleged to have been made, but since the key was nothing incrimina. ting that could not be an article which could be noticed or taken by police. 10. Secondly the learned counsel has laid great stress on the fact that the house of Nabi Alam was not exclusively occupied by Nabi Alam but also by his other two brothers. In support of this contention the learned counsel has referred to the judgment of the trial court wherein there is mention about Munni Lal (P.W. 2) having stated that Nabi Alam was living with his brother Chhotey and Angad. From this statement it is asserted by the learned counsel that the house being in joint possession, the liability for the recovery of the articles could not be fixed on the applicant. In support of this contention the learned counsel has placed reliance on the case of Baladin v. State, 1964 AWR 320. From this statement it is asserted by the learned counsel that the house being in joint possession, the liability for the recovery of the articles could not be fixed on the applicant. In support of this contention the learned counsel has placed reliance on the case of Baladin v. State, 1964 AWR 320. In this case the Division Bench considered a number of earlier cases of this Court and made the following observations : "Where a person is charged with a criminal offence the prosecution has to prove mess rea or guilty knowledge before a conviction can be founded on the basis of mere recovery of an incriminating article from inside the house. The fact whether an article is in possession of an individual member of the family or whether it is in possession of all the members residing in the house is a question of fact and has to be decided not by arising presumptions by reference to the actual knowledge of the person or persons concerned as to the presence of the articles inside the house. It is also incumbent on the prosecution to prove that the incriminating article was in the control and keeping of a member or members of the family in the sense that they could deal with it in any manner they liked. The mere recovery of an incriminating article from a house in the occupation of more than one person would not necessarily import their possession or control over it." 11. In the case cited the f Lets were somewhat different in the sense that the articles in that case were recovered from inside the Kotha which was open and accessible to all. In the case cited the f Lets were somewhat different in the sense that the articles in that case were recovered from inside the Kotha which was open and accessible to all. The exact words used by the Division Bench in para 8 are : "In the present case the applicants were not present in the house when the incriminating articles were recovered from inside a Kotha which was open and accessible to all." In the instant case the consistent evidence of the two public recovery witnesses as well as of the S.I., B.P. Singh (P.W. 11) is that Nabi Alam on being interrogated at the spot of his arrest offered to point out the stolen articles from his house and in that connection took the recovery witnesses and the S.I. to his house and on getting inside the house he took out a key from the folds of his Dhoti and with that key he opened the lock of the Kotha and from inside that Kotha incriminating articles were recovered. There is no reason why the finding of the two courts below about the recovery in the manner as given out by the recovery witnesses should not be accepted. The articles were recovered at the instance of applicant Nabi Alam. 12. Another argument advanced by the learned counsel is that the appellate court failed to consider the evidence of the defence witness Angnoo Lal who deposed that the applicant Munshi resided jointly with his brothers and applicant Nabi Alam also resided along with his three brothers. The trial court has given sufficient reasons for holding this defence witness to be reliable. Absence of a reference to the evidence of this defence witness in the appellate court's judgment cannot be a ground to set it aside in revision. May be, that the counsel for the applicant did not press before the lower appellate court the evidence of the defence witness knowing full well that it could not cut any ice. 13. Having heard the learned counsel at length I see no force in any of his submissions as regards Nabi Alam. 14. The last submission made by the learned counsel is on the question of sentence. In the circumstances of the case there is not justifiable reason for any reduction in the sentence awarded to Nabi Alum. 15. The result is that the revision of applicant Munshi is allowed. 14. The last submission made by the learned counsel is on the question of sentence. In the circumstances of the case there is not justifiable reason for any reduction in the sentence awarded to Nabi Alum. 15. The result is that the revision of applicant Munshi is allowed. His conviction and sentence are set aside. He is acquitted of the charge for which he was convicted. The revision of applicant Nabi Alam is rejected. He is on bail. Be shall surrender forthwith to serve out his sentence.