KUNA KANDI Vs. THE STATE

JUDGEMENT

(1.) 8 persons were put on trial, the first seven on charges under Section 457/395, Indian Penal Code for having committed lurking house trespass and dacoity on the night of 17th March, 1964 in the house of P.Ws. 1 and 2 in village Sagadi, P.S. Kessennagar and accused No. 8 on a charge under Section 412 Indian Penal Code for having dishonestly received some of the stolen properties. The learned Additional Sessions Judge. Cuttack who tried the accused, convicted the accused No. 1 Kuna Kandi and accused No. 5 Golak Mundi under Section 395, Indian Penal Code and sentenced each of them to R.I. for three years and farther sentenced accused No. 5 to pay a fine of Rs. 500 and in default to undergo R.I. for six months more. He acquitted the other six accused persons. Accused No. 1 has preferred Cr. A. No. 72 of 1966 and accused No. 5 has preferred Cr. A. No. 163 of 1966 and both have been heard together.

(2.) ACCORDING to the prosecution a dacoity was committed at midnight on 17 -3 -1961: in the house of P.W. 1, Prafulla Kumar Jena. She and her sister -in -law, Saraswati Jena (P.W. 2) with their minor children P.W. 3, Nagendra Kumar Jena and P.W. 4, Gagan Kumar Jena and another boy resided in that house but in separate rooms adjoining one another. The husbands of P.Ws. 1 and 2 work at Calcutta. An old lady Hiramani Bewa, a neighbour was sleeping in the room of P.W. 1 to keep her company. At about midnight the ladies got up to answer call of nature and went to the front courtyard and came back. Suddenly four persons entered into the house by scaling over the wan and entered into the room of P.W. 1. They were focusing torch lights and were armed with tentas. On seeing them P.W. 1 raised an alarm and one of the miscreants pierced a tenta into her left eye brow causing bleeding injury and threatened her with assault if she made any further noise. The old lady was also silenced. Two of the, miscreants kept guard over them and the other two began removing the articles. Gold and silver ornaments kept in wooden boxes and in the Sindhuk were removed by breaking open the boxes. Cash of Rs. 600 was stolen. P.W. 1 was then taken to the other room where Saraswati (P.W. 2) was sleeping. The members of the family were kept under confinement by force, and the dacoits broke open Saraswati's boxes and removed several articles there from. On their demand the two ladies removed their earrings and handed them over to the culprits. In the course of this dacoity, P.W. 3 was also injured. Besides the four culprits who were inside the house, some others were standing outside the house. After removing the articles, they chained the door of Saraswati's room from outside, and escaped with the booty. After the culprits left, P.W. 4 removed the chain by inserting his hand through a gap in the door way and all the inmates came out, and shouted calling for help. Some of the neigh hours came to the spot, but by then the dacoits had escaped. P.W. 1 to 4 left for Kessen nagar P.S. where F.I.R. was lodged at 7 A.M. the next morning. The A.S.I. (P.W. 7) who was then in charge of the Thana, recorded the F.I.R. on the statement made by P.W. 1 The list of properties appended to the F.I.R. at pages 3 and 4 thereof was not written at the Thana, but afterwards the A.S.I. came to the house of P.W. 1 and the list was prepared after due verification of the properties that were stolen from the room of P.W. 1. This was done at about 10 A. M. on 18 -3 -1964. A supplementary list (J x. 2) of the articles stolen from the room of P.W. 2 Saraswati was prepared by the A.S.I. on the following day, that is, 18.3.1964. Investigation proceeded and in the course of investigation certain properties alleged to have been stolen from the rooms of P.Ws. 1 and 2 were recovered from the house of Golak Mundi (Accused No 5) who is Appellant in Cr.A. No. 163 of 1966. On 18.5.1964 Accused No. 1 Kuna Kandi (Appellant in Cr. A. No. 72 of 1966) was produced before Shri B.N. Jena, a First Class. Magistrate, who recorded his confession, in the course of which he stated to have taken part in the dacoity in the house of P.Ws. 1 and 2 along with his associates including Golak Mundi (Accused No. 5). The confession, so far as is relevant to this case, is to the following effect:

(3.) THAT a dacoity was committed in the house of P.Ws. 1 and 2 on the night of 17 -3 -64 has been very satisfactorily proved in this case and the correctness of this finding has also not been challenged before me. As already stated, out of the 8 accused persons put on trial, all except Accused Nos. 1 and 5 had been acquitted in the trial Court. The conviction of Accused No. 1 Kuna Kandi is based on his retracted confession coupled with the evidence of P.Ws. 2 and 3 who have identified him as one of the culprits the conviction of Accused No. 5 is based on the retracted confession of his co -accused Kuna Kandi and the recovery of some stolen articles from his house. The articles recovered from the home of Accused No. 5 are M.Os. VI, VII, VIII, XII and XIII of these M.Os. VI, VII and XIII are included in the list of properties mentioned in the F.I.R. and the other two articles, namely, M.Os. VIII and XI form part of the supplementary list Ext. 2. It is urged by the learned Counsel appearing for the Appellants that the list of properties appended to the F.I.R. and the supplementary list Ext. 2 are not admissible in evidence, because these lists were prepared by the Investigating Officer during the course of investigation and as such hit by Section 162, Code of Criminal Procedure. The A.S.I. (P.W. 7) who recorded the F.I.R. deposed that he recorded the F.I.R. (Ext. 1) at, 7 A.M. on 18 -3 -164 on the statement made by P.W. 1 Prafulla Kumari Jena. As she could not give a full list of the stolen articles only some of the items were noted in the F.I.R. in the second page thereof. But the list mentioned in the 3rd and 4th pages containing the list of other stolen articles was recorded on the information given by Prafulla Kumari Jena at her house at 10 A.M. that very day. It was elicited from him in cross -examination that immediately after he recorded the F.I.R. at the Police Station he started examining witnesses in the course of investigation of the case. The question therefore for consideration is whether the list of articles appended to the F.L.R. (Ext. 1) and the list (Ext. 2) are hit by Section 162, Code of Criminal Procedure. In support of contention that these lists are not admissible in evidence, reliance is placed on behalf of the Appellants on a decision of the Lahore High Court reported in Sucha Singh v. Emperor : A.I.R. 1932 lah. 488., where the learned Judge says that a list of stolen properties which is made and handed over to the police in the course of investigation cannot be admitted in evidence. The report does not disclose the exact point of time when that list was handed over to the police and whether by that time any progress, if at all, was made in the investigation of the case. A. Division Bench of Oudh Chief Court in a case reported in Emperor v. Narain, 32 Cri.L.J. 630 were of the view that a list of stolen property prepared in the presence of a Police Officer before the actual commencement of the investigation by the Police cannot be excluded from evidence as being statement made to a Police Officer during investigation. What happened in that case was the dacoity took place on the night of 2nd/3rd January 1930 and it was reported at the Police Station at 5 A.M. on 3rd January. A Police Officer at once went to the village and in his presence the lists of stolen properties were prepared. The learned Judges held that by the time the lists were prepared the investigation was merely in the preliminary stage and that these two lists were additions to the first report which were necessary for the proper presentation of the case by the complainant to enable the police to make a full investigation. In the circumstances they held that the lists were prepared before the investigation actually began and as such cannot be excluded from evidence as being statements made to a Police Officer during the course of investigation. A similar view was taken by a learned Single Judge of the Allahabad High Court in the case reported in Brij Lal v. Emperor, 207 IC 15. His Lordship went to the length of stating that Section 162, Code of Criminal Procedure has no reference at an to a list of stolen property and that it is not even necessary for the complainant to state in the F.I.R. that a list is being prepared and will be supplied to the Police, and that when such a list is given to the Investigating Officer within a few hours, or within a day or two if the dacoity is a serious one, it would be ridiculous to say that the list cannot become a part of the record, because the investigation has already started. In a subsequent decision of Division Bench of the Allahabad High Court report in Bhondu v. Rex, 50 Cri.L.J. 561 the question came up whether a list of stolen properties banded over to the police sometime after the F.I.R. was lodged would be hit by Section 162, Code of Criminal Procedure. Their Lordship answered the question in the following words: