KANIK LAL THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This revision application has been directed against the judgment and order dated 11-12-1998 passed by 7th Additional Sessions Judge, Begusarai in Criminal Appeal No. 37 of 1996, whereby and whereunder he dismissed the appeal preferred by the petitioner against the judgment of conviction and sentence passed by Sri B. N. Singh, Judl. Magistrate, Begusarai in G. R. Case No. 245 of 1989, whereby the learned Magistrate convicted the petitioner under Section 411 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of two years.

(2.) According to the prosecution case one Bishswanth Singh, Junior Engineer lodged a written report that on 3-2-89 some unknown persons committed theft of Aluminium wire valued at Rs. 5500.00 on the basis of which Ballia P.S. Case No. 79 of 1989 was registered under Section 379 of the Indian Penal Code against unknown. In course of the investigation the petitioner is alleged to have confessed his guilt and on his disclosure two bundles of Aluminium wire were recovered by the I. O. in presence of the witnesses and the I.O. submitted chargesheet against the petitioner under Sections 379/411 of the I.P.C. on the basis of which cognizance was taken and the petitioner was put on trial. The learned trial Court acquitted the petitioner of the charge under Section 379 of the I.P.C. but convicted him for the offence under Section 411 of the I.P.C. and sentenced him to undergo rigorous imprisonment for two years. The appeal preferred by the petitioner was dismissed and this revision application has been preferred against the appellate Court's order.

(3.) The learned counsel appearing for the petitioner submitted that written report which was the basis for lodging the F.I.R. was not proved by the prosecution during the trial and so there was no prosecution case before the trial Court and the petitioner is entitled to his acquittal on this score alone. It appears that the formal F.I.R. (Ext. 2) as also the endorsement of the I.O. (Ext. 3) on the written report had been proved by the prosecution during the trial. The formal F.I.R. discloses that a case against unknown was instituted under Section 379 of the I.P.C. for the alleged theft of Aluminium wire from the open space. It further appears from the endorsement that the case was ordered to be investigated by A.S.I. D. Dwivedi. It is admitted position that written report submitted by Bishwanath Singh to the officer Incharge of Ballia P.S. was not proved. It may be stated in this connection that the F.I.R. is not a substantive piece of evidence. In this case the formal F.I.R. has been duly proved and at least it indicates that for the alleged theft of Aluminium wire a case under Section 379 of the I.P.C. was instituted against unknown and it also appears from the endorsement (Ext. 3) that the investigation was taken up. Therefore, even if the written report lodged by Bishwanath Singh has not been duly proved the prosecution case will not fail on that score alone and the Court has to consider the substantive evidence which has been adduced by the prosecution. The prosecution has led evidence as deposed by the P.Ws. and the Court will certainly consider the evidence adduced by the P.Ws. which is substantive in nature. It appears that both the Courts below have considered the evidence led by the prosecution and there is concurrent finding of facts by both the Courts below.