GOGA Vs. STATE

JUDGEMENT

(1.) THIS is a criminal revision against (the conviction and sentence imposed on Goga and Dhani Ram, the petitioners before me. They were tried under Section 457 of the Penal Code before the Munsiff Magistrate first class at Jammu. The trial Magistrate acquitted them of the offence under Section 457 but convicted them under Section 411 of the Penal Code. Goga was sentenced to rigorous imprisonment for 20 days and to a fine of Rs. 25/-; Dhani Ram to four months rigorous imprisonment and to a fine of Rs. 75/ -. An appeal preferred by the accused to the Addl. Sessions Judge at Jammu proved unsuccessful. The accused persons have, therefore, come up in revision to this Court.

(2.) THE learned Counsel for the petitioners has raised two points of law in this revision petition. The first is that the list of the stolen articles has not been produced or proved by the prosecution. The First Information Report dated 28th Chet 2010 given by Ganga Ram, complainant states that the list of the stolen articles will be famished by him when the police goes to his house which is the scene of occurrence. The Police Officer went to the house of the complainant the next day. i. e. 29th Chet 2010. The complainant in his evidence before the trial court has stated that he handed over to the police officer a list of the stolen articles, as soon as he came to his house. But this list has not seen the light of day, No explanation is forthcoming as to how this list disappeared. The result is that there is nothing on record to show that the complainant! had at a sufficiently early date informed the police that the articles recovered from the accused persons were stolen from his house. The petitioners' learned Counsel has strenuously urged that in the absence of a list containing the items of the stolen articles and their description, credence cannot be given to the prosecution story that the articles re-covered from the accused persons were those which belonged to the complainant and were stolen from his house. This argument is not without force. If. a list of the stolen articles is not furnished at the ear-liest possible point of time by the person who com-plains that his articles have been stolen, it would be possible for an unscrupulous complainant to try: to perjure that a particular valuable article seized by the police from some suspected person belongs to him. It is not impossible to conceive that even witnesses may be suborned by a complainant in certain circumstances to get at valuable article seized by the police from certain persons. The importance of a list of stolen articles cannot therefore be minimized. It is very unfortunate that the prosecution has not made proper use of the list in the court.

(3.) THE learned Advocate General appearing for the State has not been able to state what happened to the list furnished by Ganga Ram. He does not, however, dispute the fact that Ganga Ram did furnish a list of the stolen articles. He has however attempted to show that the nonproduction of the list cannot be taken serious notice of, because in any event that list fell within the mischief of Section 162 of the Code of Criminal Procedure and could not therefore be used as evidence to corroborate the prosecution story. This argument which I shall presently examine, does not to the least explain the utter disappearance of this) list. On the other hand, I think this argument was trotted out in order to minimize the gravity of the circumstance that the list of the stolen article given by the complainant to the police officer is not to be seen anywhere in the record.