LAXMI NARAYAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ACCUSED Laxmi Narayan was convicted under section 379/ 75, IPC and sentenced to 2-1/2 years' rigorous imprisonment with a fine of Rs 200/- in default of payment of fine to further undergo one month's like imprisonment by the learned Chief Judicial Magistrate, Jodhpur, vide his judgment dated 29. 1. 83 and order dated February 18, 1983 He went in appeal, but his appeal was dismissed and his conviction and sentence were maintained by the learned Additional Sessions Judge (2), Jodhpur vide his judgment dated March 19, 1983. The accused has, now come in revision to this Court.

(2.) BRIEFLY stated, the prosecution case is that PW 4 Dhanraj and P. W. 5 Bulakichand were travelling in a railway train from Bikaner to Jodhpur in the night of 8. 5. 80. They had two suit-cases and other articles with them. In the early hours of 9. 5. 80, they got down at Jodhpur and went out of the compartments. After sometime when they returned, they found their two suit-cases missing. The suit-cases contained clothes and some files. At about 6. 00 A. M. on the same day (9. 5. 80) Shri Dhan Raj presented written report Ex. P. 2 to the Station House Officer, G. R. P. Station, Jodhpur. The police registered a case and proceeded with investigation. The accused was arrested in some other case. In consequence of the information furnished by him on 8. 9. 80. two stolen Saries were recovered from Kailash Shri Singh (PW 1 ). to whom he had pledged for Rs. 50/ -. The accused again gave information to the investigating officer on 20. 9 80 and in consequences of it one stolen suit-case was recovered from one Shri Mahaveer Chand Jain. The recovered articles, Viz. , the suit-case and the Saries were put to identification-test. The test-identification was conducted by PW9 Shri Mani Shanker. the then Railwav Magistrate. Bikaner. The aforesaid articles were correctly identified by PW 4 Shri Dhan Raj. On the completion of investigation, the police submitted a challan asainst the accused in the Court of the learned Railway Magistrate, Jodhpur. The learned Magistrate framed a charge under section 379, IPC against the accused to which he pleaded not guilty and faced the trial. In course of time, the case came for trial before the learned Chief Judicial Magistrate, Jodhpur. During trial, the prosecution examined 9 witnesses and filed some documents. In defence, no evidence was adduced. The accused was found a previous convict. Section 75. IPC was added to the charge. On the conclusion of trial, the learned Magistrate held the charge duly proved against the accused. He was consequently convicted and sentenced.

(3.) TAKING the next contention that the recovered articles have not been proved to be stolen property, it was contended that they belong to PW 5 Shri Bulaki Chand. Shri Bulaki Chand did not participate in the testidentification conducted during the investigation by the Magistrate. There is again no force in the contention It is true that Bulaki Chand did not participate in the test-identification. It is also true that the recovered Saries Ex. 1 and Ex. 2 and suit-case Ex. 3 belonged to him. However, he identified them correctly in the court during trial. It is the identification in the court which furnishes substantive evidence. The prior test-identificatoin does not constitute substantive evidence. The Prior testidentification is only to corroborate the witness and strengthen the trustworthiness of his evidence in Court. Absence of test identification is not fatal to the prosecution if the evidence given in court during the trial is found trnstworthy and credible. In the instant case, Bulaki Chand (P. W. 5) identified the Saries and the suit-case during trial and claimed that they belonged to him His this statement could not be shaken in cross-examination by the accused. The accused has not, also laid his claim on these recovered articles. In these, circumstances I agree with the courts below that the recovered articles were stolen property.