S. S. BYAS, J. - (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. I have heard the learned counsel for the accused and the learned Public Prosecutor. I have also gone through the case file carefully. In assailing the conviction of the accused, the points taken by the learned counsel are that the prosecution has utterly failed to prove that the recovered articles viz. , Saries Ex. 1 and Ex. 2 and the suit-case Ex. 3, were stolen articles. It was vehemently contended that these articles were alleged to be of Shri Bulaki Chand (PW 5), but he was not called in the test-identification. These articles are of common pattern and are generally available. The recovery was made nearly after four months of the alleged theft It was also argued that the recovered Saries were not sealed at the time of seizure. It was also argued that the accused was never arrested before the alleged informations were given by him; as such S. 27 of the Evidence Act was not applicable. In reply the learned Public Prosecutor submitted that since the articles Ex. 1. Ex. 2, and Ex 3 were recovered in consequence of the information furnished by the accused, it must be presumed that he had stolen them. I have taken the respective contentions into consideration. I find no force in the contention of the learned counsel that Section 27 of the Evidence Act was not applicable. It is true that the accused was formally arrested on 27. 10 80. However, PW 2 Shri Ram Chandra, the then Station House Officer, G R P. , Jodhpur deposed that theaccused was in custody in some other case on 8. 9. 80. His this statement has not been challenged in cross examination. The accused should, therefore. be taken to be in the custody of police on 8. 9. 80. Section 27 of the Evidence Act speaks of custody. "custody" is not equivalent to arrest. The word "custody" in Section 27 does not necessarily mean detention or confinement. If the accsued is under surveillance, it amounts to custody. In State of U. P. Vs. Deoman Upadhiyaya (1), it was held that when a person, not in custody, approached a police officer and offers to give information leading to the discovery of a fact having a bearing on the charge, he may be taken to be in the custody of a police officer within the meaning of Section 27 of the Evidence Act. In the instant case, the accused was arrested in some other case. He was taken by the S. H. O. in custody in the instant case for investigation. I, therefore, find no merit in the contention that the accused was not in custody when he gave the informations leading to the discoveries of the stolen articles.
(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. It was next contended that there is no reliable evidence to show that the accused had given Saries Ex. 1 and Ex. 2 to Shri Kaiiash Singh (PW 1) or suit-case Ex. 3 to Shri Mahaveer Chand Jain. The contention is not without force. PW 1 Shri Kaiiash Singh no doubt stated that the accused had pledged Saries Ex. 1 and Ex. 2 to him for a sum of Rs. 50/-, but in cross-examination he admitted that the accused was not known to him. No test-identification of the accused was conducted. Shri Kaiiash Singh was examined during trial on 3. 8 82, i. e. nearly after two years of the occurrence. It is difficult for a witness to identify a person whom he has casually seen once. Kaiiash Singh (PW1) also stated that the accused had given the Saries to him in the presence of one Bhanwar Lal, but curiously enough, Bhanwar Lal has not been examined in evidenee by the prosecution. It is therefore, difficult to accept the prosecution version that the accused had pledged two Saries to PW 1 Kaiiash Singh. The matter in respect of suit-case Ex 3 is still worse. It was alleged buy the prosecution that suit-case Ex. 3 was recovered from one Shri Mahaveer Chand Jain of Jodhpur, to whom the accused had given it. Again, strangely enough, Mahaveer Chand Jain, who resides in Jodhpur, was not produced in evidence. It was Mahaveer Chand alone who could testify that suit-case Ex. 3 was given to him by the accused No reasons are forth coming as to why Mahaveer Chand was not examined as a witness by the prosecution. ;