Harnam Singh, J.
1. This Order disposes of Criminal Revisions Nos. 440 and 596 of 1948. Amar Singh, Vir Singh, Mehnga Singh, Gurdit Singh and Gura were convicted in the Court of Sardar Lai Singh Kang, Magistrate First Class Putbankot, under Section 411, Penal Code and sentenced to rigorous imprisonment for six months. The appeal of the convicts was dismissed and they have come to this Court in revision through Mr. Panna Lai Sabi.
2. The facts are that on 27th August 1947 several non-Muslim families of village Gharota apprehending danger from Muslims left the village carrying their valuables and essential clothes. It was raining and the party took shelter in the garden of Gauri Shanker. From the garden, they went to a maize field and hid themselves in that field. Seven Cr eight Sikhs who were armed with Kirpana attacked them and took away all their valuables and clothes. When the Muslims left Gharota for Pakistan the party of these looted non- Muslims came back to Gharota. Now as they apprehended danger in the way so none of the looted persons went to the Thana on that day. Ram Chand, however, lodged the first information report with the Sub-Inspector who visited Gharota on slat August 1947 -and while making the first information report he gave a list of his articles which were stolen in the dacoity.
3. The investigation did not start till the month of December 1947, and on 19th December 1947 it appears that the police recovered articles Exs. P-l to P-52 from the accused.
4. Ram Chand P. W. 1, Rulia Ram p. w. 2, PartapSingh P.W. 3,ShrimatiDhanDevi P.W. 4 and Shrimati Ram Rakhi p. w, 6 are the principal witnesses who have appeared at the trial in support of the prosecution case. Ram Chand P. W. 1 and Shrimati Dhan Devi P. W. 4 identified a shirt made of parachute cloth which was stated to have been recovered from the possession of Gura convict. Ram Chand further identified Ex. P-12 a dopatta. Exhibit P-13 a jumper, Ex, p. 18 a shirt and ex. p. 19 a bag, which are stated to have been recovered from Gurdit Singh convict. He claims sagla Ex. p-28 and the gold bangle ex. p-2S which were recovered from Mehnga Singh convict, and likewise he lays claim to the gold bangle Ex. p-87 recovered from Vir Singh and silver sagla Ex. P. 48 recovered from Amar Singh convict.
5. It appears that Ram Chand after he had made the first information report, gave a list of the stolen articles to the Sub-Inspector. The Courts below have relied upon this list marked Ex. P-B at the trial and have come to the conclusion that the articles recovered from the convicts have been sufficiently identified by Ram Chand P.W . 1, Rulia Ram P. W. 2, Partap Singh P.W. 8, Shrimati Dhan Devi P. W. 4 and Shrimati Ram Rakhi P. W. 5.
6. Counsel contends that the list Ex. P. R. is hit by Section 162, Criminal P. C. and, therefore, could not have been used for any purpose at the trial. He oites Sucha, Singh and Anr. v. Emperor A.I.R. (19) 1932 Lah. 488 : 142 1. C. 699, Kalia and Ors. v. Emperor A.I.R. (12) 1926 cal. 959 : 26 Cr. L. J. 679 and Sheikh Fulbash v. Emperor A.I.B. (16) 1929 cal. 448 : 31 Cr. L. J. 187.
7. In Sucha Singh v. Emperor A.I.R. (19) 1932 Lah. 438 : 1421. C. 699, Currie J., following Fulbash v. Emperor A.I.R. (16) 1929 Cal. 448 : 81 Cr. L. J. 127 observed
Reference has been made to a list of the stolen property prepared by Khem Bag, P. W. 10, in which these tumblers figure, but it is cleat that such a list being made and banded over to the police in the course of the investigation cannot be admitted in evidence.
Bhide J, concurred with the opinion expressed by Currie J.
8. In Kalia v. Emperor A.I.R. (12) 1925 Cal. 959 : 86 cr. L. J, 679, Greaves and Panton 33. laid down:
Now, we agree with the criticism that has been directed against the admission of Ex. P 4. It was given, as appears, in the .course of investigation and it should Dot have been dealt with as it was by the learned Judge of admitted in evidence.
9. Again ill Fulbash v. Emperor A.I.R. (16) 1929 cal. 448 : 31 Cr. L. J. 127 C. C. Ghose and B. B. Ghose JJ. said:
It appears that these Ornaments were included in a second list handed to the Investigating Police Officer during the course of investigation. Mr. Sanyal thereupon contends that the list which was supplied to the Investigating Police Officer during the course of investigation was a statement in writing made to a, police Officer within the meaning of Section 162, Criminal P. C., and that therefore the list in question was inadmissible In evidence. We have examined the record and there is no doubt whatsoever that on the facts Mr. Sanyal'a contention appears to be well founded. If that is so, there is no escape from the conclusion that the list in question should not have been admitted in evidence but the learned Deputy Legal Bemetnbranoer had contended that the list was In no way responsible for the purpose of establishing the identity of the Ornaments which had been stolen. In our opinion we must give effect to Mr. Sanyal's contention, and hold that inadmissible evidence having been let in, there was clearly misdirection.
10. Sardar Gurdev Singh, who has appeared in these proceedings for the Grown, has invited my attention to Brij Lai alias Birja and Ors. v. Emperor A. I. R. (so) 1943 ALL. 216 : 44 Cr. L. J. 555. The facts in that were that the first information report was made by Bairaj at 10-25 A. M. on 22nd February and in the first information report it was clearly stated that Gajadhar as the head of the family would dictate a list of the stolen property. A few stolen articles were mentioned in the first information report but this was in connection with the assault on the women of the family. A subsequent list of the stolen property was given to the investigating officer and the trial Court, accepting the argument of the defence counsel, held that Ex. PI, the list of stolen property could not be brought on the file because it was given to the investigating officer after he had taken down Gajadhar's statement in the diary. On those facts Plowden J. held:
I fail to understand how a list of stolen property can be called a statement; in my opinion this section of -the Criminal Procedure Code has no reference to such a list. It is not even necessary for the complainant to state in the first information report that a list is being prepared and will be supplied to the police because snob a remark is obvious but it is advisable that such a remark should be entered in the first information report and it is usually done. When it has once been stated that a list is being prepared and when the list is given to the investigating officer within a few hours Cr within a day Cr two of the dacoity if a very serious one it is, in my opinion, ridiculous to say that the list cannot become part of the record, because the investigation has already started. The list of the stolen property is part of the first information report and it should be signed. It is not a statement about what happened at the dacoity which by definition involves loss of property, It does not implicate any particular person and the bigger the dacoity and the richer the house, the longer it takes to make out a list. I do not say that if no list; is forthcoming for a very long time it should not be treated with suspicion; the value of the list has to be weighed like any other piece of evidence, but that is entirely different from saying that the list should not be accepted in evidence. In my view the list is part of Section 154, Criminal P. C., and has nothing to do with Section 162.
11. It would appear from the observations of Plowden J. set out in the preceding paragraph that the conclusion reached by him proceeds upon the assumption that a list of stolen property cannot be called a statement and that the list in such case is a part of the first information report.
12. With great respect, I differ from the opinion expressed by Plowden J.
13. As regards the first point that a list of stolen property cannot be called a statement reference may be made to Shaikh Khabiruddin and Ors. v. Emperor A. I R. (30) 1943 cal. 644 : 45 Cr. l. J. 258. In that ease Das J. said:
Pointing out by finger Cr nod of assent in answer to a question is just as much a verbal statement as a statement by word of mouth. Section 162, Criminal P. C, does not limit itself to statement of any particular kind. It embraces all kinds of statements made to a police officer in the course of an investigation. Therefore it is in terms excluded by Section 162.
14. In my view, no elaboration of this point is necessary for 8. 119, Evidence Act provides:
A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing Cr by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be Oral evidence.
15. For the reasons given, I find that the rule laid down by Plowden J. that a list of stolen property, cannot be called a statement has no validity.
16. Again, Plowden J. has found that the list of stolen property in such cases is a part of the first information report and it should be signed. Section 164, Criminal P. C. reads:
Every information relating to the commission of a cognisable offence If given Orally to an officer In charge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant; and ever; such information, whether given in writing Cr reduced to writing as aforesaid , shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept be such officer in such form as the Provincial Government may prescribe in this behalf.
17. As the word 'first' indicates, 'first. information report' is that information which is given first in point of time and on which the investigation is commenced by the police. All statements recorded subsequent to the starting of the investigation fall under Section 162, Criminal P. C. The conditions that necessitate the recording of an information under this section are, firstly that it must be an information and, secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. Now, ex. p. f , the first information report in this case expressly relates to the commission of a cognizable offence. Again, an examination of Section 151, Criminal P. C., shows that there is no provision in the section for a list of stolen property in cases under SB. 379,397 Cr 411, Penal Code. Be that as it may, I find that in this case Ram Chand p. w, l has given a list of the property stolen from his possession, in Ex. P. P.
18. For the reasons given above, I hold that Ex. P. B. list of stolen articles given by Ram Chand p. W. l subsequent to the commencement of the investigation, was not admissible as evidence in the case.
19. Counsel next contends that the ownership of the articles baa not been proved in this case.
20. Now, the presumption permitted by Section 114, Evidence Act does not arise until the prosecution has established three facts; namely, the ownership of the articles in question, the theft of those articles, and their recent possession by the accused. The factum of the commission of an offence under Section 395, Penal Code has not been disputed at the trial and it has also not been . disputed that the culprits removed from the possession of Bam Chand p. w. l; Rulia Bam p. W. 2 and Partap Singh P. w. 8. their valuables and goods. Counsel urges that the articles recovered from the convicts in this case have not been identified to be the property of the complainants.
21. From Gura convict clothes Ex. P. 1 to p. 11 were recovered. Bam Chand P. w. l and his wife Shrimati Dhan Devi, P. W, 4 have identified the shirt made of parachute cloth, Ex. p. e. Rulia Ram P. W. 2 and his wife Shrimati Bam Bakhi p, w. 6 identified salwar Ex. P. 2, dopattas P. 8 and p. 4, shirt ex. P. 5 and another shirt, Ex. P. C. Counsel points out that exs. P. i, P. 6, P. 7, P. 9 and P. ll recovered from Gura convict have not been identified at the trial. Again, a reference to the statement of Shrimati Dhan Devi P. w. 4 shows that she wag not able to point out any- mark of identification on Ex. p. 8, and it appears that Ex. P. 8 is of a common pattern which may be possessed by any person and the convict Gura has claimed Ex. P. 8 as his own property, As regards Ess p. 2, p. 8, p. 4, P. 6 and p. 10 claimed by Rulia Bam P. W. 2 and Shrimati Ram Rakhi P. W. 5 the same Criticism does apply. In relation to the articles claimed by Rulia Bam and Shrimati Bam Rakhi, it may be mentioned that they were not mentioned in the first information report.
22. For the reasons given above, I hold that the ownership of the articles Exs. p. 1 to P, 11 has not been established in this case and that being so, I give the benefit of the doubt to Gura convict and acquit him.
23. Coming to the cage of Gurdit Singh, convict, I find that his conviction proceeds upon the recovery from his possession of articles Ex. p/12 to Ex. p/21. None of these articles are mentioned in the first information report made by Ram Chand. He, however, claimed at the trial Ex. P. 12, P. 18, P. 18 and P. 19 1,3 his own property. He was supported in this claim by his wife Shrimati Dhan Devi P. W. 4. These articles are take dopatta, a jumper, & shirt and a bag and the prosecution witnesses have not been able to suggest at the trial as to how it was that they were able to identify these articles as their own. Rulia Earn identified Ex. P. 14, P. 15, P. 17 and p. 21 and Partap Singh p. w. 3 identified Ex. 16. Articles ex. p. 11 and p. 20 were not identified at all by any prosecution witness. The remarks that I have made with reference to the articles claimed by Bam Chand p. w. 1 apply proprio vigore to the articles claimed by Rulia Bam, Shrimati Ram Rakhi and Partap Singh.
24. For the reasons given above, I find that the ownership of the articles Ex. P. 12 to p. 21 has not been established and I give the benefit of the doubt to Gurdit Singh convict and acquit him.
25. The case of Mehnga Singh is somewhat different. Bam Chand p. w. 1 mentioned in the first information report that silver Ornaments Ordinarily worn by ladies of feet weighing 36 tolas and gold bangles weighing 4 tolas had been stolen from him. Sagla Ex. p. 23 weighing 8 tolas and 7 mashas, and a gold bangle weighing l tola 11 mashas and l raii. Ex, p. 23 have been recovered from Mehnga Singh convict. Exhibit p. 28 and Ex. p. 28 were identified by Bam Chand p. w. 1 and Shrimati Dhan Devi p. w. 4 on 17th January 19.48. Vir Singh convict is a brother of the said Mehnga Singh and from his possession on the same day gold bangle Ex. p. 37 weigh- ing 1 tola 11 mashas 3 ratis was recovered. In my view, the identity of the articles Ex. P. 28 and Ex, F. 28 and Ex. P. 87 has been sufficiently established and I hold that exs. p. 33, p. as and p. 87 were the property stolen from Ram Chand P. W. l.
26. Counsel next contends that the possession of the convicts was not recent within the meaning of 8.114, illustration (a), Evidence Act. Now, in a case of possession of stolen goods no fixed time-limit can be laid down to determine whether possession is recent Cr otherwise and every case must be judged on its own merits. The presumption of guilt varies according to whether the stolen articles are Cr are not calculated to pass readily from hand to hand and therefore the importance to be attached to possession must vary with the circumstances of each individual case. The gold bangles and saglas are not, in my opinion, articles calculated to pass readily from band to hand and that being so, I hold that the possession of the articles recovered from Mehnga Singh and Vir Singh convicts on 19th December 1947 was recent within the meaning of Section 114, illustration (a), Evidence Act, In this view of the case, I maintain the convictions and sentences Mehnga Singh and Vir Singh. They were released on bail by Ram Ball, C. J., on 1st October 1918. They must surrender to their bail bonds and serve the unexpired portion of the sentences imposed upon them.
27. There remains the case of Amar Singh convict. From his possession articles Ex. P. 40 to p. 62 were recovered. Of them Ex. p. 48 is a silver sagla which goes with the sagla Ex. p. S3 recovered from Mehnga Singh. The sagla recovered from Mehnga Singh weighs 8 tolas and 7 mashas and it is 'significant that the sagla Ex, P. 18 recovered from Amar Singh also weighs 8 tolas and 7 mashas. I am clear that the sagla p. 48 is part of the proceeds of the stolen property and for the reasons set out above in the case of Mehnga Singh, I maintain the conviction and sentence of Amar Singh and dismiss his petition.
28. The result is that I acquit Gura and Gurdit Singh convicts. Gura appears to have served out his sentence of imprisonment, but Gurdit Singh was released on bail by Ram Lall, C, J., on 1st October 1948. He is discharged from his bail bond.
29. The revision petition of Mehnga Singh, Vic Singh and Amar Singh convicts fails and is dismissed in toto.