(1) This revision application has been preferred by the complainant Kadiya Kanbi Bhavan Manji of Bodka against the order of the Sessions Judge, Halar Division, passed in appeal from the order of the First Class Magistrate, Dhrol-Jodiya.
(2) The opponent and four others were prosecuted before the learned Magistrate for offences punishable Under Sections 457 and 380 I.P.C. in respect of a burglary which was committed in the complainant's shop after the midnight of 22-3-1952. The shop was found broken open and currency notes of Rs. 1790/- some change and cloth worth Rs, 1634/- were found stolen away. The accused No. 1 and the present opponent, who was accused No. 2 before the Magistrate, were convicted by him while the rest of the accused persons were acquitted.
In the course of police investigation the opponent took the police and panchas to his house and dug up from the osri a purse which was found to contain Rs. 312-5-4 in currency notes of different denominations and copper coins. This discovery was recorded in a panchnama Ex. 7 along with discovery of other articles made by the accused at Kanbi Gada's vadi.
The panchnama records that the opponent offered to discover the currency notes and loose coins which had come to his share and took them to his house where he dug out the purse, The complainant is stated to have identified the money contained in it as his property. The opponent in his statement recorded Under Section 342 Or. P. C. admitted the discovery but he stated that the money represented the sale proceeds of his bullocks. The learned Magistrate held that as the complainant had Identified the money and as the opponent had not proved that he had sold any bullocks, it must be held to be stolen property and while convicting the opponent he ordered this sum to be paid to the complainant. His order is made Under Section 517, Or. P. C.
The opponent preferred an appeal against his conviction to the Sessions Judge Halar Division, who dismissed the appeal and confirmed the sentence but ordered this amount to be returned to the opponent. He appears to have been impress ed by the admission of the police Prosecutor that the money had not been identified. Peeling aggrieved by this order the complainant has approached this Court in revision.
(3) We feel that in holding that the money had not been identified and therefore it should be returned to the opponent No. 1 both the Public prosecutor and the learned Sessions Judge completely overlooked the panchnama Ex. 7 wherein the opponent is stated to have admitted that the money represented his share of the stolen property. The opponent's explanation in the Court that it represented the sale proceeds of his bullocks has been rightly rejected by the learned Magistrate. It is therefore clear that the amount must be part of the stolen property.
It Is true that the currency notes could not be identified by numbers as the complainant appears not unnaturally to have kept no note of their numbers. Similarly the coins also could not be identified by any distinguishing marks. But when the fact of the accused's admission and the manner in which the money was buried in the accused's house are taken into consideration along with his explanation about how he came into possession of it, there can be no difficulty in holding that the amount represented part of the stolen property and should be handed over to the complainant.
(4) Unfortunately neither the learned First Class Magistrate nor the Police Prosecutor who conducted the prosecution cared to prove the opponent's admission contained in the panchama through the panch when he was being examined on behalf of the prosecution. The panchnama was bodily admitted into evidence and the panch was merely asked to identify the signature below it. This procedure is entirely illegal. A panchnama can never be treated as substantive evidence of the facts recorded therein. These facts have to be proved independently of the panchnama by the testimony on oath of the panch who had seen these facts and who was a party to the panchnama. The Panchnama is useful only to corroborate or contradict the panch witness or to refresh his memory.
This elementary rule of evidence has been overlooked in this case as the panch has not been questioned on the admission. Therefore although there was material to prove the admission there is technically no legal evidence that the money was admitted by the opponent to be part of the stolen property. This lacuna must now be remedied and we therefore set aside the learned Magistrate's order regarding the disposal of the amount and remand the case to him with the direction that he should examine the panch witness and the Sub-Inspector and record such other evidence as may be adduced regarding the admission of the opponent contained in the panchnama and should then make the order of disposal of the money in the light of that evidence.