K.V. Gopalakrishnan Nair, J.
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 non-production 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.
4. Dealing with the question whether the list of the stolen articles is hit by Section 162 of the Code of Criminal Procedure it has to be noted that this section will be attracted only if the list was given by the complainant to the police officer after' the commencement of the investigation of the case by him. It is true that a statement made by any person to a police officer in the course of an investigation cannot be used for any purpose except that specified in Section 162. But this limitation does not apply to a statement which is not made in the course of investigation.
5. The facts of the present case show that the list of stolen articles was furnished by the accused as soon as the police officer reached his house and clearly before the commencement of the investigation under Chapter XIV of the Code of Criminal Procedure. It is not correct to say that the moment a police officer leaves the police station for the scene of occurrence the investigation of the case has started.
In the F. I. R. the complainant specifically stated that he will furnish a list of the stolen articles when the police officer comes to his house. And as he did furnish a list accordingly before the commencement of the investigation, that list must be taken to be part of and parcel of the First In-formation Report. It seems to me that the list properly fell under Section 154 and was not hit by Section 162 of the Code of Criminal Procedure. The decision of a Division Bench of the Allahabad High Court reported in Bhondu v. Rex AIR 1949 All 364 is apposite and supports the view I have expressed. The argument of the learned Advocate General that even if the list of the stolen articles were on the record it could not have been availed of by the prosecution as it fell within the mischief of Section 162, therefore seems to be devoid of force,
6. What then is the effect of the non-production and non-proving of the list in this case? Practically every article recovered from the accused person has been identified by independent witnesses of truth who have in the clearest term deposed that the articles belong to the complainant, Ganga Ram, Thus it is not only on the evidence of Ganga Ram that the courts below have come to the finding that the articles recovered were those which belonged to the complainant and were stolen from his house as reported by him to the police Order 28th Chet 2010. The learned Counsel for the petitioners has not even attempted to challenge the veracity of any of these independent witnesses. In view of this independent evidence which has been lightly accepted by the courts below, the effect of non-production and non-proving of the list of stolen property is not such as to entitle the accused persons to an acquittal.
7. The other point urged on behalf of the petitioners is that the presumption embodied in Illustration (a) to Section 114 of the evidence Act on which the conviction in this case is based was not really attracted to the case. The Illustration reads as follows:
The Court may presume--
that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
This presumption will apply only when a per-son is in possession of stolen goods soon after the theft. In the present case, the articles have been recovered nearly eight months after the date of the theft. This lapse of time tenders the words soon after the theft inapplicable to the case.
8. The result is that the presumption itself is inapplicable. And if the presumption is inapplicable, a conviction under Section 411 of the Penal Coda can be sustained only where the accused are shown to have dishonestly received or retained any stolen property, knowing or having reason to believe the same to be stolen property. There is no evidence at all to show that the accused persons had the necessary guilty knowledge required by Section 411 of the Penal Code. Thus the interpretation to be put upon the words 'soon after the theft' occurring in illus. (a) to Section 114 of the Evidence Act assumes great importance because on their interpretation would depend the acquittal or the conviction of the petitioners.
There is no hard and fast rule governing the question whether a particular recovery of property was soon after the theft or not. Each case will have to be decided on its own facts. The nature of the stolen articles will have to be taken into consideration in coming to the conclusion whether in a given case the accused have been found in possession of the stolen goods soon after the theft or not. The case of a stolen article found in the possession of the suspected person after a period 'of about eight months from the date of the theft has been held to be covered by illus (a). Please see Reoti v. Emperor AIR 1933 All 461
9. Considering the nature of the stolen articles in the present case which for the most part consist of valuable gold and silver jewellery of distinctive workmanship and also other circumstances of the case, such as the stolen property having been buried under earth for months on end and the inability of the accused to account for their possession of the articles, I am of the view that the efflux of a period of nearly eight months is not sufficient to take the case out of the ambit of illus. (a). I have therefore come to the conclusion that the courts below were right in reiving upon the presumption embodied in this illustration. In this view it is unnecessary to go further and discuss the point whether all the ingredients of Section 411, especially the ingredient relating to guilty knowledge, has been established in this case.
10. In view of what I have stated above, I confirm the conviction and sentence of the accused-petitioners. The bail granted to the petitioners is cancelled. The petitioners will surrender them selves to serve out the remainder, of their sentence.
11. It has been represented to me by the- learned Advocate General that it is likely that Goga, one of the petitioners, has already served out his- sentence and also paid the fine. This may be verified and if found true, there can be no question of his having to serve out any remainder of his sentence.