Judgment:
Anil Kumar Sinha, J.
1. This revision application has been directed against the judgment and order dated 11-12-1998 passed by 7th Additional Sessions Judge, Begusarai in Criminal Appeal No. 37 of 1996, whereby and whereunder he dismissed the appeal preferred by the petitioner against the judgment of conviction and sentence passed by Sri B. N. Singh, Judl. Magistrate, Begusarai in G. R. Case No. 245 of 1989, whereby the learned Magistrate convicted the petitioner under Section 411 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of two years.
2. According to the prosecution case one Bishswanth Singh, Junior Engineer lodged a written report that on 3-2-89 some unknown persons committed theft of Aluminium wire valued at Rs. 5500/- on the basis of which Ballia P.S. Case No. 79 of 1989 was registered under Section 379 of the Indian Penal Code against unknown. In course of the investigation the petitioner is alleged to have confessed his guilt and on his disclosure two bundles of Aluminium wire were recovered by the I. O. in presence of the witnesses and the I.O. submitted chargesheet against the petitioner under Sections 379/411 of the I.P.C. on the basis of which cognizance was taken and the petitioner was put on trial. The learned trial Court acquitted the petitioner of the charge under Section 379 of the I.P.C. but convicted him for the offence under Section 411 of the I.P.C. and sentenced him to undergo rigorous imprisonment for two years. The appeal preferred by the petitioner was dismissed and this revision application has been preferred against the appellate Court's order.
3. The learned counsel appearing for the petitioner submitted that written report which was the basis for lodging the F.I.R. was not proved by the prosecution during the trial and so there was no prosecution case before the trial Court and the petitioner is entitled to his acquittal on this score alone. It appears that the formal F.I.R. (Ext. 2) as also the endorsement of the I.O. (Ext. 3) on the written report had been proved by the prosecution during the trial. The formal F.I.R. discloses that a case against unknown was instituted under Section 379 of the I.P.C. for the alleged theft of Aluminium wire from the open space. It further appears from the endorsement that the case was ordered to be investigated by A.S.I. D. Dwivedi. It is admitted position that written report submitted by Bishwanath Singh to the officer Incharge of Ballia P.S. was not proved. It may be stated in this connection that the F.I.R. is not a substantive piece of evidence. In this case the formal F.I.R. has been duly proved and at least it indicates that for the alleged theft of Aluminium wire a case under Section 379 of the I.P.C. was instituted against unknown and it also appears from the endorsement (Ext. 3) that the investigation was taken up. Therefore, even if the written report lodged by Bishwanath Singh has not been duly proved the prosecution ease will not fail on that score alone and the Court has to consider the substantive evidence which has been adduced by the prosecution. The prosecution has led evidence as deposed by the P.Ws. and the Court will certainly consider the evidence adduced by the P.Ws. which is substantive in nature. It appears that both the Courts below have considered the evidence led by the prosecution and there is concurrent finding of facts by both the Courts below.
4. The learned counsel for the petitioner next submitted that the seizure list witnesses have not been examined and the recovered materials were not produced before the Court nor the stolen materials were identified. So, on this score also the order of conviction recorded by the trial Court cannot be sustained. These are all questions of facts which cannot be looked into by this Court in its revisional jurisdiction and this Court cannot interfere in the concurrent finding of facts recorded by both the Courts below. The learned counsel for the petitioner has relied upon decisions reported in AIR 1972 SC 622 : (1972 Cri LJ 451) and AIR 1972 SC 642 : 1972 Cri LJ 458) but for the reasons stated above and the peculiar facts and circumstances of the present case the decisions, referred to above, are not applicable in the facts of the instant case.
5. Having considered all the facts and circumstances of the case, I am of the view that the order of conviction recorded by the Courts below does not require any interference by this Court :
6. It is submitted by the learned counsel for the petitioner that the petitioner has already remained in custody for a period of ten months which is sufficient.
7. So far the question of sentence is concerned, it is a case of the year 1989 and a period of 12 years have elapsed. The petitioner has remained in jail custody for a period of ten months. Hence considering the long period elapsed since the date of occurrence till now, I am of the view that ends of justice will be met if the sentence is reduced to the period already undergone by the petitioner in jail custody. Accordingly, the order of sentence is modified and the sentence awarded to the petitioner is reduced to the period already undergone by him in custody.
8. In the result, therefore, I do not find any merit in this revision application which stands dismissed subject to the modification in the sentence as indicated above. The petitioner is ordered to be discharged from the liability of his bail bonds.