Judgment

PALEKAR, J. : In this appeal by special leave the appellant, Mahabir Sao, has been convicted for the offence under section 411-IPC and sentenced to six months rigorous imprisonment. The conviction and sentence recorded by the learned Munsif Magistrate, Monghyr have been confirmed by the Sessions Judge in appeal. A revision application filed by the appellant to the High Court was summarily dismissed.

2. The case against the appellant was started on a complaint made by Major M. A. Subhan, P.W. 3 who was the Military Station Commander with his Headquarters at Jamalpur. On information given to him by Subedar Saved Ismail, P.W. 4, he complained on 27-6-1965 to the Police Station at Jamalpur that three G. I. Pipes (Galvanised Iron Pipes) were missing from the camp and some sweepers working in the camp were suspected of the crime. On the same day the Officer in-charge of the Police Station S. 1. Suraj Prasad, P. W. 8 recovered one pipe from the place of one Fakira, father of Saryug Yadav, P. W. 1 and two pipes from the Angan of the house of the appellant. Saryug Yadav, P. W. 1 explained that he purchased the pipe from a person named Pooran on 25-6-1965. Thereafter the aforesaid Pooran and the appellant were challenged before the Munsif Magistrate, Second Class, Monghyr. Both Pooram and the appellant pleaded not guilty. Pooran was acquitted but the appellant was convicted under section 411-IPC and sentenced as above.

3. It is contended before us by the learned counsel for the Appellant that there has been a grave miscarriage of justice because none of the courts cared to consider the appellant s contention that the two pipes attached from his Angan were not Galvanised pipes but boiler pipes belonging to himself. It was the case of the prosecution that three Galvanised Iron pipes had been stolen and yet he has been convicted for being in possession of two boiler pipes which are absolutely different from Galvanised iron pipes. In other words, the contention has been that the two pipes attached from the Angan of the appellant were not stolen property at all and, therefore, the conviction under section 411-IPC could not be sustained.

4. That the above contention of the appellant had been put by him in the forefront is clear from the written statement which he had filed before the learned Magistrate. He specifically contended that the pipes attached from his possession were old boiler pipes or tubes and not Galvanised iron pipes and since the prosecution case was that three Galvanised iron pipes had been stolen, the identity of the stolen articles had not been established. However, both the learned Magistrate and the Sessions Judge seem to have proceeded on the assumption that Galvanised pipes were recovered by the police from the house of the appellant. The learned Magistrate commences para 8 of his judgment with these observations.

"Admittedly the G. 1. Pipes were recovered by Police from the house of Mahabir Sao in presence of P. W. 5 Bindo and P. W. 6 Karu Tanti."

Similarly the learned Sessions Judge commences para 4 of his judgment with the following observations:

"There can be no dispute that a theft of three G. I. Pipes had taken place from the camp of the Railway Engineers at Jamalpur. There is also no dispute that two G. I. Pipes were recovered from the house of the appellant on the same day on which the theft had been reported on 27-6-65." It is obvious, therefore, that both the courts did not apply their mind to the question as to whether these pipes which are attached from the possession of the appellant were Galvanised iron pipes or boiler pipes. There is evidence on record to show that boiler pipes are different from Galvanised iron pipes as is clear from the evidence of Subedar Sayed Ismail, P. W. 4 on whose information the report had been made by his superior Major M. A. Subhan to the Police Station. He admits that Galvanised iron pipes are different from boiler pipes. Yet he insists that the two pipes which are attached