Judgment

DUA, J.:- The only point raised on behalf of the appellant by his learned counsel Shri A. K. Nag is based on the argument that the provisions on S. 342, Criminal Procedure Code were not complied with by the trial court.

2. The appellant was charged under S. 411, Indian Penal Code and under S. 3 of the Railway Stores (Unlawful Possession) Act, 1955, According to the prosecution case on January 7, 1967 Shri K. K. Venkateshwaram, Sub-Inspector of Railway Police Force Chakradharpur, along with others, was coming to Chakradharpur in a third class bogey of 328 Down Nagpur-Chakradharpur Passenger train. They heard some knocking sounds emanating from the adjoining bogey when the train was between Jaraikela and Manoharpur railway stations. As soon as the train reached Manoharpur station Venkateswaram, along with P. Y. Kundulu, Head Rakshak and D. Bhaskar Rao, went into the adjoining bogey and found the accused alone there. On inspection of the bogey they detected that the mirror of its latrine had been taken out. They questioned the accused about the missing mirror but he denied all knowledge about it. Thereafter the bag of the accused was searched and from it a mirror bearing the mark "IR" was recovered. On these facts the police registered a case under Ss. 379/411, Indian Penal Code. But in the trial court the charges were confined to S. 411, Indian Penal Code, and S. 3 of the Railway Stores (Unlawful Possession) Act, 1955. The trial court convicted the appellant under both the sections and sentenced him to undergo rigorous imprisonment for six months under each count, the sentences to run concurrently.

3. On appeal the learned additional Sessions Judge, Singhbhum at Chaibassa affirmed the order of the trial court.

4. The appellant took the matter or revision before the Patna High Court but the same was dismissed in limine.

5. As already observed, in this Court the only objection raised on behalf of the appellant is that the provisions of Section 342, Code of Criminal Procedure have not been fully complied with.

6. The trial court put the following two questions to the accused under S. 342 Cr. P. C. :

"Q. 1: It is stated that on 6-9-67 (?) (7-1-67) at about 6-1/4) p.m. at Manoharpur railway station a mirror was discovered from you in the third class compartment in 328 Down Nagpur Chakradhapur. What have you to say ?

A: No."

Q. 2: It is stated that the abovesaid mirror recovered from you on the abovesaid date was broken by you, What have you to say?

A: No."

The third and the last question related to the first information report which does not concern us.

7. The language and form of the question no. 1 as printed in the printed paper book does seem to suggest that there was no proper compliance with S. 342, Cr. P. C. We, therefore, looked at the original record. There we find that the question was differently worded and the translation in print is incorrect in material particulars. The original question reads:

"Kaha jatahai ki ta: (Tarikh) 7-1-67 ke karib save 6 baje sandhya Manoharpur railway station main 328 down Nagpur-Chakradharpur train ke third class compartment main ap ke pas se railway ke ek aina baramad hua tha. Ap ko kya kahana hai?"

The answer was, as already observed, "No".

8. The question as actually put to the accused does refer to the mirror recovered from him to be a railway mirror.

9. When confronted with this form of the question the learned counsel for the appellant had practically nothing to say in support of this grievance. In a half-hearted manner, however, the contended that reference should also have been made in the question put to the accused to the allegation that the mirror was stolen railway property because this is an essential ingredient for invoking Section 411, I.P.C. and failure to do so has vitiated the trial and the conviction. We are unable to agree with the learned counsel.

10. The facts of the case are simple and free from any complication. It is difficult to hold that merely because it was not put to the