R.S. Sarkaria JUDGMENT
R.S. Sarkaria, J.
1. This appeal by special leave is directed against a judgment of the High Court of Bombay upholding the conviction and sentence passed against the appellant under Section 379, Penal Code. The facts are these:
The appellant was tried in the court of the Presidency Magistrate 5th Court, Dadar on the charge of committing theft of three drums containing phosphorous pentaoxide, valued at Rs. 300/-, from the premises of the Bombay Port Trust on 1-8-1968 at 8.40 A. M.
2. The First Information Report of the theft lodged with the police by Murari Bhikaji Bidya (PW 1) Shed Superintendent of Haji Bunder, at 9.15, was as follows:
Today in the morning at about 8 a. m., I reported for duty at Haji Bunder. At about 8.40 A. M. or so, the Canteen boy named Shri Babu Durga came to me and informed me that one M/Car had come inside Haji Bunder and removed 3 small drums which were lying between 'A' Shed and Canteen in an open place along with several drums. I immediately asked Shri Joshi the gate-keeper who was present in my office at that particular time, to go out and see what was the matter. After some time Shri Joshi came to my office and informed me that before he could reach the gate, the car had already left however, he has noted down the number of the Car as 6649. He further told me that he shouted to stop the car but the driver of the said car drove away the car at a fast speed. I then went in the open place in between 'A' Shed and Canteen where the drums were lying when the above said Canteen boy showed me a gap in between bigger-size drums from where the small drums were removed ....
3. Sub-Inspector Thorat PW7, conducted the investigation. After making inquiries from the Regional Transport Office, he traced the owner of the car, BML 6649, and requested him to send his car-driver to the Police station. Accordingly, the driver, Babu Vithal (PW 5), accompanied by the accused (appellant) appeared before the Sub-Inspector in the Police Station on September 26, 1968. The Sub-Inspector took the accused into custody. He then called the Panchas (including PW 6) and, in their presence, interrogated the accused who made a statement which was recorded by the Sub-Inspector. Rendered into English, this statement (incorporated in the Panchnama Ex. C) reads:
I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on 1st August.
4. The accused then led the Police Officer and the Panchas to a Musafirkhana in Crawford Market and pointed out the three drums lying there, bearing the markings, 'ACC I Phosphorous Pentaoxide'. Thereafter, the drums were identified by PW 1 as the same which had been stolen.
5. Among others, the prosecution examined M. Bhikaji (PW 1), the informant, Vishnu Sakharam (PW 2), the Gate-keeper, Govindji (PW 3) the Clearing Agent and Rasal Mohd. (PW 6), a panch witness of the discovery. The driver of the car BML 6649 was also put in the witness-box as PW 5. He turned hostile and the prosecution cross-examined him to impeach his credit.
6. The plea of the appellant was one of plain denial of the prosecution case.
7. The courts below have concurrency found these facts:
1. That three drums had been stolen from the shed of the Bombay Port Trust on 1-8-1968 at 8.40 A.M.
2. That the drums in question were the same that had been stolen.
3. That these drums were discovered in consequence of the information (vide Ex. C) given by the accused whilst in police custody.
4. That such information, as admissible under Section