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Saturday, January 26, 2013

Sections 380 and 451 of the IPC = alleged recovery of gold chain at his instance. That cannot connect the appellant to the theft. The Trial Court has stated that since chain was recovered at the instance of the appellant, the only inference which can be drawn is that he committed the theft. Drawing such inference in the facts of this case would be totally unjust. Pertinently, PW8 from whose shop the chain is said to have been recovered has turned hostile. = FIR was registered after about sixteen days from the date of alleged theft. PWs-1 and 2 did not even realize that the chain was stolen. It is only when the accused were brought to their house after about sixteen days that they realized that the chain was stolen and FIR was lodged. The chain in question was being worn by PW2. It is stated to have been stolen while she was sleeping. It is inconceivable that she would not realize that she had lost her chain. The incident in our view is not unfolded truthfully. A1 and A3 have been rightly acquitted because nothing links them to the offence. But, similar is the case with the appellant. The only evidence against him is the alleged recovery of gold chain at his instance. That cannot connect the appellant to the theft. The Trial Court has stated that since chain was recovered at the instance of the appellant, the only inference which can be drawn is that he committed the theft. Drawing such inference in the facts of this case would be totally unjust. Pertinently, PW8 from whose shop the chain is said to have been recovered has turned hostile. Thus, the prosecution is relying only on police witnesses. In this case, it is unsafe to do so. = Grave doubt is, therefore, created as to whether the appellant could be involved in the offence of theft. We are, therefore, of the view that benefit of doubt must be given to the appellant and he must be acquitted. - We, therefore, allow the appeal. The impugned judgment and order is quashed and set aside. The appellant is acquitted of the offences under Sections 380 and 451 of the IPC. The appellant is in jail. He is directed to be released forthwith, unless he is required in any other case.


                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 177 OF 2013
       (Arising out of Special Leave Petition (Crl.) No.5437 of 2012)


AZEEZ                             …          APPELLANT

           Versus

STATE OF KERALA                   …          RESPONDENT


                                  JUDGMENT


(SMT.) RANJANA PRAKASH DESAI, J.


1.    Leave granted.


2.    The appellant(A2-Azeez) along with two others i.e. A1-Khalid  and  A3-
Babu was  tried  by  the  Judicial  Magistrate,  First  Class-I,  Aluva  for
offences punishable under Sections 457 and 380 read with Section 34  of  the
Indian Penal Code  (for  short,  “the  IPC”).  By  order  dated  15/12/2000,
learned Magistrate convicted the appellant under Section 457 of the IPC  and
sentenced him to undergo rigorous imprisonment for one year.  The  appellant
was further  convicted  for  offence  under  Section  380  of  the  IPC  and
sentenced to undergo rigorous imprisonment for two years.   The  substantive
sentences were ordered to run concurrently.    A1-Khalid  and  A3-Babu  were
acquitted.

3.     The  appellant  challenged  the  said  order  before  the  Additional
Sessions Judge, Ernakulam.   Learned  Sessions  Judge  by  his  order  dated
28/11/2002 confirmed the conviction and sentence and dismissed  the  appeal.
Being aggrieved by the said conviction and sentence, the appellant  filed  a
criminal revision petition in  the  Kerala  High  Court.   By  the  impugned
judgment, the High Court  dismissed  the  revision  petition.   Hence,  this
appeal by special leave is filed against the said judgment.

4.    According to the prosecution, the appellant along with  A1-Khalid  and
A3-Babu with an intention of committing theft  entered  the  house  of  PW1-
Radha at Karumalloor Village on 12/11/1995 at 4.00  a.m.  through  the  door
which was kept open.  They entered the bedroom where PW2- Renuka Devi    was
sleeping and committed theft  of  a  gold  chain  weighing  14  grams  worth
Rs.7,500/- which PW2 was  wearing  while  she  was  sleeping.    A1  and  A3
assisted the appellant in committing the offence.  They gave the gold  chain
to the appellant for selling.  The appellant sold the  gold  chain  and  the
accused divided the sale proceeds and thereby committed the offence.

5.    This case presents rather unusual facts.  PW7, the  Circle  Inspector,
stated that he arrested the  accused  on  28/11/1995  at  1  a.m.  near  the
parking  area,  Municipal  Buildings,  Aluva,  while  they  were  moving  in
suspicious circumstances.  On questioning them, it was  revealed  that  they
had committed the offence involved in this case,  hence  they  proceeded  to
the house of PW1 at Aduvathuruthu and recorded her F.I.R.(Ext.P1).

6.    PW1 in her evidence stated that her daughter PW2 was sleeping  in  her
room on the night of 12/11/1995.  PW2 was wearing Thara fashion gold  chain.
 The gold chain was stolen  but  no  complaint  was  lodged  at  the  police
station because PW2 did not realize that her gold chain was stolen.   It  is
only on 28/11/1995 when the police  came  to  their  house  along  with  the
accused and the gold chain was shown to her that she realized that the  gold
chain was stolen.  She identified the gold  chain  MO1.   FIR  (Ext.P1)  was
then lodged.  PW2, the daughter, stated that on 12/11/1995 at about 11  p.m.
she went to sleep. On the next day morning the gold chain was not seen.   On
28/11/1995 when the police came to her house with  the  accused  and  showed
her the chain, she realized that her chain was stolen.  She  identified  the
chain.

7.    Evidence of PWs-1 and 2 raise several question marks.  If  gold  chain
worn by PW2 was removed by the accused at night,  it  is  unbelievable  that
she would not realize it in the morning.  Even  PW1,  the  mother,  did  not
realize that the chain worn by PW2 was not around her neck.   Assuming  this
to be true, PWs-1 and 2 would at least realize the loss on the next  day  or
a day thereafter.  They did not realize  that  the  chain  was  stolen  till
28/11/1995, when the police came to their house with the accused and  showed
them the chain. At that time they realized that chain was stolen.  It is  on
28/11/1995 that PW1 lodged her complaint.  Thus, the complaint  came  to  be
lodged about sixteen days after the incident that too after the police  came
to PW1’s house with the chain.  The sequence of  events  is  not  convincing
and does not stand to reason.

8.    According to the prosecution the appellant made a discovery  statement
to PW7-the Circle Inspector and pursuant to that statement PW7 went  to  the
shop of PW8-Pradeep along with the appellant. The  appellant  is  stated  to
have pointed out to PW8 as the man to whom he had sold the  chain.  However,
PW8 has not supported the prosecution case.  The  courts  below  have  while
convicting the appellant placed reliance on the evidence of  PW7-the  Circle
Inspector and PW3-the Head Constable who sought to corroborate  the  version
of PW7 regarding recovery of chain at the instance  of  the  appellant  from
the shop of PW8.  We find it difficult to do so.  Trial Court  has  observed
that offence under Section 457 of the IPC is not made out because  according
to PW1 the thieves entered the door which was kept open.  The  Trial  Court,
therefore, acquitted the appellant of the offence punishable  under  Section
457 of the IPC. The Trial Court also acquitted A1  and  A3  of  the  offence
punishable under Section 457 read with Section 34 of  the  IPC.   The  Trial
Court, however, observed that from the evidence of PWs-1 and 2  it  is  seen
that theft had taken in the room  in  which  PW2  was  sleeping;  the  thief
entered the house and committed theft of gold chain which  PW2  was  wearing
and, therefore, this act will be covered by Section  451  of  the  IPC  i.e.
house-trespass in order to  commit  offence  punishable  with  imprisonment.
The Trial Court further held that since  the  recovery  of  gold  chain  was
effected on  the  basis  of  statement  given  by  the  appellant  the  only
inference that can be drawn is that he committed the  theft  of  gold  chain
and therefore the case is covered by Section 380 of the IPC i.e. theft in  a
dwelling house.  After observing that there is nothing in  the  evidence  of
PWs-1 to 8 to connect A1 and A3 with the crime  the  Trial  Court  acquitted
them of all the offences.  This view is affirmed by the Sessions  Court  and
the High Court.

9.    We find it difficult to uphold the above view so far as it relates  to
the appellant.  As we have already  noted  that
FIR  was  registered  after
about sixteen days from the date of alleged theft.   
PWs-1  and  2  did  not even realize that the chain was stolen.  
It is only when  the  accused  were
brought to their house after about sixteen days that they realized that  the
chain was stolen and FIR was lodged.  
The chain in question was  being  worn by PW2.  
It is stated to have been stolen while she  was  sleeping.   
It  is
inconceivable that she would not realize that she had lost her  chain.   
The
incident in our view is  not  unfolded  truthfully.  
A1  and  A3  have  been
rightly acquitted because nothing links them to the offence.  
 But,  similar
is the case with the appellant.   
The  only  evidence  against  him  is  the
alleged recovery of gold chain at his instance.   
That  cannot  connect  the
appellant to the theft.  
The Trial Court has stated  that  since  chain  was
recovered at the instance of the appellant, the only inference which can  be
drawn is that he committed the theft. 
Drawing such inference  in  the  facts
of this case would be totally unjust. 
Pertinently, PW8 from whose  shop  the
chain is said  to  have  been  recovered  has  turned  hostile.   
Thus,  the
prosecution is relying only on police witnesses. In this case, it is  unsafe
to do so. 
Grave doubt is, therefore, created as  to  whether  the  appellant
could be involved in the offence of theft.  We are, therefore, of  the  view that benefit of doubt must  be  given  to  the  appellant  and  he  must  be acquitted.

10.   We, therefore, allow the appeal.  The impugned judgment and  order  is
quashed and set aside. The appellant is  acquitted  of  the  offences  under
Sections 380 and 451 of the IPC.  The appellant is in jail.  He is  directed
to be released forthwith, unless he is required in any other case.



                                                       ……………………………………………..J.
                                (AFTAB ALAM)




                                                       ……………………………………………..J.
                                                     (RANJANA PRAKASH DESAI)
NEW DELHI,
JANUARY 23, 2013


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