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
