Charge sheeted on allegations of having committed offences punishable under Sections 457, 380 and 461 IPC, the petitioner was tried, convicted and sentenced by the Chief Judicial Magistrate, Kalpetta in calendar case No.176/91, to undergo rigorous imprisonment for one year each under the said three different provisions, to run concurrently and also to pay fine under the said provisions separately, with default sentence. The Additional Sessions Judge (Adhoc), Kalpetta of Sessions Division, Wyanadu confirmed the conviction and sentence, dismissing Crl.A.No.33 of 2000. Hence, this revision by the accused.
2. The revision petitioner/accused was apprehended, during the course of investigation of crime No.54/91. CRRP1273/04 2
Alleging that he had given Ext.P3(a) and Ext. P4(a) disclosure statements, MO1 and MO2 were recovered from two shops. Those material objects are alleged to have been made by converting a piece of gold ornament which the accused is alleged to have stolen from the residence of PW3 between 7.00 and 7.30 p.m. in the night of 11.11.1990.
3. Ext.P2 First Information Statement was given by PW3 at 10.00 a.m. on 12.11.1990 stating among other things that he knew about the incident at about 8.45 p.m. on 11.11.1990, as informed by his brother's son and since no vehicle was available and it was late in the night, information could not be given to the police station on the night of 11.11.1990 itself. The case of PW3, in his deposition, is not much different. He states that he had given a written complaint to the police on the next day. His wife, PW4, stated that the house was locked and the key was placed just above the door of the house and that she, CRRP1273/04 3
her son and daughter went to the neighbouring house of her husband's brother to view television. Contradicting the statement of her husband PW3, she stated that the police had come to the scene of occurrence on the night of the occurrence, as also on the next day. She also speaks about the familiarity she has with the wife of the accused. She deposed that she used to visit the residence of the accused and was on friendly terms. She, however denied the suggestion that her husband's brother's son and her son were involved in the alleged theft.
4. The courts below have noticed that there is no material directly connecting the accused person to the alleged incident of lurking house trespass or any other offence, except by the link sought to be established with the aid of the section 27 recovery. In the said circumstances, it is absolutely necessary that the evidence relating to the alleged recovery and the connecting material CRRP1273/04 4
should be such that it would inspire confidence to fix the guilt on the accused.
5. PW10, the investigating officer, says of a finger print expert being present while the scene mahazar was prepared. He also says that a chance finger print was also taken. There is absolutely no material on record in relation to that. PW5 and PW6, a salesman in Vanitha Jewellery at Sulthan Batheri and the owner of a Haseena Jewellery in Meenangadi respectively, spoke only of having purchased from the accused, certain gold stud etc. The details and characteristics of the ornament that was allegedly lost from the residence of PW3 and PW4 were vividly stated by them, as vouchsafed by the investigating officer. However, the nature of the studs that were allegedly purchased by PW5 and PW6 have not been specifically stated by them. The identity of the material which was allegedly recovered is pivotal to the case in hand. If that were to be treated as a CRRP1273/04 5
material object that would connect the accused to the alleged crime, it has, necessarily to result in a completeness in the matter of linking the object that would have been stolen, to which was converted, to result in MO1 ingot and MO2 ring. The testimonies of PW5 and PW6 do not render any material in that regard.
6. Apart from the above, the accused person cited DW1, his wife. She deposed that she had given the accused a gold stud and dropping (jimikki). The stand of the accused person is that he had sold such material belonging to his wife to PW5 and PW6. In the context of the absence of fool proof and dependable link in the evidence regarding the alleged recovery which is the sole foundation of entering and sustaining the conviction in this case, such defence version stands on preponderance of probabilities. CRRP1273/04 6
7. For the aforesaid reasons, it has necessarily to be concluded that the order of conviction and sentence was unavailable on the materials and evidence on record and the accused was entitled to be acquitted at least on the ground of benefit of doubt.
8. In the result, the appeal is allowed setting aside the impugned order of conviction and sentence and the appellate judgment confirming the same.
The revision petitioner/accused is acquitted. Bail bonds shall stand cancelled.
