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  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

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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

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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

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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

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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

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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

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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

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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)

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……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, JANUARY 23, 2013