IMPORTANT POINT
Criminal Trial - conviction and sentence.

JUDGMENT

Ranjana Prakash Desai, J.-

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 inher 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 a