1. This is complainant's appeal and is directed against Judgment dated 13.10.08 acquitting the accused under Section 406 IPC.

2. The complainant is a widow who had five sons and two daughters. After Judgment dated 13.10.2008 and during the pendency of her application for leave to appeal, she expired and the application for leave to appeal was pursued by one of her sons by name Liyakat Ali Khan.

3. The complaint was filed by her against one of her sons by name Salim Khan/A-2 and his wife Smt. Rahimat Bi Khan/A-1. However, process was issued against only her daughter-in-law the said Smt. Rahimat Khan who will be hereinafter referred to as the accused. No process was issued against her son the said Salim Khan nor the order refusing to issue process against him appears to have been challenged. Any reference to the complainant hereinafter will be to the deceased complainant.

4. The complaint was filed with the allegation that in March, 2007, the complainant had told her son the said Salim Khan to keep certain gold ornaments belonging to her with him in his safe custody and her said son Mr. Salim Khan had told her not to worry and to hand over the said ornaments to his wife i.e. the accused and accordingly at the behest of her son, the said Salim Khan, the complainant handed over the gold ornaments to the accused.

5. The said Salim Khan and the accused appear to have been residing at the relevant time alongwith the complainant, but moved away to another house constructed by them around May, 2007, and when the complainant asked the accused for the return of the said ornaments to be worn by her on an occasion of the marriage of her relative on 3.11.07, 4.11.07 and 17.11.07 the accused told the complainant that he would first inform her husband the said Salim Khan and take his permission, before returning the gold ornaments, to the complainant. Thereafter the complainant filed a police complaint but no cognizance of it was taken by the police although the offence was cognizable, and, presumably that was done because the ornaments were to be returned after the husband of the accused returned from abroad.

6. The complainant examined herself in support of her case and two other witnesses namely the complainant's servant by name Zaina Bi Shaikh and Head Constable Shamsundar Gawas who had recorded the complainant's statements earlier at the instance of Police Inspector Shri Monserratte who was looking into the matter of the complaint of the complainant.

7. The accused in her statement recorded under Section 313 of the Code (Code of Criminal Procedure, 1973) had stated that the gold ornaments were handed over to her by her husband Shri Salim Khan. She gave the description of the gold items given to her and further stated that her husband was then working abroad and when he would return from abroad, she would hand over the same to her husband Shri Salim Khan.

8. The Learned trial Magistrate referred to the evidence of the complainant where she had stated that the accused had refused to return back the gold ornaments saying that she was not in possession of the same and this statement, according to the Learned Magistrate, was contrary to the averments made by the complainant, in her complaint, wherein the complainant had stated that the accused had informed her that she would inform her husband Salim Khan and take his permission, before returning the gold ornaments to the complainant. The Learned Magistrate also referred to the evidence of Pw2 Zaina Bi Shaikh and observed that the said Pw2 had admitted that the complainant was not in normal condition and her mental position was not well since January, 2008. The Learned Magistrate held that due to old age and sickness, the complainant could not corroborate the contents of the complaint as the complainant had stated that she had not approached the police and she had also not given any statement to the police. As regards the statement of the accused recorded under Section 313 o