Mere recovery based on disclosure statements is inadequate to establish guilt; additional evidence linking recovered items to the crime is necessary.

JUDGMENT :

1. The appellants are the accused numbers 3 and 5 in S.C. No. 1179/2005 on the files of the Court of Additional Sessions Judge (Adhoc) III, Kollam. The aforesaid case arises from Crime No. 96/2004 of Paravur Police Station. As per the final report submitted therein, six persons were implicated as accused persons alleging offences punishable under section 395 of the Indian Penal Code (IPC).

2. The prosecution case is as follows:

On 10.3.2004 at about 1.30 p.m. accused persons came in an autorickshaw bearing registration No. KL01 J 3930, driven by the 5th accused near the house of CW1 taking building No. 13/134 of Paravur Municipality. Thereafter, accused Nos. 1, 3, 4 and 6 trespassed into the residence of CW1 after breaking open the door at the eastern side and keeping the 2nd and 5th accused outside the house to guard them. Thereafter, they committed theft of 44 sovereigns of gold ornaments and currency note worth Rs.1,000/- kept locked in a suitcase on the table placed in the bedroom, including two sovereigns of gold bangles and three sovereigns of gold chain with locket kept inside the almirah in the dining room thereby committed theft of gold ornaments and currency notes worth Rs.1,55,000/-. The investigation was conducted by the Sub Inspector of Police, Paravur and the final report was submitted before the Judicial First Class Magistrate Court, Paravur, where it was taken into file as C.P.No. 58/2005. Later, the matter was committed to the Sessions Court, Kollam, and the same was made over to the Additional Sessions Court (Adhoc) III, Kollam, where it was tried as S.C. No. 1179/2005. Even though the offence alleged against the accused persons in the final report was under section 395 IPC, the learned Sessions Judge framed the charge against the accused persons for the offences punishable under Sections 380,454 and 461 r/w. Section 34 of the IPC.

3. In support of the prosecution case, PWs.1 to 15 were examined, Exhibits P1 to P23 were marked, and material objects 1 to 4 were identified. After completion of the prosecution evidence, the accused persons were examined by the court under section 313 of the Code of Criminal Procedure Code (Cr.PC) and incriminating materials brought out during the trial were put to them. All of them denied the same and pleaded not guilty.

4. After appreciating the materials placed on record, the learned Sessions Judge arrived at the finding that the appellants herein, who are accused Nos.3 and 5, are guilty of the offences, whereas the other accused were found not guilty. Consequently, the appellants herein were sentenced to undergo simple imprisonment for four years under section 380 of the IPC and two years under section 454 and 1 year under section 461 r/w section 34 of the IPC. This appeal is submitted in such circumstances challenging the aforesaid conviction and sentence.

5. The learned counsel for the appellants has relinquished the vakkalath; consequently, notices were issued to the appellants. However, service of notice to the 1st appellant was not returned after service of notice, whereas notice to the 2nd appellant returned unserved with a postal endorsement ‘not known’. In such circumstances, as per the order dated 25.11.2021, this Court appointed Advocate Pooja Pankaj as Amicus Curiae to assist the court in considering the appeal on merits. Accordingly, Advocate Pooja Pankaj placed her arguments before this Court in support of the contentions raised by the appellants. Sri. Ranjit George, Senior Public Prosecutor, appeared for the State.

6. The learned Amicus Curiae contended that the conviction and consequential sentence imposed upon the appellants are without any justifiable reasons and are liable to be interfered with. It is pointed out that the conviction was ordered by the learned Sessions Judge by merely placing reliance upon the disclosure statements allegedly made by the appellants, which led to the recovery of gold from PW2, PW4 and PW11. It is further contended by the le