The prosecution failed to provide reliable identification evidence for the accused, leading to their acquittal due to reasonable doubt.

JUDGMENT :

Johnson John, J.

The appellants are accused Nos. 4 to 6 and they are challenging the conviction and sentence imposed on them for the offences under Sections 452 , 382, and 395 r/w 34 IPC as per common judgment dated 08.05.2007 in S.C. Nos. 181 of 2004 and 664 of 2005 on the file of the Additional District and Sessions Judge, (Fast Track Court-I), Thiruvananthapuram.

2. As per the prosecution case, on 15.11.2001, at about 9 p.m., accused Nos. 1 to 6, in furtherance of their common intention to commit robbery, trespassed into the house of the de facto complainant, armed with dangerous weapons and the second accused threatened to cause the death of PWs 1 and 2 by pointing a dagger and the third accused threatened PWs 1 and 2 by pointing a sword and the accused persons committed theft of gold ornaments, wrist watches, camera, mobile phone, torch, cordless phone, stereos, VCP and currency notes. It is alleged that the second accused robbed the thali chain of PW2 weighing 4 1⁄2 sovereigns and also ear rings weighing half sovereign. The accused persons also committed theft of currency notes worth Rs.50,000/- kept in the drawer of the almirah and they are alleged to have committed theft of articles and currency notes together worth Rs.1,24,800/- and thereafter, entrusted the gold ornaments to accused Nos. 7 and 8 and thereby, committed the offences as aforesaid.

3. When the case as against accused Nos. 4, 5 and 6 were committed to the Sessions Court, the same was taken on file as S.C. No. 181 of 2004 and when the case as against the first accused was committed to the Sessions Court, the same was taken on file as S.C. No. 664 of 2005. The trial court clubbed both the cases and charge was framed against accused Nos. 1 and 4 to 6 and they pleaded not guilty to the charge. Subsequently, the first accused absconded and the trial court decided to proceed with the trial of accused Nos.4 to 6.

4. From the side of the prosecution, PWs 1 to 17 were examined and Exhibits P1 to P13 and MOs I to V were marked. No evidence adduced from the side of the defence.

5. After trial and hearing both sides, the trial court found accused Nos. 4 to 6 guilty under Sections 452 , 382 and 395 r/w 34 IPC and they are sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo rigorous imprisonment for three months each under Section 452 IPC. For the offence under Section 382 IPC, they are sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.3,000/- each and in default of payment of fine, to undergo rigorous imprisonment for four months each. For the offence under Section 395 IPC, they are sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year each.

6. During the pendency of the appeal, the first appellant/4^th accused died and in spite of notice, none of his legal heirs turned up to file impleading petition.

7. Heard Sri. Paul Baby, the learned counsel representing the learned counsel for the appellants and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the State.

8. The learned counsel for the appellants argued that the evidence of PWs 1 and 2 regarding the occurrence and identity of accused Nos. 4 to 6 are not at all reliable and apart from the evidence of PWs 1 and 2, there is no other legally admissible evidence against the appellants. It is pointed out that no recovery is effected on the basis of the disclosure statement of accused Nos. 4, 5 and 6 and the recovery effected on the basis of the disclosure statement of