Mere recovery of stolen articles from the accused, without independent corroborating evidence, is insufficient to establish guilt beyond a reasonable doubt.

DEEPAK MAHESHWARI, J.

1. This revision petition has been preferred on behalf of accused petitioners Shankariya, Sampatiya, Kamsiya, Sharmiya to challenge the judgment dated 15.6.2016 passed by learned Addl. Sessions Judge No.1, Bhilwara Camp Gangapur in Criminal Appeal No.39/2015 whereby he has upheld the judgment dated 08.06.2015 passed by the Court of Addl. Chief Judicial Magistrate, Gangapur, District Bhilwara, convicting the accused petitioners for the offence punishable under Sections 457 and 380 I.P.C. and awarding them sentence of simple imprisonment for a period of one year for the offence under Section 457 I.P.C. and the same sentence along with a fine of Rs.500/- for the offence under Section 380 I.P.C.

2. Learned counsel for the petitioners has argued that the accused petitioners have not been named in the FIR. No person has seen them while committing house trespass and house breaking by night at the place of occurrence. The prosecution has failed to examine any independent witness of the recovery alleged to have been made from the accused petitioners. The allegation is that accused petitioners have committed theft and house breaking in two other shops also but no witness to that effect has been examined. The instrument of committing house breaking is alleged to be an iron rod (Sariya) but that has been recovered from an open place. No independent witness of recovery thereof has been examined. No site plan of the recovery place has been drawn in this regard. On the basis of the arguments advanced, learned counsel for the petitioners submitted that the judgments impugned dated 15.6.2016 passed by learned appellate Court and the judgment dated 08.06.2015 passed by learned trial Court are liable to be quashed and set aside and the revision is liable to be accepted accordingly.

3. Learned Public Prosecutor has vehemently opposed the prayed made by learned counsel for the petitioners. He argued that during the night of the theft itself, the stolen articles have been recovered from the possession of accused Shankariya and Sampatiya. The accused persons and the stolen articles recovered from them have been identified by complainant PW-1 Dalchand and PW-5 Gopilal. Learned Courts below have rightly drawn the inference that these accused have stolen these articles from the Shiv temple on the basis of the recovery made from their possession soon after the occurrence. The investigating Officer PW-6 Jakir Akhtar has corroborated the steps taken by him during investigation including recovery from the accused persons. Iron rod (Sariya) used by the accused persons in committing the offence of house breaking has been recovered on the information given by accused Sharmiya by way of recovery memo Ex.P/11. His argument was that in the light of the evidence available on record, learned Courts below have correctly convicted the accused petitioners and the sentence awarded to them is commensurate with the nature and gravity of the offence. Hence, the revision petition is liable to be dismissed.

4. I have given thoughtful consideration to the arguments advanced by the rival sides. I have also perused the oral as well as documentary evidence available on record and the reasons assigned by learned Courts below for convicting the accused petitioners and awarding the sentence by the judgments impugned.

5. As per the prosecution story, the allegations against the accused petitioners are that during the intervening night of 2nd and 3rd December, 2002, they committed theft in the Shiv temple situated in village Gurla while committing housing breaking by night and have stolen away an amplifier, mouth organ, cassette, two silver ornaments (Mukut) and the cash kept in the cash box of the temple. It is also alleged that during that night the accused committed house breaking and theft in nearby shops. But suddenly, the people woke up and caught hold of two of the thieves and rest of them ran away. PW-1 Dalchand has narrated these facts during his