The prosecution must prove ownership and possession in crimes involving trespass and theft, and recovery evidence alone is inadequate for conviction.

ORDER

Dated this the 7th day of February 2020 Petitioner is the accused in C.C.No.355/07 on the file of the Judicial First Class Magistrate(JFCM)-V, Kozhikode, arising out of Crime No.157/07 of Nallalam Police Station registered for the offences punishable under Sections 457 and 380 read with 34 of I.P.C. 2. By judgment dated 19.03.2008, the learned Judicial First Class Magistrate-V, Kozhikode convicted the first accused for the offence under and 380 of IPC and sentenced to undergo rigorous imprisonment for one year for the offence under Section 457 of and to pay a fine of Rs.500/- in default, to undergo simple imprisonment for six months more and to undergo rigorous imprisonment for one year and also to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for a period of six months for the offence punishable under Section 380 of . Both the above sentences were ordered to run concurrently. The 2nd accused was acquitted under Section 248 (1) of Cr.P.C. Challenging the conviction and sentence, the 1st accused preferred Cr.A.No.349/2008 before the Sessions Court, kozhikode. By Judgment dated 29.10.2009, the learned Session Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the 1st accused preferred this revision petition.

3. The prosecution case in brief is that, on

28.02.2007 at 2.30 a.m, accused 1 and 2 in furtherance of their common intention to commit theft, broke open the door of the house bearing door No.XX/31 of Cheruvannur Panchayath, which is occupied by CW1, and committed theft of an amount of Rs.5,000/-, two anklets rolled gold worth Rs.600/- and thereby committed the aforesaid offences.

4. During the trial PW1 to 5 are examined and marked Exts. P1 to P6 and MO1 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313 (1) (b) of Cr.P.C. Their defence was one of total denial. However, no defence evidence was adduced.

5. The main allegation against the accused is that, he committed house trespass by breaking open the door of the house bearing door No.XX/31 of Cheruvannoor Panchayath. When lurking house trespass or house breaking by night in order to commit theft is alleged, it is the duty of the prosecution to prove that the house is owned by one of the prosecution witnesses. Evidently, CW1 and 2 were cited by prosecution to prove that they had been in possession and enjoyment of the building bearing door No.XX/31 of Cheruvannoor Panchayath. They were not examined by the prosecution. PW1 is a neighbor of the 1st accused, who had an occasion to see the police moving to the house of the 1st accused. He is not an eye witness to the occurrence. According to him, he had not signed the seizure mahazar as alleged by the prosecution. PW2 is the yet another witness alleged to have been signed the scene mahazar. He also turned hostile to the prosecution. PW4 is the head constable of Nallalam Police Station, who registered Ext.P1 on the strength of Ext.P4 statement given by CW1. As indicated earlier, CW1 was not examined. Hence the only remaining witness is PW5. PW5 conducted investigation and filed the final report. According to him, on 25.05.2007 at 8.00 P.M, he had arrested the 1st accused. On being questioned in police custody, PW5 stated that the 1st accused confessed his involvement in the crime. Accordingly, his Ext.P5 confession statement was recorded. On the basis of Ext.P5 confession statement and as led by the accused, PW5 proceeded to the house of the 1st accused bearing door No.XX/31 of Cheruvannoor Panchayath and recovered MO1 series anklets in accordance with law.

6. The court below relied on the statement of PW5 and the recovery effected in accordance with Section 27 of the Evidence Act 1872 (herein after referred to as the Act), and entered a finding that the prosecution has succeeded in proving the offence against the accused beyond reasonable shadow of the Act. It is settled princip