The prosecution must prove the ownership and identity of the stolen property beyond reasonable doubt, particularly in theft cases involving generic items.

The revision petitioner herein is the second accused in C.C. No. 650 of 2001 of the Judicial First Class Magistrate Court-II, Mananthavady. He and three others faced prosecution in the court below under Sections 457 , 380 and 414 of the Indian Penal Code on the allegation that at about 11.00 p.m. on 05.03.1998, they gained entry into the hill produce shop of one Ibrahim at Kavumandam in Wayanad District, by making a manhole on the rear wall of the shop, and they committed theft of 50 Kgs of pepper from out of the three quintals of pepper kept there. The fact of theft was noticed by the shop owner on the next day when he came to open the shop, and without delay, he filed complaint before the police. During investigation, the police arrested four persons, and recovered some quantity of pepper, and some instruments. After investigation, the police submitted final report against four accused. The charge against the 4th accused is specifically under Section 414 IPC , and as against the others, it is under and 380 .

2. The case against the accused Nos. 1 and 3 was split up and refiled when they remained consistently absent. The case then proceeded against the accused Nos. 2 and 4. They pleaded not guilty to the charge framed against them. The prosecution examined 9 witnesses and proved Exts.P1 to P8 documents in the trial court.

3. When examined under Section 313 Cr.P.C., the two accused denied the incriminating circumstances, and projected a defence of total denial. They did not adduce any evidence in defence.

4. On an appreciation of the evidence, the trial court found the 4th accused not guilty, and he was acquitted. But the second accused was found guilty under Sections 457 and 380 IPC . On conviction, he was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs. 1,000/- under Section 457 , and to undergo another term of rigorous imprisonment for two years and to pay a fine of Rs.1,000/- under Section 380 .

5. Aggrieved by the judgment of conviction dated 04.02.2004, the second accused approached the Court of Session, Wayanad, with Crl.A. No. 69 of 2004. In appeal, the learned Sessions Judge, confirmed the conviction and sentence, and accordingly, dismissed the appeal. Now the second accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.

6. Pending the revision, a report was called for from the District Probation Officer, Wayanad, regarding the antecedents and the present circumstances of the revision petitioner. The report submitted by the Probation Officer shows that the revision petitioner is not a person of bad antecedents, and that he has been now living a very peaceful life without involving in any criminal or antisocial activities. Whatever that be, let me see what is the evidence in this case, and whether the conviction can be sustained.

7. Of the nine witnesses examined in the trial court, the main witnesses as far as this revision petition is concerned, are PW1, PW3 and PW9. PW1 is the defacto complainant who filed complaint alleging theft of pepper, PW9 is the Assistant Sub Inspector who arrested the revision petitioner and recovered some quantity of pepper, and PW3 is an attestor to the Ext.P3 recovery mahazar as per which some quantity of pepper was recovered at the instance of the second accused.

8. The case of PW1 in the Ext.P1 FI Statement is that when he opened his hill produce shop on 06.03.1998, he found some 50 kgs of pepper missing from the total quantity of about 3 quintals kept there, and he also found a manhole created on the rear wall of the shop. Accordingly, he filed complaint before the police. Later, some quantity of pepper was recovered by the police during investigation, and 20 Kgs of pepper was released to him on bond. He does not say anything about the other quantity of 9.5 Kgs alleged to have been recovered at the instance of this revision petitioner. This is not a case of theft of any definite arti