The prosecution must prove the exact information leading to recovery of stolen property; failure to do so undermines the conviction.

ORDER

The revision petitioner is the sole accused in C.C.No.62/2007 on the files of the Judicial First Class Magistrate Court, Payyannur. He stood trial for committing the offences punishable under Sections 457 and 380 of IPC before that court and was found guilty, convicted and sentenced under Sections 454 and 380 of . The Trial Court sentenced the accused to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- under Section 454 , with a default clause and also for a period of one year and to pay a fine of Rs.3,000/-under Section 380 , with a default clause.

2. Aggrieved by the conviction and sentence, the revision petitioner/accused preferred Criminal Appeal No.468/2010 before the Sessions Court, Thalassery. As per judgment dated 06.07.2015, the learned Additional Session Judge-I, Thalassery confirmed the conviction and sentence passed against the accused and dismissed the appeal.

3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.

4. The learned counsel for the revision petitioner contended that, even if the entire evidence adduced by the prosecution is accepted as true, no conviction under Sections 454 and 380 of IPC can be sustained against the revision petitioner. He argued that, even though PW1 and PW3 have given evidence about the house-breaking and the missing of a television set, the prosecution has not adduced any convincing evidence to link the accused with the crime. He submitted that the entire prosecution case rests upon an alleged recovery of the television under Section 27 of the Evidence Act, which is not proved. He also argued that the independent witness examined to prove the recovery has turned hostile and the material object (T.V.) has not been produced before the Trial Court and identified by the material witnesses. Hence, he prayed that this revision petition may be allowed.

5. Per contra, the learned Public Prosecutor supported the impugned judgments and contended that there are no grounds to interfere with it. She argued that the evidence of PW7 coupled with Ext.P4 proves the recovery and there are no reasons to doubt it. She submitted that even if independent witness did not fully support the recovery, the evidence of PW7 on this aspect is credible and cogent. She further submitted that the evidence of PW1 and PW3 would prove that the theft had taken place from the house which was in their possession, after breaking it open, sometime between 26.08.2001 and 08.09.2001. She would also submit that the non production and identification of the television in the Trial Court is not fatal since, its identity has been proved by the evidence of PW1, PW7 and Ext.P2 document. Hence, she prayed that this Crl.RP may be dismissed.

6. On an appraisal of the rival contentions and the materials on record, at the outset itself, I may say that there is some merit in the contentions raised by the learned counsel for the revision petitioner. The prosecution case is that on 04.09.2001, at about 11 pm, the accused committed house-breaking and thereafter has thieved a T.V. kept there. The materials on record show that the entire prosecution case rests upon the recovery of the T.V. effected under Section 27 of the Evidence Act, on the basis of the alleged information given by the accused to PW7. An appraisal of the evidence of PW7 would show that he has not at all deposed the exact information he received from the accused, which had led to the alleged recovery. What is stated by PW7 and what is recorded by him as Ext.P4(a) do not tally with each other. It is a settled law, as held by the apex court inBodh Raj v. State of Jammu an Kashmir ( 2002 (8) SCC 45 ), that under of the Evidence Act, it is the bounden duty of the prosecution to bring in evidence the exact words/information given by the accused, which led to the recovery. The exact words spoken to by the accused have to be deposed by the investigating officer, thereby bringing into evidence the in