Circumstantial evidence must establish a clear link between the accused and the crime; mere possession of recovered items without proof of ownership is insufficient for conviction.

JUDGMENT

Vinod Chandran, J.

The 'night-watchmen' are a lot, generally ill- equipped and ill-paid, who often stake their lives to offer nothing more than a sense of security to those, whose property they watch over. Little resistance can be offered to a concerted robbery by the sole emaciated man, we often see armed with a smouldering mosquito coil on the veranda of shop rooms; where they spent the night guarding over the effects of a man or woman slumbering in their opulent homes, on soft beds. We have here an incident in which a night watchman, guarding a jewellery, was murdered and his body dumped in a well in the course of a dacoity executed in the night of 05.05.2011 or the wee hours of the sixth.

2. There were fourteen arrayed as accused in the trial, wherein documents were numbered as Exts.P1 to P99 with multiple documents under the same number differentiated by alphabets through 90 witnesses, who also marked 128 material objects with many marked as one series. The defence examined two witnesses and marked ten documents as Exts.D1 to D9 & D9(a). The Court too marked four exhibits. A7, A9 and A10 to A14 stood acquitted. A2 expired before trial and A4 & A5 are still absconding. A1, A3, A6 & A8 are the appellants before us. A3 was convicted under Sec.449, 392, 302 and 120(B) read with 392 of the Indian Penal Code [for brevity, 'the IPC ']. A1, A6 & A8 were found guilty under Sec.120(B) read with Sec.392 . The case set up by the prosecution is entirely hinged on circumstantial evidence. In the present appeals, we are only called upon to decide on the evidence led, to establish the culpability of the appellants herein; one of whom (A3) is convicted for the offence of murder in the course of house trespass, robbery and for conspiracy. The other appellants are convicted for the offence of robbery and the conspiracy leading to the same.

3. Sri.P.Vijayabhanu, learned Senior Counsel, instructed by learned Counsel Smt. Sanjana Rachel Jose appeared for A1 & A6. Sri. Babu S.Nair, learned Counsel, appeared for A8 and Sri. Pranoy Kottaram, learned Counsel, appeared for A3.

4. Sri. Vijayabhanu argued that there is not even one circumstance proved against any of the accused. The evidence led on conspiracy falls short of proving it and there is nothing connecting the crime to the accused. The only evidence led is of recovery of the thieved ornaments, some of which were alleged to have been converted to gold ingots. There can be no conviction for robbery or murder based solely on recoveries; which in this case are not reliable to even establish possession of stolen property. There is nothing to prove that the recovered ornaments were those thieved from the jewellery. The robbery is alleged to have been made from a jewellery, which has a statutory obligation to maintain a Stock Register. But for the identification made by the owner of the jewellery, there is no proof offered of the possession and ownership of the articles recovered. A manual Stock Register is said to have been handed over to the Investigating Officer [for brevity, 'the I.O'], which was not produced before Court nor were the recovered articles verified and tallied with the stock held by the jewellery as per the register. Though an identifying mark is referred to by certain witnes