Recovery evidence alone cannot support a conviction without corroborating witnesses identifying the accused.

ORDER

Under challenge in this revision petition is the conviction and sentence rendered against the revision petitioner under Sections 457 , 461 and 380 of IPC .

2. The revision petitioner is the second accused in C.C.No.124 of 2011 on the files of the Judicial First Class Magistrate Court-I, Ettumanoor. He stood trial before that court, along with other accused for committing the offences punishable under Sections 457 , 461 and 380 r/w 34 of IPC .

3. The prosecution case is that on 07.02.2009 at about 9.30 p.m, the accused, three in number, committed lurking house trespass into the house of PW1 situated in Andoor Kavala and broke open the front door of the house and thereafter, the steel almirahs kept in the bedroom and committed theft of currency notes worth Rs.32,000/-, 14 sovereigns of gold ornaments and 1½ sovereigns of diamond.

4. The trial court, on an appreciation of the evidence on record, found the first accused not guilty of the offences alleged and acquitted him. But it found the second accused guilty of committing the offences punishable under Sections 457 , 461 and 380 of IPC and convicted him thereunder. It sentenced the second accused to undergo simple imprisonment for a period of three years and to pay a fine of Rs.10,000/- under Section 457 of , simple imprisonment for a period of two years and to pay a fine of Rs.5,000/- under Section 461 of and simple imprisonment for a period of three years and to pay a fine of Rs.10,000/- under Section 380 of , all with default clauses.

5. The second accused carried the matter in appeal by filing Crl.A.No.198 of 2012 before the Additional Sessions Court-I, Kottayam. The said court, by judgment dated 31.03.2014, allowed the appeal in part and while confirming the conviction, modified the sentence to one of simple imprisonment for a period of two years and to pay a fine of Rs.10,000/- under Section 457 of IPC , simple imprisonment for a period of one year under Section 461 of and simple imprisonment for a period of two years and to pay a fine of Rs.10,000/- under Section 380 of , with default clauses.

6. Heard Adv.Sam Issac Pothiyil, the learned counsel for the revision petitioner and Adv.Maya M.N, the learned Public Prosecutor. Perused the records.

7. The learned counsel for the revision petitioner submitted that both the trial court and the appellate court have not appreciated the evidence in a proper perspective and has arrived at a wrong conclusion of guilt against the revision petitioner. He submitted that there is no substantive evidence to prove the prosecution case and the evidence of PW3 would go to show that the revision petitioner was not present at the time of alleged recovery. He further contended that none of the material witnesses have positively identified the revision petitioner in the dock and conviction cannot be based solely upon recovery evidence.

8. Per contra, the learned Public Prosecutor supported the impugned judgments and contended that there are no grounds to interfere with the same.

9. In the instant case, the evidence of PW1 and his wife PW2 would show that on 07.02.2009 at about 11.00 p.m, when they came back to their house, they found the rear side door of the house open and the almirahs kept in the bedroom broken. They understood that cash worth Rs.32,000/-, 14 sovereigns of gold ornaments and 1½ sovereigns of diamond kept in the almirahs were missing. Immediately, PW1 lodged Ext.P1 F.I.Statement before the police. Their evidence also show that later, in the month of October, the police had brought A1 and A2 along with MO1 and MO2 which they identified as their's. From the afore evidence, it can be safely considered that the prosec