STATE OF KARNATAKA Vs. ABDUL GAFFAR

JUDGEMENT

(1.) I have heard the learned SPP, on behalf of the State as also the respondent's learned Advocate Sri. Hegde.

(2.) THE charge against the accused is that, on 14-10-1992 at about 11 p. m. he is alleged to have broken into a temple and committed theft in respect of a copper pot and a copper offering box which contained a sum of Rs. 200/- in cash. The complaint was lodged by P. W. 3 who is the trustee on 19-10-1992 at 5 p. m. and it is alleged that on 1-12-1992 the Police arrested the accused. In the course of investigation, he is alleged to have made a voluntary statement pursuant to which he lead the police and the panchas to his house from where he has produced the two items of property. There is no mention with regard to any recovery of any cash amount. The trial Court had charged the accused for having committed offences punishable under Sections 457 and 380, IPC. , as also under Section 411 IPC. , The reason why the trial Court acquitted the accused was because apart from the recovery evidence, there is virtually no other evidence in this case and as far as this is concerned, the recovery panchanama as also the evidence of the I. O. who is P. W. 6 indicate that the recovery was effected on the morning of 1-12-1992 between 8 and 9. 15 a. m. and the evidence of P. W. 1 who in turn states that, since he had to go to the Tahsildar office on that day he was called by the Police between 10 and 11 am. In view of this contradiction, the trial Court held that the evidence is doubtful and acquitted the accused. The property in question was ordered to be returned to the temple authorities. The State has filed an appeal assailing the correctness of the order of acquittal.

(3.) THE facts in this case are very simple and the evidence is relatively restricted. The learned SPP, submitted that P. W. 1 who is the pancha has not turned hostile, that he is a respectable person from the area and that the only minor discrepancy is with regard to the timing. On the other hand, he has fully corroborated the prosecution case by pointing out that pursuant to the voluntary statement that the accused had made that he lead the Police and the Panchas to his house and that he produced the two items of property from his house. This part of the evidence remains unshaken even in cross-examination. The learned SPP. , submitted that, this evidence along with the evidence of the I. O. , who is P. W. 6 conclusively establishes that two items of the property belonging to the temple were recovered at the instance of the accused from his custody. He makes a two fold submission. The first being that the temple lock was found broken open and it was clear that this was a case of house breaking, the object being to commit theft which is established from the evidence of P. W. 3 who has pointed out that the two items were removed from the temple on that night. His submission is that, in the absence of any explanation from the accused the only legitimate inference that can be drawn is that nobody other than he has broken into the temple and committed theft of the two items. Secondly, he submits that in so far as the identity of the property is established and it has been held to be property belonging to the temple which was involved in the commission of an offence that having retained that property and dealt with it knowingly, the accused is also liable for the offence punishable under Section 411 IPC. ,