(1.) THESE revision petitions are by the convicted accused nos. 1 to 3 in Sessions Case 11/70 on the file of the Asst. Sessions Judge, trichur. Cr. R. P. 416 is by the 1st accused, Cr. R. P. 415 by the 2nd accused and Cr. R. P. 335 by the 3rd accused. 1st accused has been convicted under s. 457,461 and 380 read with S. 75 IPC. and sentenced to R. I. for 4 years and to pay a fine of Rs. 200/- under S. 380 read with S. 75, to R. I. for 2 years and to pay a fine of Rs. 200/-under S. 457 and to R. I. for 2 years under S. 461, the sentences are to run concurrently. Accused Nos. 2 and 3 are convicted under s. 411 and 414 IPC. and they are each sentenced to R. I. for 2 years under S. 411 and another two years under S. 414. Here also the sentences are to run concurrently. The conviction and sentence have been confirmed in appeal by the sessions Judge, Trichur.
(2.) THE charge against the accused was that the 1st accused committed theft of some watches on the night of 261169 from the Kerala watch House, Trichur belonging to pw. 1 and the other two accused were found in possession of the watches knowing them to be stolen property. THE entry into the shop is stated to have been made through the ventilator in the back of the building. THE shop room has a wooden partition and according to pw. 1 the watches were kept in the front room. THE thief having entered the shop through the back ventilator seems to have made a hole in the wooden partition and secured his entry into the front room where the watches were kept. For a long time there was no clue as to the culprit. On 30 3 70, however, the 1st accused who is a previous convict was arrested on suspicion by pw. 24, the Crime Branch circle Inspector near the THEvara bridge at Ernakulam at about 8-30 p. m. and from his person four wrist watches were recovered and on information elicited from him a few other watches, MOs. 1 to 24, were recovered from various witnesses to whom they were sold by the 2nd accused. THE information alleged to have been supplied by the 1st accused is that he bad sold the watches to the 2nd accused (the total number of watches alleged to have been stolen was 28, of which 20 were stated to have been sold to the 2nd accused and it was the 2nd accused who, according to the prosecution, had sold the other watches to various witnesses) THE 3rd accused is a person hailing from Thalayolaparamba, near Vaikom. He stated that 3 watches were sold to him by the 2nd accused; but he never knew that it was stolen property. THE 2nd accused stated that a few watches were sold to him by one Hariharan and he never knew that they were stolen watches. THE 1st accused denied the charge in toto. Even his arrest by pw. 24 was denied by him. THE learned trial judge basing mainly on the recovery has entered the conviction.
(3.) THERE is also the further fact that the prosecution has not succeeded in proving that the articles recovered from the various persons were the articles which were in fact stolen from Pw1's shop. According to Pwl, about 40 to 50 watches were stolen from his shop on the night of 261169 (the total number recovered was only 28, of which one did not belong to them ). Of the 40 to 50 watches a vast majority were watches entrusted to them for repair. The rest were new watches exposed for sale. They were kept in the show-case and the watches that were entrusted to them for repair were kept in the drawer of the table. This statement of Pw1 is not proved at all in the case. According to him, the receipt book maintained in the shop contains the description of the watches; but no receipt book was produced either before the police or before court. The new watches exposed for sale are, according to him, covered by invoices; but no invoices were produced. Thus the best evidence regarding identity of the watches is withheld. Mere statement that the watches were Henri Sandoz, Favre-leuba, fortis, Camy etc. , will not suffice, because these varieties of watches must be available for sale in other shops also. In the absence of evidence to show that the watches lost by him were in the shop on the night of 26 111969, it is not possible to draw the presumption from the hole made in the wall that watches were stolen from there. From the fact that the ventilator was tampered with or that a hole was made in the wooden-partition one cannot draw the presumption that theft was committed therefrom. Those circumstances can no doubt be presumptive evidence of house-breaking. For entering the further finding that a particular number of watches falling under particular categories were stolen, further materials are required and it is those materials that have purposely been withheld. The trial judge would observe: