MOORTHY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE first accused in Crime No.124 of 2009 of Kidangoor Police Station who faced the prosecution alongwith A2 for the offfence punishable under section 457, 380, 411, 413 r/w 34 of IPC, is the appellant, since by judgment dated 21.12.2010 in S.C.No.141 of 2010, the court of Additional Sessions Judge (Ad hoc)-I, Kottayam, convicted and sentenced the appellant/1st accused for the offence under section 457 and 380 of IPC.

(2.) THE prosecution case is that, on 20.4.2009 at about 1.30 in the night, the appellant/1st accused in this case had committed house breaking in the house belonging to PW1, after breaking open the window of the house, bearing No.VI/12 of Kidangoor panchayat and thereafter committed theft of gold chain owned by PW5-Anitha and her small child aged 2 years and thus had caused a loss of Rs.24,000/- to PW1, and thus the appellant/1st accused has committed the offences under section 457 and 380 of IPC. It is the further allegation that the 2nd accused, being habitual receiver of stolen properties, had purchased the gold ornaments from the 1st accused for an amount of Rs.5,000/- and sold the same, and therefore the 2nd accused is liable to be punished for the offences under section 411 and 413 of IPC.

(3.) PW1 is the owner of the house in question where the accused trespassed and committed the theft. But PW1 is not an eye witness to the incident. When he was examined, he had deposed that the incident was taken place on 19.4.2009 in the night and according to him, on that day his elder daughter and child had came to their house for participating in a marriage in the neighbourhood and on the date of the occurrence at about 11 o' clock, himself, his wife and daughter and her child went to the bed. According to PW1, at about 1 o' clock in the night, the child began to cry and thus his daughter and wife woke up and his daughter saw a person standing inside the room flashing pen torch. According to PW1, when his daughter verified the chain worn by the child, it was found missing and the same has the weight of one sovereign. According to him, on further verification, his daughter's gold chain was also found missing. According to PW1, his daughter and wife made a hue and cry and at that time, the 1st accused escaped through the front door. It is the further evidence of PW1 that on verification they realised that the accused had entered into the room after breaking open the window by using a wooden plank. PW1 has also stated that he had purchased the gold ornaments for his daughter and child. PW1 has not claimed that, he had seen the appellant/1st accused as he woke up later.