RAJU Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED 1 to 6 in Calendar Case 11 of 1963 on the file of the Additional First Class Magistrate, Peermade who have been convicted of house breaking and theft and whose appeal before the Sessions Judge, Kottayam has been dismissed have filed this revision petition. The first accused is the tea maker in Tea factory belonging to the Malayalam Plantations at Peermade. The second accused is a factory labourer, accused 3 and 4 are watchmen in the factory and accused 5 and 6 are strangers belonging to Mundakayam alleged to have been engaged by the first accused for the commission of the theft.

(2.) PW. 2, Mr. Marr is the superintendent of the estate. pw. 3 is a labourer working in the factory. According to the prosecution on 12 62 at about 4 p. m. the first accused called pw. 3 to his residence. Accused 2 to 6 were then present there. The first accused asked pw. 3 whether he was going to join them in committing theft of tea from the factory. pw. 3 agreed but he now deposes that he agreed to join them not because he wanted to commit theft but because he wanted to detect the commission of theft which was taking place in the factory. All the accused and pw. 3 went to the factory at about 10-30 P. M. The 6th accused had taken some gunny bags from the house of the first accused. According to pw. 3 he was stationed at the gate to watch if anybody was coming. The rest of the accused proceeded to the factory, the first accused opened the main door of the factory and all of them got inside, a little later the first accused alone came out, locked the door from outside and went back to his house.

(3.) ELABORATE arguments were addressed regarding the case against each of the accused and learned counsel strenuously contended that the courts below have not considered the evidence against each of the accused separately and if the evidence is properly analysed it would be found that there is no evidence worth the name against accused 1 and 3 and in any view of the case they at least ate entitled to an acquittal. I will now deal with the case against each of the accused. The only evidence against the first accused is the evidence of pw. 3. If pw. 3 is an accomplice and if there is no corroboration accused 1 and 3 would be entitled to an acquittal. On his own evidence that he agreed to join in committing theft of tea dust from the factory and proceeded along with other accused and kept guard as required by them pw. 3 satisfies the test of being an accomplice. An accomplice is a person who is a participant in the commission of the actual crime charged against the accused. His subsequent evidence in court that he had a purpose in joining the other accused will not take him out of the category of accomplice witnesses. It is easily said that he joined in the crime to detect thefts taking place in the factory. It is difficult to understand why of all persons pw. 2 had entrusted this witness with the mission. The evidence of pw. 3 that he participated in the crime which alone gave him the opportunity to bear witness to the occurrence seems to be extremely doubtful. It is hardly likely that the first accused having specially got two persons from Mundakayam and three other coolies including the watchman from the factory would have made use of a person like pw. 3 for services of the nature which pw. 3 claims to have performed. pw. 3 was only asked to remain at the gate which work could easily have been done by the third accused who is a watchman in the factory and it is surprising that at the time when pw. 2 reached the factory the third accused in fact was seen doing his duty as watchman in front of the factory. The evidence of pw. 3 reads extremely artificial. If really he had witnessed the incident and he was the person who gave information to Pw. 2 and he had told Pw. 2 that the first accused had opened the main door of the factory and led the other accused inside and that information was conveyed by pw. 2 to pw. 1 the first informant the name of pw. 3 would certainly have found a place in the earliest complaint Ext. P1. I have carefully gone through the evidence of pw. 3 and I must frankly say that I am not at all impressed by his evidence. Now assuming that pw. 3's evidence can be accepted the first question that would arise is whether it is corroborated in material particulars with regard to the participation of the accused concerned.