EMPEROR Vs. HIRA GOBAR

JUDGEMENT

(1.) In this case three persons were charged with house-breaking at night and theft of property worth about Rs. 22,000 said to have been committed in the bungalow of the complainant on the Walkeshwar Road on the 11th February last year. The theft and the house- breaking alleged were undoubtedly committed. A part of the property stolen was later on traced to one Moti Narottam residing in the Palanpur territory, and as a result of the investigation that followed upon this tracing of the property the present accused who belong to the Kaira District, were sent up for trial to the Second Presidency Magistrate.

(2.) The property which has been traced bad been identified, and there can be no doubt that the property traced to Moti and the witness Shiva in the case formed part of the property stolen from the house of the complainant. The principal evidence against these three persons was the evidence of the witness Moti Narotam. The learned trial Magistrate acquitted accused Nos. 2 and 3 on the ground that the evidence of Moti Narotam, who was undoubtedly an accomplice, required independent corroboration and that there was no such corroboration in any material particulars, as regards these two accused persons. As to the accused No. 1 the trial Magistrate held that such corroboration was afforded first by the close resemblance between the foot-print of accused No. 1 and the tracing of a foot-mark which was found on a table in the house of the complainant immediately after the offence, and secondly, by the evidence of the Inspector of Police to the effect that the accused No. 1 pointed out on the 5th June the house which he had entered on the night of the offence and the various places in the house connected with the offence, and accordingly convicted him. The accused No. 1 has appealed to this Court and the points in the appeal relate to the admissibility and sufficiency of the evidence relied upon by the learned Magistrate as corroborating the story of the accomplice so far as it affects the appellant.

(3.) I may mention at the outset that the general account given by the accomplice appears to me, as it appeared to the trial Magistrate, to be substantially true, and that under the circumstances corroboration as to the connection of the accused with the house-breaking and theft is needed. It is proved in the case that about this time Shiva occupied a house in Khet- wadi, that the three accused used to stay with him or to visit him and that probably they were in Bombay at the time, when this theft was committed. But that circumstance does not corroborate the story of the prosecution that the three accused were concerned in the theft on the night of the 11th of February. In fact the trial Magistrate has not treated the circumstance in that way as to accused Nos. 2 and 3, and it is equally ineffective as regards accused No. 1.