HIRA GOBAR Vs. EMPEROR

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 has 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 Narottam. The learned trial Magistrate acquitted accused Nos. 2 and 3 on the ground that the evidence of Moti Narottam, 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 Khetwadi; 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. The argument in the appeal has mainly ranged round the two circumstances which the trial Magistrate has relied upon as sufficiently corroborating the evidence of the accomplice as to the connection of accused No. 1 with the theft. The evidence which relates to the resemblance of the two foot-prints is not sufficient to corroborate the accomplice. A careful comparison of the foot-print with the tracing on the glass does not yield any better result than that the two footprints may be of the same man. It is impossible to say with any degree of confidence on a comparison of these prints that the mark which was observed on the table in the house of the complainant on the night of the 11th was really the mark of the right foot of accused No. 1. There was some argument as to the admissibility of the evidence of the expert examined on behalf of the prosecution to establish the identity. But it is not necessary to go into that question. Assuming his evidence to be admissible, it is clear that his opinion cannot be accepted as establishing the identity of the appellant as the foot marks do not coincide with sufficient accuracy. In the course of the argument it was fairly conceded by the Government Pleader that he could not maintain that the two marks were sufficiently identical, and on a comparison of these two marks I have come to the same conclusion. The apparent resemblance between the two marks does not carry the case of the prosecution any further than the evidence of the accomplice.