PUBLIC PROSECUTOR Vs. PAKKIRISWAMI

JUDGEMENT

(1.) This is an appeal against the acquittal of two accused persons who were charged under Secs.457 and 380, I..P.C., with housebreaking by night and theft in a building before the Second Class Magistrate of Tiruvarur. Efforts to obtain the presence of the 2nd accused have so far failed, so that I take the case only as against the 1 accused.

(2.) There is no question that the house of the first prosecution witness was broken into on the 19 August, 1928, and a quantity of property stolen. But there is no direct evidence to connect the present respondent with the theft. He was arrested--on what grounds does not appear--at Negapatam on the 26 August as he was leaving by boat for Singapore, and from there he was taken to the Police Station at Kivalur and the Sub-Inspector, P.W. 5, who effected the arrest says that he obtained a statement from him that same evening with regard to the whereabouts of some of the property. He was kept in the lock-up during that night and the next morning another witness, the Village Munsif of Kivalur, P.W, 6, spoke to the prisoner and also was the recipient of similar information. The respondent was then taken to the place which he had indicated, which is a tank in Kuthur, the village in which the housebreaking and theft had taken place. The Village Munsif of Kuthur. P.W. 9, was then sent for and, at the Sub- Inspector's suggestion, questioned the respondent and was told about the secreted property. A search based upon the information given was then undertaken and a number of vessels, M.Os. 1 to 9, were recovered from the bed of the tank. These facts were recorded in Ex. A, written at the spot. It is further to be noted that there is correspondence between the description of these articles and certain of the articles mentioned in Ex. 1 on the 22nd August, 1928, by P.W. 1 as amongst the stolen property.

(3.) That is the whole of the prosecution evidence, and the first point that occurred to me was that it was not legally sufficient for the purpose of convicting the respondent of housebreaking and theft. As authority for that position may be cited Queen-Empress V/s. Gobinda (1895) I.L.R. 17 A. 576 which deals with the case in which an accused person pointed out the place where certain stolen property was concealed. It was a place, as is the tank in the present instance, which was not the peculiar property or within the sole control of the accused, but accessible to the public in general, and as the learned Judges very reasonably remarked. if it is left doubtful whether the accused or some other person concealed the stolen article, or that the accused obtained in some other way information that the stolen property was in the place where it was found,