IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 CRL.A.No. 156 of 2001 CC.34/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... APPELLANT/COMPLAINANT: AMARUDEEN SHAFI, S/O KOYAKUNJU, ROSE COTTAGE, VETTATTUVILA, KANIYAPURAM KADINAMKULAM VILLAGE BY ADV. SRI.G.GOPALAKRISHNAN NAIR SRI.R.BINDU (SASTHAMANGALAM) RESPONDENTS/2ND ACCUSED AND STATE: 1. KASALI, S/O ASANARU PILLAI, KONATHU VEEDU, KANIYAPURAM, THEKKEVILA MURI DO. VILLAGE 2. STATE, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.A.AHZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2008, THE COURT ON 25/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.156 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of February 2008 JUDGMENT This appeal which is at the instance of the complainant in a private complaint is directed against the order of acquittal passed by the trial court. The complaint was filed alleging commission of offences punishable under Section 457, 380 read with Section 34 IPC. Though the complainant had arraigned three accused, only accused No.2 faced the trial. The case against the other two was split up and refiled as C.C.950/00. 2. The case of the complainant was that at about 12.30 a.m. on September 1, 1992 the accused had trespassed into the residence after breaking open the door and committed theft of household articles like T.V., V.C.R., T.V.stand, radio, tape recorder, etc. worth about Rs.75,000/-. According to the complainant, he was constrained to file the above private complaint since the police had failed to conduct a proper investigation in the case. 3. The complainant was examined as PW1. Five other Crl.A.No.156 OF 2001 :: 2 :: witnesses were examined as PWs 2 to 6 and Exts.P1 to P5 were also marked on his side. Exts.D1 and D2 were marked on the side of the defence. 4. PW1 admitted before the court that he had not seen the alleged incident. But according to him, he came to know about the incident on the next day and immediately thereafter he had lodged a complaint before the Police. PWs 2 and 3 are stated to be two eye witnesses who deposed before the court that they had seen the accused committing the offence. It may be remembered that the alleged incident had taken place at about 12.30 a.m. According to PW2, he was coming back from a theater after watching a movie. When he reached near the residence of PW1, he saw a white Ambassador car parked in front of the house. Accused No.3 got out of the car and went inside the house. A little later, he came back with T.V., T.V. stand, typewriter and two gunny bags and put them in the car and drove away. In cross examination, this witness admitted that he did not call out for help or alert the nearby residents when he saw the accused committing the above offence. He Crl.A.No.156 OF 2001 :: 3 :: watched the entire incident standing a little away from the scene of occurrence. But according to him on the next day when he saw a crowd near the residence of PW1 he had gone there and told some people in general (and not to any person in particular) about what he had seen. He asserted that he had informed the Police personnel who were present there at that time. He specifically stated that it was the Circle Inspector of Police to whom he had passed on the information. According to this witness, people had gathered at the residence of PW1 in the morning. But in chief examination, PW1 had stated that he had informed PW1 about the theft sometime in the afternoon on the next day of the incident. He also stated that he did not feel like going to the accused who were known to him when he saw them taking away the household articles in the car. Curiously, this witness had described the manner in which the accused had broken open the front door. According to him, the accused had used an iron rod for the purpose. Accused No.3 had used the iron rod and the other two had helped him. He further stated that all the three caught hold of the iron rod Crl.A.No.156 OF 2001 :: 4 :: simultaneously. He further stated that there was some loud noise when the accused were trying to break open the door and that atleast the people in the nearby four or five houses could have heard it. 5. PW3 stated that he was returning from his sister's house at about 12.30 a.m. When he saw the white Ambassador car in front of the house of PW1, he also stood aside in order to see what was happening. He saw the accused coming out of the house with a T.V. and two gunny bags. According to this witness, he had gone to his sister's house to talk about certain family problems. In cross examination, he stated that he had gone there to discuss about the death of his brother-in-law who had passed away sometime in 1991. He did not remember the date of death of his brother-in-law. PW3 stated that he saw accused No.3 breaking open the door with an iron rod. After opening the door, accused No.3 came to the car and kept the iron rod in the car. 6. I have referred to the versions given by PWs2 and 3 in detail only for the reason that the learned counsel for the Crl.A.No.156 OF 2001 :: 5 :: complainant had assailed the finding of the learned Magistrate that the evidence of PW2 and 3 was not reliable, since they were chance witnesses. I have no hesitation to agree with the view taken by the court below. A perusal of the deposition of these two witnesses will undoubtedly show that they were totally unreliable, leave alone they were the so called chance witnesses. Their alleged presence at the scene of occurrence could itself was not believable at all; and their conduct was stranger than fiction. In any view of the matter, the learned Magistrate, in my view, was totally justified in acquitting the accused. Learned counsel has invited my attention to the testimonies of the other three witnesses also which, in my view would not in any way advance the case of the complainant. There is no merit in the appeal. It is accordingly dismissed. (A.K.BASHEER, JUDGE) jes Crl.A.No.156 OF 2001 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - Crl.A.No.156 OF 2001 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 25th Feb. 2008