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PETITIONER: VARGHESE

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       03/03/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R NANAVATI, J.      The appellant  was tried  along with two others for the offence punishable under Sections 394 and 397 IPC. The trial court acquitted  all the  three accused. Their acquittal was challenged by  the State  before the  High Court. The appeal was partly allowed by setting aside the acquittal of A.1 and A.2 and  convicting them  for the  offence punishable  under Section  394   IPC.  Acquittal  of  the  third  accused  was confirmed.      Both the  convicted accused  applied for  leave of this Court to file an appeal. Leave was grated to petitioner No.2 ( A.2 - Varghese @ Lali) only.      What is  contended  by  the  learned  counsel  for  the appellant is  that only  evidence on  the basis of which the appellant is  that only  evidence on  the basis of which the appellant has  been convicted  is that of discovery of knife and gloves  by him.  It appears that three persons committed robbery and  at that  time they had concealed their faces by putting  on   masks  and,   therefore,  they  could  not  be recognised by  PW1 - Gouri or PW2 - Bindu. The appellant has been connected  with the  crime on  the basis of recovery of knife and  gloves made pursuant to the statement made by him in presence  of PW  8, while  he was in police Custody.. PW8 has denied  that the appellant had made such a statement and that pursuant  to any  information given by him any knife or gloves were recovered. Though he has admitted his signatures on Ex.  P.6 -  Mahazar, the  contents have  been denied > No doubt, PW  18 -  the Investigating  Officer has  proved that Mahazar but  it clearly  appears from  the mahazar  that the knife and  gloves were  founded lying  in open  in  a  paddy field. In absence of any statement indicating concealment by him of  any weapon  or  other  incriminating  articles,  the statement of  A.2 cannot  be regarded  as sufficient for his conviction. What  the evidence  of PW.  18 and  the  Mahazar prove is  that a knife and gloves were recovered in presence of A.2 with the commission of crime. In absence of any other evidence A.  2 with  the commission  of crime. In absence of any other  evidence A.2  ought not to have been convicted by the High  Court under  Section 394 IPC. We, therefore, allow

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this appeal, set aside his conviction and a acquit him.      His bail bonds are ordered to be cancelled.