STATE OF MAHARASHTRA Vs. BHAGU DHUMAL

JUDGEMENT

(1.) THIS is an appeal filed by the State under section 417(1) of the Code of Criminal Procedure against the judgment delivered by the Judicial Magistrate, First Class 8th Court, Poona, acquitting the respondents of an offence punishable under section 379 read with section 34 of the Indian Penal Code. Jethabhai Dongarsee and Company are transport agents carrying on business of transport at Nana Peth, Poona. It appears that this Company has received a bundle containing alluminium tins on 7th May, 1972, from Bombay and that bundle was kept on the 7th May, 1972 in the evening in their room near the door of the office. THIS bundle was found missing on the next day viz. on 8th May, 1972 but no report appears to have been made to the police on that day. It appears that on 10th May, 1972, Police Constable Dharma Sonawane found accused No. 1 Bhagu, who is a hand-cart man, carrying alluminium tins at about 8 a.m. on his hand-cart within the jurisdiction of Vishrambaug Police Station. THIS Bhagu was followed by accused No. 2 Hansraj. Police Constable Sonawne became suspicious and he made enquiry from Bhau and accused No. 2 and took them to the Police Station and a panchnama was drawn. He also made a report about the property that was stolen. On 12th May, 1972 one Chapsi, and employee of Jethabhai Dongarsee and Company, lodged a report (Ex. 17) at the Police Station about the theft of a bag containing alluminium tins. The Police, after completing investigation filed a charge-sheet against the accused for an offence punishable under section 379 read with section 34 of the Indian Penal Code. Both of them pleaded not guilty and claimed to be tried. The prosecution led evidence of as many as five witnesses. Vinod Shah, an employee of Jethabhai Dongarsee and Company, stated that bags of alluminium tins were received and they were stored on 7th May, 1972 and were lying near the door of the office. On 8th May, 1972 in the morning, a bundle was found missing. Chapsi Velji, another employee of the Company, also stated to have identified the property at the Vishrambaug Police Station. Gyanaba Sakharam (P.W. 2), an employee of the Company, stated that he had received such a bundle on 7th May, 1972 and that bundle was missing on 8th May, 1972. On 17th May, 1972, he was called at the Vishrambaug Police Station where he identified that bundle. He admitted in his cross-examination that such alluminium rolls were available in the market and stated that there were no special marks on the sheets. Padamshi Shah, the owner of the Company, has also stated that he received the goods. The learned Magistrate found that his evidence could not establish the identity of the goods. The accused also led evidence in his support. It was the case of the accused No. 2 that he had himself purchased the goods. The learned Magistrate, after considering all this evidence, observed that there was delay in lodging the complaint. The prosecution has not led evidence about the receipt of the goods from Bombay and such evidence was available to the prosecution. In absence of such evidence, it was not possible to show that the property seized from the accused was the property alleged to have been stolen from the shop of the complainant. He, therefore, acquitted the accused. It is against this judgement that the present appeal has been filed. Mr. Deshmukh, the learned Public Prosecutor, who appeared for the State took me through the entire evidence of this case. After considering all this evidence, I think that the learned Magistrate was right in holding that there is no evidence to show that the property which was seized from the accused was the property which was alleged to have been stolen from the shop of the complainant. As stated by the Magistrate, no evidence has been led by the prosecution to show who had sent that property from Bombay and to whom it was sent, Neither the consignor not the consignee were examined, nor any evidence was led to show that any special marks were there on the sheets or on the bag containing the articles. If the goods were really removed between the night of 7th and 8th May, 1972, the complainant would have lodged the complaint immediately the next day. The learned Magistrate was right in discarding the evidence of the prosecution witnesses also on the ground that they have not made the report of the alleged theft immediately. The accused have led evidence to show that the goods were purchased by accused No. 2 and that evidence has been accepted by the Magistrate and I do not see any reason to interfere in the matter. THIS is a mere question of appreciation of evidence. Nothing has been brought on record that the Magistrate has committed an error in appreciating the evidence. The appeal is without any substance and deserves to be dismissed. In the result, the appeal is dismissed and the order of acquittal passed by the Magistrate is affirmed. Nothing has been shown by the learned Counsel for the applicant in Criminal Application No. 565 of 1974 why I should interfere in the order regarding the disposal of the property passed by the Magistrate. The Criminal Application stands dismissed and the rule is discharged.