SHARAD SADASHIV MULEY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This revision application is directed against the order of conviction recorded under section 381 of the Indian Penal Code against the petitioner, hereinafter referred to as "the accused", by the two courts below on a concurrent finding of fact. Prima facie, therefore, the learned Advocate appearing in support of the petition Mr. Agarwal had a somewhat difficult task which however he has discharged with success.

(2.) The case is one of theft of 32 drums of asphalt belonging to the Building & Communication Department and which were lying by the side of the road near mile stone No. 224 on Aurangabad Nagpur Road. According to the prosecution, the accused who was working as a road clerk in the Building and Communication Department at the relevant time is responsible for the theft of 32 drums of asphalt. One Gopal Joshi, a Junior Engineer, was actually in charge of the asphalt work that was going on Aurangabad Waluj and Waluj Kaigaon sections of Aurangabad Nagpur Road. Thirty five drums of asphalt had been kept by the Buildings and Communication Department by the side of the road near mile stone No. 224. The prosecution alleges that on the night of 4th of February, 1974 one Nelson, who was a watchman, informed Gopal Joshi at his residence that the accused had removed 32 drums of asphalt in a truck from the place where they were lying. Gopal Joshi proceed to the site and was satisfied that 32 drums of asphalt had been removed and theft of the same had been committed. Thereafter, he first reported the matter to his superior officer who directed him to file a complaint with the police which was accordingly done. That complaint treated as the first information report is at Exh. 20. In the investigation which was get in motion pursuant to this complaint, 32 drums which were lying in the compound of the M.I.D.C. at Jalna, a town about 60 k.m. form Aurangabad, were seized. Thereafter, further investigation carried out and according to the prosecution following picture emerged from the same.

(3.) The accused offered to sell 32 drums which were allegedly in his possession to any one who was in need. One Sitalsingh, who was the landlord of the accused, knew Mahendra Shah who was in need of drums of asphalt. Sitalsingh, therefore, sent a note to Mahendra Shah mentioning that his friend Muley is able to offer the required number of drums of asphalt and arrangement may be made for collecting the same immediately. This note is dated 3rd February, 1974. Thereafter, on 4th February, 1974 the accused and Mahendra Shah are said to have engaged a motor truck BYW 3397 of which one Shabirkhan was the driver. One Mohanlal is the servant of Mahendra Shah and Mirza Shabir Beg is one of the collies who were engaged for loading the said drums of asphalt in the truck. According to the prosecution, after the truck the collies were engaged they all proceeded to the site which was pointed out by the accused. From there 32 drums of asphalt were loaded into the truck which thereafter sped away from that place. On the way, however, the truck had to pass through Aurangabad and Jalna octroi outposts where octroi duty was paid out the number of the vehicle in which the goods were being transported was shown as MBH 3397 and not BYW 3397. As I have already mentioned above, the stolen goods were seized by the police at Jalna.