STATE OF MAHARASHTRA Vs. FAKIR MOHAMMAD

JUDGEMENT

(1.) This appeal by the State is against the order of acquittal dated 14th May, 1976, passed by the learned Judicial Magistrate, First Class, Shriwardhan Camp, Mahad, in Criminal Case No. 474 of 1974. At the trial there were as many as 27 accused persons charged with an offence punishable under section 379 read with section 34 of the Indian Penal Code. All the said accused were acquitted. This appeal however, is filed only against accused Nos. 1 to 5.

(2.) The prosecution case, in brief, has been that one old minor bridge at Saver river, Mhasala, had been ordered to be dismantled. The dismantling contract was given to one Saiffuddin Ismail Gaye who was a Local Government Contractor and who has been examined in the present case as prosecution witness No. 2. This contractor dismantled the bridge and removed in all 21 beams (gliders), 11 of which were kept by the side of the road and the remaining were lying in the bed of the river. On the night between 5th and 6th September, 1974, P.S.I. Hundekari alongwith his staff was on night patrolling duty in that area. Hearing the noise of the lifting of the beams, the police party went there and found accused Nos. 1 to 27 engaged in the work of loading the beams into truck. Enquiries were made with the accused. Accused nos. 1 to 3 informed the P.S.I. that they had purchased these 11 beams from the contractor, Saiffuddin, at the rate of Rs. 1,600/- per ton. However, not satisfied with this explanation, all the 27 accused persons alongwith the loaded truck were brought to the Mhasala Police Station. Contractor Gaye and Deputy Engineer Pendse, were also brought to the Police Station. The 11 beams in question were attached along with the truck.

(3.) After investigation, all the accused persons were charge-sheeted for an offence punishable under section 379 read with section 34 of the Indian Penal Code. Defence of the accused persons to the said charge was one of complete denial. Accused No. 2 claimed that the contractor, Gaye, had sold the said beams at the rate of Rs. 1,600/- per ton and it was in pursuance of the said contract of sale that the party consisting of the aforesaid accused persons were engaged in the loading of the beams into the truck in question. The defence of the accused was that even an advance of Rs. 1000/- had been paid to Gaye. Further defence was that it was indeed, at the instance of Gaye who wanted to sell these beams, that the contract of sale was entered into. There was no question of any intention of stealing the property. The accused were of the impression and belief that the beams belong to Gaye, the contractor, and under that belief and impression accused Nos. 1 and 2 agreed to purchase the same at the rate of Rs. 1,600/- per ton. Accused No. 1 was a person who was dealing in scrap material at Kalyan, far away from the scene of offence. When Gaye enquired of accused No. 2 if he could find a purchaser for his beams which Gaye is said to have himself purchased from the B & C Department of the State Government, accused No. 2 told him that his relation accused No. 1 at Kalyan, dealing in scrap material, may be interested in the said purchase. In due course, accused No. 2 when he went to Kalyan met the said relation accused No. 1, who agreed to purchase the said material not at the rate of Rs. 1,800/- per ton quoted by Gaye but at the rate of Rs. 1,600/- per ton. Gaye agreed to the said price. It was only, thereafter, that accused Nos. 1 and 2 alongwith accused Nos. 3, 4 and 5 left Kalyan in the truck in question and on way to Indapur took accused Nos. 6 to 27 as labourers for the work of loading of the beams. Coming to Mhasala they met Gaye at his residence, also gave him an advance of Rs. 1,000/- and the party then went to the site for the purpose of loading. When P.S.I. Hundekari met them at night, the accused persons did tell him immediately and on the spot itself that they had purchased these beams from Gaye. Indeed, even after the P.S.I. met them, the accused continued to load the beams into the truck. According to the accused, a false case has been instituted against them. The object of prosecuting the accused persons was, according to the accused, to save the contractor Gaye. Accused No. 2 has also entered the witness box and offered himself for cross-examination inter alia, by the prosecution.