IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 189 OF 2009 IN STAMP NUMBER MAIN NO. 1828 OF 2009 STATE OF GOA THROUGH MARGAO TOWN P. S. ... Applicant Versus YAMUNA NAIK AND 3 ORS., ... Respondents Ms. Winnie Coutinho, Public Prosecutor for the Applicant. Coram:- N. A. BRITTO, J. Date:- 14th July, 2009 ORAL ORDER : Heard. 2. The State seeks leave to appeal against the acquittal of the accused under Section 381 read with 34 IPC, against accused nos.1, 3 and 4. 3. Accused no.1 Yamuna Naik is stated to be a servant in the house of the complainant Dr. Oscar Lourenco. Accused no.2 Fatima Diniz was stated to have been a cook in his house and Accused no.3 Gurunath Anvekar and Accused no.4 Ramdas Anvekar are stated to have been goldsmiths to whom Accused no.1 Yamuna Naik is stated to have sold the gold ornaments. Accused No.2 Fatima Diniz has been convicted under Section 381 read with 34 IPC and has been released under Section 360 on probation of good conduct. There is no challenge to the said conviction as well as release under Section 360 of Criminal Procedure Code, though the Probation of Offenders Act, 1958, is in force in the State. 4. The Accused no.3 Gurunath Anvekar and Accused no.4 Ramdas Anvekar are stated to be brothers and goldsmiths. Learned J.M.F.C., has observed that there is absolutely no evidence against the accused no.4 Ramdas Anvekar and therefore has acquitted him. Learned Public Prosecutor has not been able to show any evidence against him and therefore his acquittal under Section 411 read with 34 of IPC cannot be faulted. 5. In my view, the acquittal of Accused no.1 Yamuna Naik as well as Accused no.3 Gurunath Anvekar also cannot be faulted. According to the prosecution, accused no.1 is stated to have sold certain gold ornaments to Accused no.3 Gurunath Anvekar and what has been actually recovered from him is melted gold of 100 grams when according to the complainant the total weight of gold ornaments stolen was 104 grams. Learned Magistrate as observed, and in my view rightly, that Accused No.2 Fatima Diniz has been convicted on the basis of the evidence of PW6 to whom she had sold some of the gold ornaments. No gold ornaments were recovered from the possession of Accused no.3 Gurunath Anvekar and what has been recovered is melted gold which is more than total gold involved in the case of theft from the house of the complainant and which according to him Accused no.3 was taken by the police, by force. No gold ornaments were found with him which could have been identified by the complainant. No gold ornaments were recovered from hims ( Accused no.3). The statements made by Accused no.1 in the presence of the pancha witness, without any recovery, were inadmissible in evidence. Considering the nature of evidence against Accused no.1 as well as Accused no.3 their acquittal could not be faulted. 6. Hence, I find that there is no merit in this application for leave to appeal and consequently the same is hereby dismissed. N. A. BRITTO, J. at*