1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 162 OF 2009 WITH CRIMINAL APPLICATION NO. 2075 OF 2009 1. Sattar Khan Sujad Khan Pathan 2. Shakil Nadar Shah, R/o. Garib Nawaz Nagar, Dist. Dhule. ....Applicants. Versus The State of Maharashtra & others. ....Respondent. Mr. Amol S. Sawant, Advocate for the applicants. Mrs. S.B. Wadmare, A.G.P. for the State. CORAM : A.V. NIRGUDE, J. DATE : 26th JUNE, 2009 PER COURT : 1. The applicants are convicted under section 379 r/w. 34 of I.P.C. and were sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs.200/-, in default, to suffer simple imprisonment for 7 days. Both the courts below concurrently found the evidence against the applicants trustworthy. 2. Facts leading to the prosecution can be narrated as under :- 2 On 7th November 2006 at about 2.45 a.m., in the mid night, the complainant Bhatu, Junior Telecom Officer, received a phone call from his mechanic that at certain public place, on a public road, two persons were caught red handed while committing theft of cable wire by members of public. The complainant and Shri. Jadhav, his mechanic, rushed to the spot and saw that there was a mob gathered around two young persons who were sitting surrounded by the mob and besides them pieces of cable wire and an axe were lying. Immediately, the police were contacted and the thieves and pieces of cable wire were taken to the police station. Initially, the prosecution case depended on two witnesses who actually for the first time saw the thieves cutting away the cable wire. They then raised alarm and due to their alarm, the mob gathered and apprehended the thieves. Thereafter, the first informant was notified etc. 3. At the time of trial, except the first informant and his companion who arrived on the spot rather belatedly, no witness of the prosecution supported the prosecution case. So what remained before the Court was the deposition of the first informant which I have narrated about. Both the Courts below held that the depositions of the first informant and his companion were sufficient to connect the applicants with the alleged crime. What weighed in favour of the prosecution was that the applicants were found apprehended by the mob and the pieces of cable wire were found lying near them. The learned trial Court held that 3 section 114, Illustration (A) of the Evidence Act would rescue the case of the prosecution and connect the applicants with the offence of theft. 4. The learned advocate appearing for the applicants challenged this finding. He suggested that the pieces of cable wire were not found in the hands of the applicants and so the presumption under section 114 of the Evidence Act cannot be raised. But he blissfully forget to notice that when the prosecution witness, the first informant and his companion reached the spot, the pieces of wire were lying close to the applicants and the applicants were sitting next to them. The time when the applicants were found on the spot is also relevant factor. It was 2.30 a.m. i.e. middle of the night. 5. In view of this, the applicants cannot escape the presumption which is drawn against them. I find nothing incorrect in the impugned judgments and orders. The criminal revision application stands dismissed. 6. In view of dismissal of the criminal revision, the criminal application No. 2075 of 2009 does not survive and is rejected accordingly. [ A.V. NIRGUDE, J. ] ssc/crirev162.09