IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No. 133 of 2003. CRIMINAL REVISION APPLICATION No. 133 of 2003. CRIMINAL REVISION APPLICATION No. 133 of 2003. Raju Lalsing Rathod ..Applicant. Vs. The State of Maharashtra ..Respondent. Ms Rashmi Gaglani i/b Shri Ganesh Gole, Advocate for the Applicant. Mr S. S. Pednekar, A.P.P. for the State/Respondent. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 02.05.2008. DATED : 02.05.2008. DATED : 02.05.2008. P.C.:- P.C.:- P.C.:- 1. Heard the learned counsel appearing for the applicant and the learned A.P.P. for the respondent-State. Perused application and the material available on record. 2. This revision petition is directed against the order dated 2.1.2003 passed in Criminal Appeal No. 13 of 1999 (Raju Vs.State) by the Additional Sessions Judge, Raigad (the Appellate Court) dismissing the appeal and thereby confirming the order dated 11.5.1999 passed in Criminal Case No. 6 of 1998 by the Judicial Magistrate, First Class, Murud (the Trial Court) convicting the present applicant-accused under Section 248(2) of the Criminal Procedure Code (Cr.P.C.) for the offence punishable under Section 457 read with Section 34 of the Indian Penal Code (I.P.C.)and sentencing him to pay fine of Rs. 200/- in default to suffer S.I. for 15 days. The applicant-accused No.2 has suffered conviction alongwith accused No.1 Mangesh Chavan. THE FACTS: THE FACTS: THE FACTS: --------- --------- --------- 3. Briefly stated, the facts are that on 31.1.1998 Police Constable, Mr Thakur and Home Guard Mr Pramod Masal were on patrolling duty. They found two persons were carrying one television (T.V.) set in the midnight. Therefore, those persons were caught. P.S.I. Sanjay Patil (P.W.8) also reached there. Enquiry was made with those two persons. But they could not give any satisfactory explanation regarding the possession of T.V. set. The T.V. set was, therefore, seized. Both persons (i.e. both accused) were taken to the police station. ( 3 ) 4. One Mr Shabbir Valvatkar, who was running video centre at Murud after having opened his shop in the morning, noticed that back side door of his shop was open and tiles of the roof were also removed. He noticed that the T.V.set was stolen. He, therefore, lodged a report with the police station. The T.V. which was seized from the accused was taken to the police station. Thereafter, spot was inspected by the I.O. Spot panchnama was recorded. The statements of the witnesses were also recorded. After completing investigation charge sheet was filed in the Court of J.M.F.C. Murud charging the present applicant-accused No.2 alongwith accused No.1 for having committed an offence under Section 457, 380 read with Section 34 of the I.P.C. Accordingly, charge was framed vide Exh.11 against both the accused by J.M.F.C. in the Shriwardhan camp at Murud on 22.5.1998. The accused pleaded not guilty and claimed to be tried. 5. The Trial Court recorded the evidence of eight witnesses. After hearing both sides the ( 4 ) Trial Court has held that both accused were guilty for the offence punishable under Sections 457 380 read with Section 34 of the I.P.C. Both of them were sentenced to suffer R.I. for six months and to pay fine of Rs. 200/- in default R.I. for 15 days. 6. The applicant-accused No.2 preferred appeal against his conviction and sentence recorded by the Trial Court. However, the said appeal came to be dismissed since none of the contentions raised could find favour with the lower Appellate Court. 7. Being aggrieved by the aforesaid orders of the Courts below the present applicant has invoked jurisdiction of this Court under Section 397 (1) read with Section 401 of Cr.P.C. 8. Ms Rashmi Gaglani, learned counsel appearing for applicant-accused no.2 argued at length and prayed for acquittal. The learned A.P.P. argued for the prosecution. ( 5 ) CONSIDERATION: CONSIDERATION: CONSIDERATION: ------------- ------------- ------------- 9. The parties to the revision petition have taken me through the evidence available on record to canvass their respective contentions. 10. Having gone through the record and the evidence, the evidence of three prosecution witnesses; namely P.W. 5, P.W. 7 and P.W. 8 were found relevant for deciding the present revision petition. 11. Mr Dinanath Thakur (P.W. 5), examined by the prosecution being Police Constable attached to Murud Police Station, was doing night patrolling duty on that day i.e. on 31.1.1998. He has stated in his evidence that on suspicion, he apprehended accused Nos. 1 and 2 and made enquiries from them. Person holding T.V. set was accused No.1, who, according to him, could not give any satisfactory account of the ( 6 ) possession of the T.V. set. In his entire evidence, there is no whisper against accused No.2 to suggest that he was also in possession of the T.V. set or that both accused were in joint possession thereof. It is, thus, clear that this witness did not implicate applicant-accused No.2. 12. With the above evidence, if, one turns to the another witness; namely, Balkrashna Masal (P.W.7), he has stated in the cross-examination that he saw the accused from the distance of about 50 feet and that accused No.1 was in possession of T.V. set. In the cross-examination he has only implicated accused No.1. It is, thus, clear that he also did not implicate the present applicant-accused No. 2. 13. So far as Sanjay Patil (P.W.8) is concerned, he has stated in his examination-in-chief that accused No.1 was found in possession of the T.V. set. He took search of accused No.1 Mangesh and found colour T.V. of Crown Company and counter parts of two cinema tickets in his possession. Even this witness did ( 7 ) not implicate accused No.2 (the present applicant). With this evidence on record the conviction of the present applicant-accused No.2 could not have been recorded. 14. In the result, the revision petition is allowed. The impugned order is set aside. Accused No.2 is acquitted of the offence punishable under Sections 457, 380 of the I.P.C. The bail bonds of the accused stand cancelled. JUDGE. JUDGE. JUDGE.