.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1264 OF 2006 Governer Dagdu Kale, ] Aged 34 years, residing ] at Pardhi Camp, Solapur. ] ..APPELLANT. [Orig.Accused] Versus The State of Maharashtra.] ..RESPONDENT. .... Mr.R.N.Shaikh, Adv. for the Appellant. Mr.V.B.Konde-Deshmukh, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 16th April, 2008. DATED : 16th April, 2008. DATED : 16th April, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The appellant-orig.accused has challenged the judgment and order dated 14th August, 2006 passed by the IVth Ad-hoc Additional Sessions Judge, Solapur in Sessions Case No.22 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant-orig.accused under Section 395 of the Indian Penal Code and sentenced him to R.I. for three years and fine of Rs.1000/- in default, S.I. for three months. 2. The prosecution case briefly stated is as under : .(2). . On 21.8.2004 at about 6:00 p.m., the complainant PW-1 Vipul Pawar had been to Smruti Garden in Solapur. When he was standing there, five to six unknown persons rushed towards him. Two persons caught his hands and one person had taken out the mobile phone and wallet of the complainant. These persons assaulted the complainant by fist blows. The complainant was also assaulted on the right side of his forehead with knife. Thereafter all those persons ran away. The complainant then rushed to the shop of his friend. PW-2 Police Naik Kamble and one Police Constable Bansode were present there. They enquired with the complainant as to how blood was oozing from the injury from forehead. Five to six persons were seen running. Hence, they chased them. Out of them, one person came to be caught. It is the prosecution case that the said person was the present appellant. 3. Charge came to be framed against the appellant under Section 395 of IPC. The appellant pleaded not guilty and claimed to be tried. The defence of the appellant is that of total denial .(3). and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant, as stated in para-1 above. Hence this appeal. 4. The prosecution case rests upon the evidence of two witnesses i.e. complainant PW-1 Vipul Pawar and PW-2 Police Naik Kamble. As the prosecution story has been taken from the evidence of the complainant PW-1 Vipul Pawar, I do not intend to repeat the same as it will only overburden this judgment. In short, the complainant has stated that five to six persons rushed and they robbed him of mobile phone and cash. Thereafter those persons ran away and the appellant was one of those persons. 5. PW-2 Police Naik Kamble has stated that he was on duty at about 6:00 p.m.. He heard voice "thief, thief". He and police constable Bansode rushed to Smruti garden. One boy was standing there and the boy told that five to six persons threatened him and took away mobile phone and cash. PW-2 and police constable Bansode chased .(4). the persons. Four persons jumped over the fencing of the garden. Out of tem, one person was proceeding towards highway by footway. They caught that person. The said person was the appellant. It is pertinent to note that nothing was found with the appellant at that time. PW-2 Police Naik Kamble has categorically stated that nothing was found with the appellant. From the evidence of PW-2 Police Naik Kamble it is seen that he has not witnessed the complainant being robbed. Only after hearing the sound "thief, thief", he chased some six persons. Four of them jumped over the garden fencing. Police Naik Kamble states that they caught one person who was proceeding towards highway by footway. It is pertinent to note that PW-2 Police Naik Kamble does not state that the said person was running away. First of all, the said person was not along with other four persons. He was walking separately by footway towards highway. Nothing was found with the appellant. It would also be pertinent to note the averments made by the complainant in his cross-examination, wherein he has stated that he had not seen the person who has been caught by the police at any time prior. In .(5). view of the clear statement made by the complainant that he had not seen the person at any time prior to the police catching hold of the person, it appears that there is some doubt in respect of the appellant being one of the persons who robbed the complainant. Besides the above two witnesses, there is no other material against the appellant. The evidence of these two witnesses does not reliably connect the appellant with the crime. Hence, I am inclined to allow the appeal. 6. In the result, the appeal is allowed. The judgment and order of conviction and sentence dated 14th August, 2006 passed by the learned IVth Adhoc Additional Sessions Judge, Solapur, in Sessions Case No.22 of 2006 is set aside. The appellant- Governer Dagdu Kale is acquitted of the offence punishable under Section 395 of IPC. The appellant is in jail. He be set at liberty forthwith if not required in any other case. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)