.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.244 OF 2007 Rampujan Sudarshan Rudrapal, ] age about 25 years at present ] lodged in the Central Prison, ] Kalamba, Kolhapur. ] ..APPELLANT. Versus The State of Maharashtra. .... Ms.Sharmila Kaushik, Adv. appointed for the Appellant. Mr.Y.S.Shinde, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 28th April, 2008. DATED : 28th April, 2008. DATED : 28th April, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellant-orig.accused had challenged the judgment and order dated 18.1.2006 passed by the learned IV Ad-hoc Additional Sessions Judge, Thane in Sessions Case No.120 of 2005. By the said judgment and order, the learned Sessions Judge convicted the appellant-orig.accused for the offence punishable under Sections 328, 380 & 457 of IPC. The appellant has been sentenced to RI for five years and fine of Rs.5,000/- in default RI for one year under each of the above sections separately. The learned Sessions Judge directed the substantive sentences to run concurrently. .(2). 2. The prosecution case briefly stated is as under :- . The appellant was working as a Security Guard in Shree Ganesh Forging Ltd. Company situated at Poune-Thane Belapur road, Navi Mumbai. On 11.10.2004 as the salary was to be distributed to the employees, Rs.14,68,830/- was brought from the accounts department to the office. On 11.10.2004 Rs.7,32,953/- were distributed by way of salary amongst the employees and Rs.7,35,877/- remained which were kept in the cupboard in the office. At about 9:00 p.m. PW-1 Gopal Kadam kept the cash in the cupboard, locked the cupboard, closed the office and went home. The next day, he joined duty at about 6:45 a.m.. When he opened the door of his office, he found that the cupboard was partially open. Backside window of the office was also open and the amount was missing from the cupboard. Hence complaint came to be lodged by PW-1 Gopal Kadam. 3. PW-5 P.Kitta was working as the Security Supervisor in Ganesh Forging Company Ltd.. He was .(3). on duty in the night between 11.10.2004 and 12.10.2004. According to P.Kitta at about 1:15 a.m., the accused came there with tea. The accused served tea to P.Kitta and others. After some time, PW-5 P.Kitta and the other persons fell asleep. On the next date in the morning at 6:45 a.m., PW-1 came there. He found that the cash was missing from the cupboard. All the security guards were asked to search for the accused as they all fell asleep after they drank the tea offered by the accused. Complaint came to be lodged and accused came to be arrested. Thereafter cash of Rs.45,600/- came to be recovered at the instance of the accused. So also, key came to be recovered at his instance. After completion of investigation, charge-sheet came to be filed. 4. Charge came to be framed against the appellant for the offence punishable under Sections 328, 380, 457 of IPC. The Appellant pleaded not guilty and claimed to be tried. The defence of the accused person is that of total denial and false implication. After going through the evidence adduced by the prosecution, the .(4). learned Sessions Judge convicted and sentenced the appellant-orig.accused, as stated in para-1 above. Hence this appeal. 5. I have heard Ms.Kaushik the learned Counsel appointed for the Appellant-orig.accused and Mr.Shinde the learned APP for the State. I have also perused the impugned judgment and order as well as the record pertaining to the present case. After giving my anxious consideration to the matter, I am of the opinion that this Appeal deserves to be allowed. 6. There is no eye witness to the actual incident of theft. The prosecution is relying on the circumstantial evidence to prove that it was the appellant who was responsible for the same. Three circumstances have been relied upon by the prosecution viz., (1) recovery of Rs.45,600/-; (2) recovery of key; and (3) the appellant gave tea to the witnesses which caused them to fall asleep. I shall now proceed to examine these three circumstances. 7. The first circumstance is recovery of .(5). Rs.45,600/- at the instance of the appellant. As far as this aspect is concerned, it is pertinent to note that no panch witness has been examined. No plausible explanation has been given by the prosecution for non-examination of the panch. Looking to the evidence on record, it cannot be said that the prosecution has reliably proved the recovery of Rs.45,600/- at the instance of the appellant. Thus, this circumstance cannot be held against the appellant-accused. 8. The next circumstance is recovery of key at the instance of appellant-accused. Panch witness PW-4 Ashok Gavai has deposed on this aspect. On careful perusal of the deposition of this witness, it is seen that this witness has stated that after the accused made a statement, the police, panchas and the accused went to the spot. After they reached the spot the police searched for the key. Thereafter police found the key. Thus, it is seen that it is not the accused person who searched for the key and handed over the key to the police , but, it was the police themselves who took out the key. The panch witness has stated that the appellant was handcuffed at that time. Both these .(6). facts raise doubt regarding recovery of key at the instance of the appellant. Moreover, it is seen from the deposition of PW-1 Gopal Kadam that the key of the cupboard was with him. This witness has stated that on 11.10.2004 after 9:00 p.m. he kept cash in the cupboard, he locked the cupboard and took the key with him. Looking to the deposition of PW-1 Gopal Kadam, it is not understood as to how the key came in possession of the appellant-accused. The prosecution has not explained the same. Looking to all these aspects, I am of the opinion that the recovery of key at the instance of the appellant cannot be relied upon. 9. The last circumstance on which reliance is placed by the prosecution is that on the relevant day the accused came and offered some tea to the witnesses. The said tea was supposed to contain some substance which caused the witnesses to go to sleep. In this context the prosecution has relied upon the evidence of PW-5 P.Kitta. This witness has stated that at about 1:15 a.m. the accused came with tea. However, on careful scrutiny of the evidence of this witness, it is found that .(7). this witness has stated that one canteen boy Niranjay was accompanying the accused and the said canteen boy was carrying 4-5 cups of tea. This witness has drunk a cup of tea and one Imraan and one other also took the tea. Thereafter he and Imraan went to sleep. As far as this aspect is concerned, it is seen that the accused was not alone but he was accompanied by one Niranjay i.e. canteen boy who brought the tea. On the basis of the evidence of PW-5 P.Kitta, it cannot be said that it was the accused himself who was responsible for mixing some substance in the tea. As stated earlier the key of the cupboard was with PW-1 Gopal Kadam. PW-1 Gopal Kadam has specifically stated that he locked the cupboard and took away the key with him. In such case, the prosecution has failed to explain as to how the key came in possession of the accused. Infact PW-5 P.Kitta has stated that the key of the cupboard always remained with Kadam Saheb (PW-1). In my opinion, the evidence of PW-5 P.Kitta is not sufficient to connect the accused with the crime. Thus the prosecution has failed to prove the case against the appellant-accused .(8). 10. At this stage, it may be stated that as far as the amount of Rs.45,600/- is concerned, the accused is not claiming the same. The learned Sessions Judge has directed that the said amount of Rs.45,600/- be handed over to the Proprietor or the Manager of Shri Ganesh Forging Company Ltd.. Order relating to the return of the cash amount of Rs.45,600/- is maintained. 11. In the result, the appeal is allowed. The judgment and order of conviction and sentence dated 18.1.2006 passed by the learned IV Ad-hoc Additional Sessions Judge, Thane in Sessions Case No.120 of 2005 is set aside. The order relating to the return of cash amount of Rs.45,600/- is maintained. The appellant- Rampujan Sudarshan Rudrapal is acquitted of the offence punishable under Sections 328, 380 & 457 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.)