Shaikh Rahim vs The State of Maharashtra

A.P. Bhangale, J.—By this revision application, the revision applicant has questioned legality, propriety and correctness of the judgment and order dated 11.7.2007 passed by learned Principal Sessions Judge, Buldana in Criminal Appeal No. 44 of 2005 whereby the judgment and order of conviction recorded by learned trial Magistrate for an offence punishable u/s 379 of the Indian Penal Code was confirmed and on modification in the order of sentence, applicant was directed to suffer rigorous imprisonment for three months and pay a fine of Rs. 2 500/, in default, to suffer further rigorous imprisonment for one month.

It was the case of prosecution that complainant Kundlik Amruta Bomble (first informant) went to grocery shop at Shivaji Nagar, Mehkar which was run by one Dilip Uttamrao. While complainant/firstinformant was purchasing grocery articles on 12th March 1996 at about 01.30 pm, the accused who stood adjacent to firstinformant, was asking for price of some grocery items to shopkeeper Dilip. When the firstinformant bought grocery items worth Rs. 500/ and put his hand in the pocket to take out cash, he found that his money was not found in his pocket and the amount of Rs. 550/ which he had kept in his pocket, was stolen. Immediately, he suspected accused and informed one Madhukar Gaikwad to question the accused about the incident of theft. At that time, accused tried to run away, but Madhukar Gaikwad held his shirt. It was found that the accused had concealed the amount stolen beneath his banyan. The firstinformant had identified the cash as belonging to him. The shopowner then phoned to Police Station, Mehkar and accused was handed over in the custody of police. Accordingly, report was lodged about the incident at Mehkar Police Station registered as Crime No. 141/96 u/s 379 of the Indian penal Code. The Investigating Officer had seized the cash amount which was stolen, under seizure memo and also conducted spot panchanama in presence of panchas and recorded statements of shopowner Dilip as also witness Madhukar and first informant.

Accused was chargesheeted for the offence punishable u/s 379 of the Indian Penal Code to which he pleaded not guilty and claimed trial. At trial, it appears that firstinformant as well as shopowner Dilip, Investigating officer Laxman and one Suresh were examined in order to prove the incident of theft. Learned trial Magistrate believed the prosecution case and held that the case was proved beyond reasonable doubt as the accused had stolen the amount at grocery shop, concealed it beneath his banyan and then tried to run away. Stolen amount was recovered soon after the incident and police were also informed promptly about the incident. Thus, upon examination of evidence the learned Magistrate was pleased to convict the accused for an offence u/s 379 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/, in default, to suffer further RI for one month. Appellate Court maintained the conviction, but modified the order of sentence, as aforesaid.

When the matter was called out, none appeared for applicant. It may be noted that in the past also when the matter was called out on 1.4.2010 none had appeared for the applicant and the revision was dismissed for default. It was then restored on the request of learned Counsel for the applicant vide order dated 20.4.2010. It was again dismissed for default on 7.6.2010 and it was restored vide order dated 5.7.2010 on the request of the applicant. Today also, neither applicant nor his advocate his present. It is obvious that the applicant is not interested to prosecute the matter.

With the assistance of learned Additional Public Prosecutor, I have perused judgments of the Courts below and heard learned learned APP at length.

Considering the evidence led by the prosecution as also incriminating conduct of the accused who attempted to run away from the spot of incident and in the absence of explanation for possession of Rs. 550/ which were found with him immediately after the incident of theft and presumption which may be raised as contained in Section 114(a) of the Evidence Act, no interference is required in the impugned judgments and orders of conviction which are legal and proper. Learned Sessions Judge in appeal has already taken a lenient view by reducing jail sentence.

In the result, there is no merit in the revision application and the same is accordingly dismissed.