Case Note & Summary
The State of Maharashtra filed an appeal against the judgment dated 11 March 1995 of the Metropolitan Magistrate, 12th Court, Bandra, Bombay, acquitting seven employees of the Central Warehousing Corporation in Case No.563/P of 1992 for an offence under Section 409 read with Section 114 of the Indian Penal Code. The prosecution arose from the theft of ten tons of zinc ash, valued at Rs.2,45,000, from the Central Government warehouse at Bhandup, Bombay, on the night between 29 and 30 January 1992. The respondents were employed as watchmen (respondent nos.1, 5 to 7), Warehouse Assistant Grade I (respondent nos.2 and 3), and Junior Technical Assistant (respondent no.4). Respondent no.1, Chandrakant Laxman Gholap, was found in a lorry at Mahim along with zinc ash during night patrolling by police. Police constable PW7, PSI PW8, and PI PW9 were on patrolling duty near Mahim railway gate when they noticed a lorry in suspicious circumstances. On enquiry, the driver stated that the goods belonged to respondent no.1, who admitted committing theft from the Central Warehouse. Panchas were called, and goods and lorry were seized under Section 41(d) CrPC. The Manager of the warehouse, PW1, was contacted; he verified the stock and confirmed a shortage of ten tons of zinc ash. Complaints were lodged at Bhandup police station and Dharavi police station. The trial court acquitted all accused, holding that the charge under Section 409 was not proved. The State appealed. The High Court, after hearing the APP and perusing the record, applied the ratio of Bani Singh v. State of U.P. (1996 Cri.L.J. 3491) and held that the acquittal for criminal breach of trust under Section 409 IPC could not be interfered with as the essential ingredients of entrustment and dishonest misappropriation were not established. However, the evidence on record clearly proved the offence of theft under Section 379 IPC against respondent no.1. He was found in possession of stolen property at midnight, unable to explain possession, and the driver’s statement and seizure panchnama corroborated the theft. The Court noted that the evidence of the hostile panch witness could be relied upon to the extent it supported the prosecution, particularly regarding the seizure. Consequently, the High Court partly allowed the appeal, maintaining the acquittal for the other accused and for the charge under Section 409, but convicting respondent no.1 for theft under Section 379 IPC.
Headnote
A) Criminal Appeal Against Acquittal - Interference with Acquittal - Code of Criminal Procedure, 1973, Section 378 - The High Court, after perusal of evidence and reasoning of the trial court, applied the ratio of Bani Singh v. State of U.P. and concluded that while the acquittal for criminal breach of trust under Section 409 IPC could not be interfered with, the evidence proved theft against accused no.1 - Held that the appellate court may interfere where the view taken by the trial court is perverse or manifestly illegal (Paras 2, 6). B) Theft - Possession of Stolen Property - Failure to Explain - Indian Penal Code, 1860, Section 379 - Accused no.1 was caught red-handed in a lorry at midnight with stolen zinc ash; the driver stated the goods belonged to accused no.1, who could not satisfactorily explain possession - Held that the circumstances established the offence of theft, and the conviction under Section 379 IPC was warranted (Paras 6, 9, 10). C) Evidence - Hostile Witness - Appreciation - Indian Evidence Act, 1872, Section 154 - Panch witness PW2 partly supported the prosecution case, identifying his signature on the seizure panchnama and the goods, though he was treated hostile - Held that the evidence of a hostile witness is not entirely effaced and can be relied upon to the extent it supports the prosecution case (Paras 10, 12).
Issue of Consideration
Whether the trial court’s acquittal of the accused under Section 409 read with Section 114 IPC was justified, and whether any offence was made out against any of the accused on the basis of the evidence on record.
Final Decision
Appeal partly allowed. Acquittal for the offence under Section 409 read with Section 114 IPC was confirmed for all accused. Respondent no.1 (Chandrakant Laxman Gholap) was convicted under Section 379 IPC for theft of zinc ash. The other respondents were acquitted.
Law Points
- Scope of interference in acquittal appeal
- conviction for theft under Section 379 IPC
- possession of stolen property without explanation
- evidence of hostile witness
- seizure under Section 41(d) CrPC
- appreciation of police evidence
