1. This Criminal Revision Application has been filed by original accused No. 2, challenging the order of conviction and sentence passed by the Judicial Magistrate, First Class, (Railways), Bhusawal, in Criminal Case No. 2744 of 1977, and confirmed by the learned Additional Sessions Judge, Jalgaon by his order dated 22nd September, 1978.

2. The original case had been started upon two complaints filed by two brothers, Vasant Mulchand Kamanl and Navinchandra Mulchand Kamani, both of whom were doing business in cutlery at their respective places at Akcla and Khamgaon, in Buldhana District. On 2nd June, 1977, both these brothers were travelling by Howra-Bombay Express and were on their way to Bombay for making certain purchases Vasant is alleged to have been in possession of cash amount of Rs. 2,500/- placed in his suit case and his brother, Navinchandra, is alleged to have been in possession of cash amount of Rs. 10,000/- also placed in his own separate suitcase. The train reached Bhusawal at 8.55 P.M at that place the brothers got down for some time. On re-entering the train, they discovered that their belongings had been stolen. They thereupon lodged their respective complaints at Exhibits 18 and 20 with the Railway Police Station at Bhusawal. The P.S.I in question carried out investigation and arrested accused Nos. 2, 3 and 4 on 7th June, 1977 and accused No. 1 on 10th June, 1977. During the course of investigation, the house of accused No. 2 was searched and during the said search, a number of articles were seized under a panchanama. After completion of investigation, all the accused Nos. 1 to 4 were charge-sheeted in the Court of the Judicial Magistrate, First Class, (Railways), Bhusawal. The charge against accused Nos. 1 to 4 was one under section 379 r/w section 34 I.P.C, while additional charge against accused No. 4, who was the wife of accused No. 2, was one under section 201 I.P.C

3. The learned Magistrate who tried the case came to the conclusion that the charge against accused No. 4 was not proved beyond reasonable doubt. She was consequently acquitted. Certain properties attached and seized in the course of the search of the house of accused No. 2 were also directed to be returned to accused No. 4. So far as accused Nos. 1 to 3 were concerned, the learned Magistrate convicted them of the offence under section 379 read with section 34 I.P.C and were sentenced to suffer R.I for one year each and to pay a fine of Rs. 200/- in default to undergo further R.I for 2 months each. This conviction and sentence was challenged by accused No. 1 by preferring Criminal Appeal No. 68 of 1978 and by accused Nos. 2 and 3 by preferring Criminal Appeal No. 74 of 1978. The said appeals were heard by the learned Additional Sessions Judge, Jalgaon who by his judgment and order dated 22nd September, 1978, was, however, pleased to dismiss both the said Appeals. Accused No. 1 whose Criminal Appeal No. 68 of 1978 stood dismissed does not appear to have challenged the said dismissal. Accused Nos. 2 and 3, however, challenged the dismissal of their Appeal No. 74 of 1978 by preferring therefrom the present Criminal Revision Application No. 425 of 1978. When this Revision Application came up for admission, this Court dismissed the Revision Application of accused No. 3, but admitted the Revision Application of accused No. 2. It is this Revision Application of accused No. 2 that has now been hoard by me. In support of the Revision Application, I have heard Mr. C.A Phadkar, the learned advocate for the petitioner-accused No. 2. The State is represented before me by Mr. R.T Walavalkar, the learned Public Prosecutor.

4. In my opinion, the present revision application can be disposed of on a short ground. It is not necessary to go in detail into the evidence of various prosecution witnesses because, inter alia, the conviction of accused Nos. 1 and 3 has become final and also because accused No. 4 has been acquitted by the learned Magistrate. We are now concerned only with the case of accused No. 2 and even so for as this particular accused is concerned, after having considered the evidence on record and the argument of the respective advocates before me, I find that the ultimate conclusion involved two points, (1) the finding of a shaving box in the house of accused No. 2 as also (2) the finding of cash amount of Rs. 5042/- also in the house of accused No. 2. So for as the finding of various other articles in the house of accused No. 2 is concerned, the cumulative effect of the judgment of the learned Magistrate and the judgment of the learned Additional Sessions Judge has been that none of the other articles found in the house of accused No. 2 has been established to be of the ownership of either of the original complainants. It is in this light that the proceeding and the ultimate decision boils down to the finding of the aforesaid two items only i.e the shaving box and the cash of Rs. 5042/- from the house of accused No. 2.

5. Now so far as the shaving box is concerned, it must be made dear that it has nothing to do with the shaving kit consisting of various articles that normally go into for the purpose of a shave viz., razor, soap, alum, etc. It is relevant to mention hero that there also was found in the house of accused No. 2 a shaving kit, but the learned Additional Sessions Judge has held that the said shaving kit has not been established to be of any of the complainants. It has been further held that the articles found in the shaving kit are common place articles and further more, there was no other shaving kit found in the house of accused No. 2, with the result that the kit actually found could as well be the kit belonging to accused No. 2 himself. We are, therefore, left only with the shaving box.

6. In this behalf, it is significant to note that the complainant, Navinchandra, did not say anything in that behalf in his examination-in-chief. He also did not say anything in that behalf even when he was recalled and again examined in-chief. It was for the first time in his cross-examination after his recall as aforesaid that he stated that the shaving box, article 29, before the Court, was his. He, however, admitted that in his complaint, Exhibit 20, he had not given any particular description of the shaving box. He also further admitted that there was no special mark of identification on the shaving box. Article 29. It is further pertinent to note that accused No. 2 was not asked anything at all about this box. Though questions wore put to him regarding other articles, no question was asked to this accused regarding article 29 viz. the shaving box in question. It also cannot be ignored that such a shaving box is also a common place article. In all these circumstances, the evidence regarding the shaving box in question is, in my opinion, two weak, if not, also rather flimsy. It must also be considered in the light of the fact that the complainant had also made similar allegation regarding his other articles such as towels, carpet, etc., and had stated that he had one towel and one carpet, but at the time of the search of the house of accused No. 2, exactly 2 similar towels and 2 similar carpets were found in the house of accused No. 2. This Indicates that the articles allegedly stolen were mentioned by the complainant Navinchandra, rather casually and his identification of the said articles also does not appear to have been any meticulous identification as such. These facts and circumstances render the identification of the shaving box in question rather unreliable and unsafe.

7. Coming then to the cash amount of Rs. 5042/- found in the house of accused No. 2, it must, in the first place, be noted that no where in his evidence does Navinchandra even barely assert that the aforesaid cash amount found in the house of accused No. 2 belonged to him the said complainant. Again nowhere in his evidence does Navinchandra says that the said amount was the very amount he was carrying with him and had kept in his suit case. On the contrary, while giving description of the currency notes which were carried by him on his journey, Navinchandra has specifically stated that the said amount of Rs. 10,000/- carried by him were all of hundred rupee notes, whereas while taking search, the actual amount found in the house of accused No. 2 consisted of currency notes of various different denominations. There were 36 curency notes of Rs. 100/- each, 1 currency notes of Rs. 20/-, 108 currency notes of Rs. 10/- each, 53 currency notes of Rs. 5/- each, 11 currency notes of Rs. 2/- each, 38 currency notes of Rs. 1/- each and coins totalling Rs. 17/-. This is the evidence on record relating to the cash amount. It is in the circumstances impossible to come to the conclusion that it is the very cash, which was being carried by the complainant, Navinchandra and alleged to have been stolen. As already stated by me hereinabove, the complainant nowhere states in his evidence that the amount found in the house of accused No. 2 was his amount. He comes only with the bare case that he was having Rs. 10,000/- while going to Bombay for purchases and that the said amount of Rs. 10,000/- was stolen and further that the said amount of Rs. 10,000/- consisted of all Rs. 100/- currency notes. There is total lack of any identification nor is there any genuine or authentic link between the amount lost by Navinchandra and the amount found in the house of accused No. 2. It is, therefore, extremely difficult to come to a conclusion in this behalf against accused No. 2.

8. These being the only two items with which we are now concerned at this stage and the aforesaid being the state of record, relating to the same, it is, in my opinion, extremely difficult to convict the accused No. 2 on such state of the evidence on record. Mr. R.T Walavaikar, the learned Public Prosecutor, has however, very strenuously contended before me that there are certain circumstances on record which clinch the issue and bring home the guilt to accused No. 2. He submitted that it cannot be ignored that accused No. 2 was arrested immediately after disclosure made by accused No. 3. Such immediate arrest has not been denied. That it was in pursuance of a disclosure made by accused No. 3 has also not been denied. But it is a far jump from these circumstances to come to the conclusion that, therefore, accused No. 2 is guilty of theft. Of course, it would not be just to the prosecution to isolate and consider each circumstance by itself. One will have to consider the cumulative effect of various circumstances. But even adopting the said approach and also taking into account the other circumstances sought to be placed before me by the learned Public Prosecutor, I am not in a position to come to any different conclusion.

9. The other circumstances to which the learned Public Prosecutor referred to are that soon after the incident in question, accused No. 2 purchased a gold ring from a goldsmith in the town for Rs. 665/- and 3 days after the said purchase, accused No. 2 purchased another gold ring from the same goldsmith for a further equivalent amount of Rs. 665/- and that accused No. 2 had also placed an order with the same goldsmith for four gold leads valued at a total of Rs. 58/-. The learned Public Prosecutor, therefore, submits that these immediate purchases virtually clinch this matter against accused No. 2. Accused No. 2 is a police-man and the fact that soon after the incident in question, he has gone ahead and purchased the aforesaid gold ornaments, indicates that he had strong connections with the impugned crime. But in this behalf it is not as if accused No. 2 had no explanation at all. On the contrary, he has stated in his statement to the Court that he had withdrawn Rs. 600/- from his provident fund, Rs. 150/- from the Police Co-operative Society and Rs. 370/- from Post Office Compulsory Deposit Account and that he had also savings from his salary. Explanation of accused No. 2 is, therefore, there on record. It may be that this cannot be considered to be a totally satisfactory explanation. It also may be that accused No. 2 has not been able to explain the immediate need and the necessity for the purchases of all the aforesaid gold ornaments worth about Rs. 1,300/-. Of course, he has stated that as the price of gold was rising, he thought it best to invest in gold rather than keep cash. These explanations cannot convince one. However and at the same time, these explanations cannot be said to be totally unacceptable. These are plausible explanations though not very satisfactory. These explanations also are to an extent consistent with the innocence of accused No. 2 and not with certainty consistent with the only hypothesis to which such explanation must relate viz., the guilty of the accused, it is also in this context very relevant to note that it is the prosecution itself which has examined on Dagadu, the brother-in-law of accused No. 2 and this witness (who was declared hostile) has stated in his evidence that he had come from his native place to the house of accused No. 2 for the purposes of purchasing an engine for his family which owned an agricultural land and a wall and for that propose, he had brought the aforesaid amount with him. The object of coming to the house of accused No. 2 was to make the said purchase in the town of Bhusawal with the guidance and help of accused No. 2. He had stated that he had kept the said amount in a black bag which he had brought with him while coming to the house of accused No. 2. It is further significant to note that these statements made by Dagadu are not at all after thoughts, because at the very time of the raid on the house of accused No. 2, Dagadu had raised this objection and had objected to the seizure of this amount. That is also born out by the evidence of the panch who was present at the time of the raid and seizure. Now it may be true that even this evidence cannot appear to be very satisfactory and it also may be that accused No. 2 is taking advantage of the fact that Dagadu happened to be present at the crucial time in his own house. The story of purchase of engine may or may not be true, but the story cannot therefore, be totally discarded. This is a story which is again not inconsistent with the innocence of accused No. 2. This is a possible hypothesis which can be explained both ways. If that is the position, then the settled approach has been that an inference in favour of the accused has to be drawn. These, therefore, are the circumstances sought to be relied upon by the learned Public Prosecutor. However, I am not satisfied that these are such circumstances which can lead to the one and only inference of guilt of accused No. 2. On the contrary, these circumstances are capable of more than one explanation and more than one inference can be drawn therefrom. It is therefore, not possible to convict accused No. 2 on this evidence.

10. I may also mention that there was one more item viz., a burnt bag, article No. 32, found in the house of accused No. 2, but I do not find any of the complainants identifying the said bag as belonging to either of them, I further find that the learned Magistrate has, in his final order, directed the said bag to be returned to the present accused No. 2. Consistent inference, therefore, must follow that the said bag was of accused No. 2 particularly when even in appeal filed before the learned Additional Sessions Judge, no grievance was made by the prosecution regarding the order of the aforesaid return.

11. I must, however, say that though if has not been possible for me to come to a conclusion of guilt of accused No. 2 for this crime, grave suspicion arises in that behalf in respect of accused No. 2 also. But suspicion, however, grave cannot take the place of proof and if a reasonable doubt arises in the mind of the Court, benefit, thereof has to go to the accused person, it has also to be noted that the burden rests on the prosecution to bring home the guilt. If the prosecution fails to establish the same beyond reasonable doubt, the presumption of innocence in favour of the accused must be held to prevail. This, however, is not a case of any honourable acquittal of accused No. 2. On the contrary, this is a case where the accused gets advantage of the principle of benefit of doubt. The record of this case does cast grave suspicion upon the conduct of accused No. 2. The said conduct cannot be said to be above board. Whatever that may be, this being a criminal proceeding against accused No. 2 and the principles of criminal jurisprudence being well settled, I have no alternative than to pass, though reluctantly, an order of acquittal in favour of accused No. 2.

12. As a result of the order of acquittal of accused No. 2, consequence wilt follow that the property found in and taken possession of from the house of accused No. 2 on 7th June, 1977, will have to be returned to him. I order accordingly, subject to a further direction that the cash amount of Rs. 5042/- which was found in the house of accused No. 2 at the aforesaid time shall be returned not to accused No. 2 who does not claim the said amount to be his, but to prosecution witness No. 13, Dagadu Vishram, who claimed the said amount to be his and which fact has not been, at any stage, disputed by accused No. 2.

13. In the result, this revision application is allowed. The conviction and sentence of accused No. 2 is set aside. Fine, if any, paid be refunded.

14. The bait bond of accused No. 2 shall stand cancelled.

15. Rule absolute.