SHANKAR KISHANRAO RATHODversusTEJERAO CHATRU PAWAR AND ANOTHER

2026:BHC-AUG:44702


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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 114 OF 2026

                 .     Shankar Kishanrao Rathod
                       Age: 68 years, Occu.: Retired Headmaster,
                       R/o. Hanegaon, Tq.Degloor,
                       District : Nanded.                        ….Appellant


                             Versus

                 1.    Tejerao Chatru Pawar
                       Age: 61 years, Occu.: Nil,
                       R/o. Sevadas Nagar,
                       Hanegaon, Tq.Degloor,
                       District Nanded.

                 2.    The State of Maharashtra
                       Through Police Station Officer,
                       Police Station Markhel,
                       Tq.Degloor, District Nanded.                …..Respondents
                                                 …..
                 Mr.Vishwanath P.Golewar, Advocate for Appellant.
                 Mr.Krishna Rodge, Advocate for Respondent No.1.
                 Mr.N.D.Raje, APP for Respondent No.2.
                                                …..
                                          CORAM :         ABHAY S. WAGHWASE, J.

                                          Reserved on         : 23-09-2026
                                          Pronounced on       : 30-09-2026

                 JUDGMENT :


                 1.    In the instant appeal, there is challenge to Judgment and order

                 dated 21-02-2023 passed by learned Additional Sessions Judge, Biloli,

                 in Criminal Appeal No.34 of 2018 acquitting present respondent No.1
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from charge under Section 381 of the Indian Penal Code (IPC),

arising out of Judgment and order of conviction dated 09-07-2018

passed by learned Judicial Magistrate First Class (JMFC), Degloor in

R.C.C. No.139 of 2009.


2.    Before learned trial Court, case set up by prosecution was that,

respondent No.1/accused, by use of duplicate key, had opened

cupboard and stolen muster roll / attendance register from the School

and was running away from the School premises.         Report to that

extent was received by Police Station Officer at Markhel Police

Station, who registered Crime bearing No.51 of 2009 for offence

under Section 381 of the IPC. Trial was conducted before learned

JMFC, Degloor vide R.C.C.No.139 of 2009 and by Judgment and

order dated 09-07-2018, learned JMFC was pleased to convict

accused.

      Feeling aggrieved by the same, accused/respondent No.1

approached the Court of learned Additional Sessions Judge, Biloli by

filing Criminal Appeal No.34 of 2018 and succeeded in the same as he

was acquitted vide Judgment and order dated 21-02-2023. Hence,

the instant appeal.


3.    Heard both sides.
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4.    Learned counsel for appellant pointed out that, prosecution has

adduced cogent, reliable and convincing evidence about accused

coming to School premises, entering office and while others were

busy in morning prayer, by using duplicate key, he opened cupboard

and removed the muster roll register without permission and consent

and secretly was seen leaving the School premises.       The learned

counsel for appellant pointed out that, the said act amount to theft.

That, apart from complainant, teachers and staff, who had seen the

above act of accused, have deposed to that extent in the Court. That,

learned trial Court had rightly appreciated the same and also

convicted the accused. According to him, there was no infirmity or

illegality in the said Judgment. However, learned First Appellate

Court unnecessarily overturned the above Judgment of conviction and

acquitted the accused without assigning any sound reasons.

According to him, complainant’s evidence was supported by evidence

of three teachers and their evidence remained intact, but the same

has been incorrectly appreciated by the learned First Appellate Court.

For above reasons, he prays to set aside the Judgment and order of

the learned Additional Sessions Judge, Biloli and to restore the

Judgment and order of conviction passed by the learned JMFC,

Degloor.
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5.    In answer to above, learned counsel for respondent No.1

supported the Judgment and order of the learned First Appellate

Court and prays to dismiss the appeal for want of merits.


6.    Re-appreciated the entire evidence.

      PW1 Shankar Kishanrao Rathod seems to be informant, who set

law into motion vide report Exhibit 12; PW2 Fulsing Goma Rathod,

PW3 Dasharath Ramji Chavan, PW5 Nisar Husain Abdul Raheman

seem to be Teachers, PW4 Sriram Damla Chavan, seems to be Lab

Technician and PW7 Prabhakar Kundalikrao Bhalke seems to be

Lecturer and they have testified at Exhibit Nos.11, 17, 18, 20, 19 and

28 respectively; PW8 Maheboob Jalal Baig seems to be Investigating

Officer.

      Here, learned trial Court upheld conviction but learned First

Appellate Court overturned the same and acquitted the accused.

      Primarily, offence is of committing theft, which is dealt by

Section 378 of the IPC.     To attract the said charge, the essential

ingredients could be summarized as under :

Firstly, accused must have dishonest intention to take the property.

Secondly, the property must be movable.

Thirdly, the property must have been taken out of possession of

another resulting into wrongful gain by one and wrongful loss to
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another.

Fourthly, property must be moved in order to taking it by deception

and lastly, taking must be without ones consent.



7.    Law to above requirement is dealt by the Hon’ble Apex Court in

the case on K.N.Mehra v. State of Rajasthan, MANU/SC/0030/1957.

Further, it is settled position that there has to be mens rea and

dishonest intention and further removal without consent. Law to this

extent is dealt by the Hon’ble Apex Court in the case of Pyare Lal

Bhargava v. State of Rajasthan, AIR 1963 SC 1094.

      Having dealt with above settled position, here available

evidence is put to scrutiny. Before learned trial Court, prosecution

has adduced evidence of as many as eight witnesses. There is no

dispute that accused was working as a Peon in the very School of

which informant was Head Master. Rest of the witnesses are teaching

and non-teaching staff.

      On complete re-appreciation of their testimonies, it is noticed

that they all are consistent about occurrence taking place on

16-09-2009 during School hours.

      PW1 Shankar in his evidence stated that, at around 10:00 a.m.

accused was seen opening the cupboard with a duplicate key, moving

out the attendance register and leaving the place. Testimony of
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informant is finding support from PW2 Fulsing, PW3 Dasharath, PW4

Sriram.   These witnesses, who are teachers and lab technician

respectively, are natural witnesses being staff of the School. They

have all categorically deposed about seeing accused removing register

from School cupboard. In their cross-examination, nothing damaging

has been brought except timing of the occurrence, and who all are

present around. The act of removing the register from cupboard of

School has apparently brought on record. Questioning by informant

to accused how register is being removed when he had keys, itself

signifies the act of accused was without consent of informant Head

Master, who was incharge of school administration. Once he was not

aware of the purpose of opening the cupboard and removing muster

register, the offence of theft is complete.      Accused has not only

removed the register but he fled with the same and therefore, act of

taking away it with dishonest intention is also made out. Prosecution

witnesses are direct eye witnesses.



8.    The tenor of the cross-examination also shows that case was

tried to be advanced that there was false implication as a result of rift

between accused and management.          It was brought out in cross-

examination that several litigations were pending, but mere

suggestion to that extent would not be sufficient to probabilize his
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defence. Here, as stated above, accused was seen doing the act of

removing register by using duplicate key when original key was with

PW1 informant and all prosecution witnesses are unanimous on the

same. Therefore, above defence holds no substance.



9.    Learned trial Court has correctly appreciated the evidence,

dealt with legal requirements and on finding evidence to that extent

and availability of essential ingredients, rightly convicted the accused.

On the contrary, learned First Appellate Court seems to have given

undue importance to the variance in the timings, presence of the

informant in the School and differences between management and

accused, to render case of prosecution doubtful.        However, such

approach of First Appellate Court was apparently incorrect.          The

direct evidence in the form of testimony of PW1 Shankar, PW2

Fulsing, PW3 Dasharath and PW4 Sriram has not been correctly

appreciated. First Appellate Court also seems to have lost sight of the

availability of essential requirements emerging from act of accused.

Resultantly, when it is demonstrated by cogent evidence that accused

removed register from the School cupboard without consent of PW1

Shankar, informant, and fled with it, the offence is complete.

Therefore, in the light of above discussion, appellant succeeds.

Accordingly, following order is passed :
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                                ORDER

I.    The Criminal Appeal is allowed.


II.   The Judgment and order dated 21-02-2023 passed by the
      Additional Sessions Judge, Biloli in Criminal Appeal No.34 of
      2018 is quashed and set aside.


III. The Judgment and order dated 09-07-2018 passed by the
      Judicial Magistrate First Class, Degloor in R.C.C. No.139 of 2009
      is hereby confirmed.




                                          [ABHAY S. WAGHWASE, J.]



SPT