SACHIN BHASKAR KAMBALEversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:38687


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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                     CRIMINAL REVISION APPLICATION NO. 274 OF 2016
                               SACHIN BHASKAR KAMBALE
                                            VERSUS
                              THE STATE OF MAHARASHTRA
                                              ...
                Ms. Shilpa Aurangabadkar, advocate h/f Shri Jadhav Satej S.,
                Advocate for the Applicant.
                Ms. B.B. Gunjal, APP for the Respondent/ State.
                                              ...


                                  CORAM : SUSHIL M. GHODESWAR, J.

                                  DATE : 25 August 2026


                P. C. :-

                1.          The applicant is challenging the impugned judgment

                and order dated 21.12.2016 passed by the learned District Judge-

                1, Newasa, in Criminal Appeal No.4/2016 thereby, dismissing the

                appeal filed by the present applicant and confirming the

                judgment and order of conviction dated 01.01.2016 passed by the

                learned JMFC, Newasa, in RTC No.196/2013 whereby, the

                applicant is convicted for the offence punishable under Section

                379 of the Indian Penal Code and is sentenced to suffer rigorous

                imprisonment for five months and to pay fine of Rs.3000/- and in

                default of payment of fine, to suffer rigorous imprisonment of
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one month.


2.           The prosecution case, in brief, is that on 08.05.2013

at about 1:00 p.m., PSI Mahaveer Jadhav-PW-1 (informant)

along with police staff intercepted a dumper bearing registration

No. MH-20/CT-2996 near Bhairavnath Temple on Mhalas

Pimpalgaon–Wadala Road. The dumper was allegedly carrying

about three brass of sand. The applicant/ accused No.1 Sachin

was found driving the said dumper. On inquiry, he allegedly

failed to produce any permit authorising excavation and

transportation of the sand. The accused and the dumper were

accordingly taken to Police Station Sonai, where PSI Jadhav

lodged the complaint. Accordingly, Crime No. I-73 of 2013 came

to be registered. During investigation, the spot panchnama was

drawn, statements of witnesses were recorded and, upon

completion of investigation, charge-sheet was filed against

accused No.1 Sachin, the driver of the dumper and accused No.2

Anant Jagtap, alleged owner of vehicle.


3.           The learned Trial Court framed charges against the

accused for the offences punishable under Section 379 read with

Section 34 of the Indian Penal Code, Section 15 read with
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Section 3 of the Environment (Protection) Act and Section 3 read

with Section 181 of the Motor Vehicles Act. The accused pleaded

not guilty and claimed to be tried. During the trial, the

prosecution examined five witnesses, including the informant

PSI Mahaveer Jadhav (PW-1), police witnesses Nitin Saptarshi

(PW-2) and API Patil (PW-3), panch witness Balasaheb Ambade

(PW-4), and investigating officer PHC Arjun Ware (PW-5). Upon

appreciation of the evidence, the learned Trial Court convicted

accused No.1 Sachin for the offence punishable under Section

379 of the Indian Penal Code, whereas, accused No.2 Anant is

acquitted. The applicant/ accused No.1 preferred the appeal,

which came to be dismissed vide the impugned judgment. Hence,

this revision.


4.           Learned advocate for the applicant vehemently

submits that both the Courts below have failed to appreciate

evidence on record in proper perspective. According to her, the

applicant is driver on the truck owned by accused No.2 Anant

and he was following the instructions of his master, as such, he is

not involved in commission of the crime in question. The

applicant was only entrusted with the task of driving the vehicle
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and he is not responsible for the sand filled in by the workers in

vehicle. By no stretch of imagination, the applicant cannot be

said to be guilt of the offence of theft. The applicant deserves to

be given benefit of doubt. The prosecution has virtually failed to

establish that the property i.e. sand was really belonging to the

State Government. Merely intercepting the vehicle carrying sand

cannot be presumed that the property found in the vehicle

belongs to the Government. Therefore, there being very weak

evidence against the applicant so as to convict him, the impugned

orders need to be quashed and set aside.


5.          Per contra, learned APP strongly opposes the

revision. According to her, the prosecution has established guilt

of the applicant. The applicant was found in possession of

property which is belonging to the Government. The police

officers who have deposed against the applicant are not having

any grudge against him so as to implicate him in false case,

therefore, their evidence cannot be discarded straightway.

Learned APP, therefore, submits that the impugned orders are

correct and proper and require no interference at the hands of this

Court.
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6.           After hearing the learned advocates and going

through the record available, I find that the applicant is driver on

the offended truck called as ‘dumper’. The material on record

indicates that the dumper was intercepted while carrying sand

and, on inquiry, the applicant was not in possession of requisite

permit for transportation thereof. However, the prosecution has

not brought on record cogent evidence to establish the source

from which the said sand was excavated, the person in whose

possession the same was immediately prior to its alleged

removal, or that the applicant had dishonestly removed the said

sand from such possession without consent. On the basis of

suspicion and doubt, the informant police appears to have taken

recourse to prosecute the driver and owner of vehicle. The

learned JMFC has observed that accused No.2 Anant was not

present at the time of incident. According to the prosecution,

accused No.2 was owner of vehicle and on his say, the applicant/

accused No.1 committed offence. However, the learned JMFC

was pleased to observe that since no evidence is produced by the

prosecution showing ownership of the vehicle, the said accused

No.2 came to be acquitted. I find that the acquittal of accused

No.2, who was alleged to be the owner of the vehicle, is not by
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itself determinative of the present revision. The question,

however, is whether the evidence on record establishes the

essential ingredients of theft against the applicant. Section 378 is

useful for the purpose of deciding this revision. Section 378 of

the Indian Penal Code reads as under:-


     “378. Theft.—Whoever, intending to take dishonestly
            any movable property out of the possession of
            any person without that person's consent,
            moves that property in order to such taking, is
            said to commit theft.”



7.           In pursuance of the aforesaid provision of law, it

was mandatory on the part of the prosecution to establish that the

applicant has taken out the property out of possession of any

person without that person’s consent with dishonest intention. In

this case, the prosecution was required to establish that the stolen

property was indeed property of the Government. There is no

evidence of any authority brought on record to establish that the

stolen property was belonging to any authority or the

Government. It is not proved that stolen property belongs to the

State Government. The Investigating Officer ought to have

obtained the report from the Tahasildar to claim that the stolen

property was the State property.
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8.           It   is   true   that    unauthorised   excavation     or

transportation of sand may, in an appropriate case, constitute an

offence of theft if the prosecution establishes that the sand, being

in the possession of the State or any other person, was

dishonestly removed without consent. However, the mere

absence of a permit or authority for transportation of sand, by

itself, does not establish all the ingredients of theft. The

prosecution must prove the essential ingredients of Section 378

of the Indian Penal Code by cogent and reliable evidence. In the

present case, no evidence has been brought on record to establish

that the particular quantity of sand found in the dumper had been

dishonestly removed from the possession of the State or any

other identifiable person without consent. There is also no cogent

evidence to establish the applicant's participation in such alleged

removal or the requisite dishonest intention. The applicant being

the driver of the vehicle, by itself, cannot lead to an inference

that he had committed theft of the sand carried in the vehicle.


9.           In view of the above discussion, I am of the opinion

that both the Courts below have committed grave error in

convicting the applicant under Section 379 of the Indian Penal
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      Code. Hence, the following order:-


                                     ORDER


      (a)      The Criminal Revision Application is allowed.


      (b)      The impugned judgments and orders of the Courts below

      are quashed and set aside and the applicant is acquitted of the

      offence punishable under Section 379 of the Indian Penal Code.


      (c)      The applicant is on bail. His bail bond stands cancelled

      and the surety, if any, stands discharged.


      (d)      The fine amount, if deposited, be refunded to the applicant.


      (e)      The record and proceedings be sent back to the concerned

      Court.




kps                               ( SUSHIL M. GHODESWAR, J. )