BABAN BAPURAO SARWADEversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:38003


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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                     CRIMINAL REVISION APPLICATION NO. 339 OF 2019
                               BABAN BAPURAO SARWADE
                                        VERSUS
                              THE STATE OF MAHARASHTRA

                                              ...
                Shri Avishkar Patil, advocate h/f Shri Salunke Sudarshan J.,
                Advocate for the Applicant.
                Shri M.A. Aher, APP for the Respondent/ State.
                                              ...


                                  CORAM : SUSHIL M. GHODESWAR, J.

                                  DATE : 20 August 2026

                P. C. :-

                1.          The applicant has filed this Criminal Revision

                Application against the impugned judgment and order dated

                16.11.2019 passed by learned Additional Sessions Judge,

                Majalgaon, in Criminal Appeal No.42/2015 thereby, dismissing

                the said appeal and confirming the judgment and order dated

                18.08.2015 passed by learned JMFC, Majalgaon, in RCC

                No.286/2012 whereby, the applicant is convicted for the offence

                punishable under Section 379 of the Indian Penal Code and

                sentenced to suffer Rigorous Imprisonment of one year and to

                pay fine of Rs.3000/- and in default to suffer Simple
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Imprisonment for two months


2.           According to the prosecution, on 21.10.2012 at

about 07:00 pm, PW-2 (Kalyan Phaphal) tied his buffaloes and

calf at cattle shed in his field and went to his house. On next day

i.e. 22.10.2012 at about 06:00 am, PW-2 did not find buffaloes

and calf in the cattle shed. He took search and when PW-2 went

to cattle shed of his cousin Maroti (PW-4), PW-4 informed that

his buffaloes is also not at the place where it was tied. Therefore,

both started search of their cattle. PW-4 Maroti sent his younger

brother Swanand and his son Gorakh for search of animals at

cattle market. When Swanand and Gorakh were taking search at

cattle market at village Ghodegaon in Ahilyanagar district, they

saw one person standing there for sell of buffaloes and calf. This

fact was told by them on phone to PW-2. Accordingly, the

information was given to the Police Station, Dindrud and

thereafter, the police along with PW-2, PW-4 and other persons

went at animal market, Ghodegaon. After reaching there, they

found the present applicant, who was standing along with stolen

animals. Upon enquiry, the applicant did not give satisfactory

answers. Therefore, PW-2 lodged the report on 27.10.2012 with
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the Dindrud Police Station.


3.          On the basis of the said report, investigation was set

in motion. The Investigating Officer collected evidence. After

completion of investigation, the charge-sheet came to be filed.

The charge was framed to which the applicant/ accused pleaded

not guilty and claimed to be tried. Thus, the applicant was

prosecuted for the offence punishable under Section 379 of the

Indian Penal Code. After recording evidence and hearing

arguments, vide the judgment and order dated 18.08.2015, the

learned JMFC convicted and sentenced the applicant as noted

above.   Being aggrieved by the order dated 18.08.2015, the

applicant/ accused filed Criminal Appeal No.42/2015 before the

learned Additional Sessions Judge, Majalgaon, who dismissed

the appeal vide impugned judgment and order dated 16.11.2019.

Hence, the applicant is before this Court.


4.          Learned advocate for the applicant/ accused submits

that both the courts below have committed grave error in law

thereby, not appreciating evidence in proper perspective. The

finding recorded by learned JMFC as regards the offence

registered against the applicant that the applicant has stolen
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animals belongings to PW-2 (Kalyan) and PW-4 (Maroti), is

incorrect. Learned advocate further submits that there is no

evidence to suggest that the stolen animals have been stolen by

the applicant. The prosecution has failed to prove that the stolen

animals i.e. buffaloes and calf were owned by PW-2 and PW-4.

There is no satisfactory explanation in the FIR or in the evidence

of the prosecution witnesses explaining the delay of about five

days in lodging the FIR. Learned advocate submits that the

witnesses are interested and their testimony is required to be

scrutinized carefully. According to learned advocate, learned

JMFC has committed an error in relying upon such witnesses. As

such, the reasoning given by both the Courts below is incorrect.

Learned advocate, therefore, prayed for allowing this revision

and acquitting the applicant/ accused.


5.          Per contra, learned APP submits that the courts

below have not committed any mistake and error in passing the

impugned judgments. The prosecution has established guilt of

the applicant beyond reasonable doubt. The courts below have

appreciated evidence in proper perspective and there is no doubt

in evidence so as to suggest that other than the present applicant,
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other accused persons are responsible for commission of theft of

buffaloes and calf. As the prosecution has succeeded in

establishing its case before the Trial Court, therefore, conviction

recorded by the Trial Court is required to be maintained by this

Court as it has been rightly maintained by the learned Sessions

Judge. According to the learned APP, since the courts below have

not committed any mistake or error in law in convicting the

applicant, therefore, no interference is warranted in this revision.

As such, the revision is required to be dismissed.


6.           After hearing the learned advocates for the parties

and after going through the record, it is clear that the applicant

came to be prosecuted for the offence punishable under Section

379 of the Indian Penal Code on the basis of the report lodged by

PW-2 (Kalyan Phaphal). Learned Sessions Judge was pleased to

observe that the present applicant was found standing along with

stolen animals in the cattle market at Ghodegaon and the said

fact has been stated by PW-2 and PW-3 in their evidence.

Though the incident took place from the evening of 21.10.2012

till morning of 22.10.2012, but as PW-2 and PW-4 were in search

of stolen animals, they could not lodge the report and when they
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found stolen animals at cattle market at Ghodegaon, the report

came to be lodged on 27.10.2012. Therefore, learned Sessions

Judge has rightly held that delay in lodging the FIR is not serious

concern and is not fatal to the prosecution case.


7.           On independent consideration of the evidence on

record, I find that the material witnesses have consistently stated

about the theft of the animals, the efforts made to trace them and

the finding of the animals in the possession of the applicant at the

cattle market at Ghodegaon. Their evidence on material

particulars has not been shaken in cross-examination. The delay

in lodging the report has been explained in the circumstances

noticed hereinabove and does not create such a doubt as would

discredit the otherwise reliable prosecution evidence. The learned

Magistrate as well as the learned Additional Sessions Judge have

considered the material evidence in its proper perspective and the

findings recorded by them cannot be said to be perverse,

unreasonable or contrary to the evidence on record. No

jurisdictional   error, illegality or   material irregularity is

demonstrated warranting interference in exercise of revisional

jurisdiction. In view of concurrent findings by both the Courts
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below, no interference is warranted in this revision. The revision

is devoid of any merit and is liable to be dismissed.


8.           However, so far as the sentence is concerned, the

incident is of the year 2012 and the applicant was aged about 38

years at the relevant time. Thus, a substantial period of about

fourteen years has elapsed since the date of the incident, during

which period the applicant has faced the criminal prosecution

and the subsequent appellate and revisional proceedings. The

offence under Section 379 of the Indian Penal Code is punishable

with imprisonment of either description for a term which may

extend to three years, or with fine, or with both. Thus, the statute

itself provides for imposition of fine as an alternative to

imprisonment. Having regard to the nature of the offence, the

passage of considerable time since the occurrence and the overall

facts and circumstances of the case, I am of the view that sending

the applicant to undergo the sentence of imprisonment at this

stage would serve no useful purpose. At the same time, the

conviction recorded by the Courts below deserves to be

maintained. In the peculiar facts and circumstances of the present

case, the sentence of imprisonment is, therefore, modified and
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      the applicant is sentenced to pay a fine of Rs.3,000/- instead of

      undergoing the sentence of imprisonment awarded by the Courts

      below.


      9.             The Criminal Revision Application is, accordingly,

      disposed of.




kps                             ( SUSHIL M. GHODESWAR, J. )