[Cites 4, Cited by 0]
Bombay High Court
Baby Suresh Badade vs The State Of Maharashtra on 20 February, 2026
Author: R.N. Laddha
Bench: R.N. Laddha
Digitally
signed by
CHITRA
2026:BHC-AS:8792 CHITRA
SANJAY
SANJAY
SONAWANE
SONAWANE Date:
2026.02.20
18:58:32
+0530
Chitra Sonawane. 3-revn-16-2005.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Revision Application No.16 of 2005
Baby Suresh Badade
Age 45 years, Occ.: Household,
R/o. 292, Ramoshi Aali,
Hadapsar, Pune.
(Presently at Yerwada Jail) ... Applicant
versus
The State of Maharashtra ...Respondent
----
Mr Digvijay S Kachare i/b Mr Kuldeep Patil, for the Applicant.
Ms AA Deshmukh, APP, for the Respondent / State.
----
Coram: R.N. Laddha, J.
Date: 20 February 2026
P.C.:
The present revision application takes exception to the
judgment and order dated 13 January 2005, passed by the
learned Additional Sessions Judge, Pune, in Criminal Appeal
No.84 of 2004, confirming the conviction recorded under
Section 379 of the Indian Penal Code ('IPC') by the learned
Judicial Magistrate First Class, Cantonment, Pune, in RCC
No.360 of 1998 vide the judgment and order dated 12
February 2004.
2. It is the case of the prosecution that on 10 October 1998,
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at about 6:00 p.m., in front of Prem Hardware shop, the
accused committed a theft of a bag containing cash amounting
to Rs.10,400/- and documents.
3. After investigation, a charge sheet was filed. The accused
abjured his guilt and claimed to be tried. During the trial, the
prosecution examined as many as three witnesses, namely,
Dnyaneshwar Shankar Salunkhe, the informant (PW-1);
Shankar Satyaba Pimpalekar, the panch witness to the spot
panchnama (PW-2); and Trimbak Rambhau Tandale, the
investigating officer (PW-3). After the prosecution closed its
evidence under Section 313 of the Code of Criminal Procedure,
1973, the accused were questioned as to the incriminating
circumstances. He denied them as false and did not adduce
defence evidence.
4. Upon appreciation of the evidence, the trial Court
returned a finding of guilt and convicted the applicant of the
offence punishable under Section 379 IPC and sentenced her to
undergo simple imprisonment of six months and pay a fine of
Rs.500/-, with default stipulations. In appeal, the appellate
Court dismissed the appeal and maintained the conviction.
Aggrieved and dissatisfied, the applicant invoked this Court's
revisional jurisdiction.
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5. Heard the learned Counsel appearing on behalf of the
applicant and the learned Additional Public Prosecutor
representing the respondent/ State, and perused the records and
proceedings.
6. The applicant's conviction under Section 379 IPC rests
primarily upon the testimony of PW-1, the purported recovery
under a disclosure panchnama, and the evidence of PW-3.
Upon a careful examination of the records, it transpires that the
prosecution's evidence falls short of the standard required to
sustain a conviction for theft. The deficiencies are neither
peripheral nor trivial; they go to the root of the prosecution
case and render the finding of guilt legally unsustainable.
7. Section 379 IPC requires the prosecution to establish
beyond a reasonable doubt that movable property was
dishonestly taken out of the possession of the complainant
without his consent. The foundational burden, therefore, is to
prove (i) the act of taking, (ii) the identity of the offender, and
(iii) the dishonest intention accompanying such taking. In the
present case, none of these essential elements stands proved
with the degree of certainty mandated by the law.
8. A close scrutiny of PW-1's deposition reveals that he did
not witness the act of theft. His version is that while purchasing
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a tin of paint from Prem Hardware, his rexine bag was on his
shoulder. After the purchase, when he touched the handle of his
moped, he found human waste smeared upon it. Distracted and
nauseated, he wiped his hand and thereafter realised that his
bag was missing. Significantly, he did not see anyone removing
the bag. His assertion against the accused is based purely on
suspicion.
9. PW-1 also deposed that a young girl in a school uniform
was passing by and that he suspected a lady seated on an oota
who was staring at his vehicle. The identification of the accused
is thus not the result of any direct observation of the theft, but
rather a post facto suspicion. Suspicion, however strong, cannot
substitute legal proof. The identification is further weakened by
the absence of any test identification parade. The dock
identification, made for the first time during trial, carries
minimal probative value, especially when the witness had only a
fleeting and uncertain opportunity to observe the alleged
suspect.
10. The testimony of PW-1 also suffers from internal
inconsistencies. In cross-examination, he admitted that he had
not locked his vehicle while purchasing the paint and that hand
carts were stationed near the spot. He further admitted that he
did not enquire with the lady whom he suspected at the
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relevant time. However, he later stated that he had enquired
with persons who gathered after the incident, an assertion not
made in his examination-in-chief. Such embellishments
introduced during cross-examination cast doubt on the
reliability of his narrative. Additionally, PW-1 admitted that he
first went to Vaibhav Theatre and thereafter to the police
station before returning to the scene with constables, thereby
creating a temporal gap that remains unexplained. This
sequence of events leaves open multiple possibilities
inconsistent with the prosecution's theory.
11. The prosecution has also relied heavily upon an alleged
disclosure and recovery. However, the evidentiary foundation
of this recovery is gravely infirm. PW-2, the panch witness,
categorically stated that he was summoned to the police station
and signed at two places on an already prepared panchnama.
He turned hostile and denied that the accused made any
disclosure in his presence. He further denied visiting the
location where the alleged cash was kept and stated that the
panchnama was not signed by the accused in his presence.
Though he admitted his signature, he disowned the contents of
the document.
12. The credibility of PW-2 is not rehabilitated by the
prosecution. His testimony reveals that he was acquainted with
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police personnel and had served as a panch witness in other
matters. This circumstance, while not by itself fatal, accentuates
the need for caution. More importantly, the prosecution failed
to elicit any material admission from him to substantiate the
voluntariness or authenticity of the alleged disclosure under
Section 27 of the Indian Evidence Act. In the absence of reliable
panch evidence, the recovery becomes suspect.
13. The evidence of PW-3, the investigating officer, does not
cure these defects. He deposed that the accused confessed and
led the police to her house where Rs.4,400/- in cash and a
necklace valued at Rs.6,000/- were seized. However, this
alleged recovery suffers from multiple infirmities. First, the
total amount allegedly recovered does not correspond precisely
to the amount said to have been stolen. Second, there is no
cogent evidence linking the seized cash and necklace specifically
to the informant. Currency notes are fungible; absent
distinctive markings or identification, mere possession of cash
cannot establish that it forms part of the stolen property. As
regards the necklace, there is no independent proof that such
an article was contained in the bag or that it belonged to PW-1.
14. Furthermore, PW-3 admitted in cross-examination that he
did not conduct any enquiries with the owner of the hardware
shop or neighbouring shopkeepers. In a public place at about
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6:00 p.m., it is reasonable to expect the presence of
independent witnesses. The failure to examine any such witness
is a serious lacuna. PW-3 also denied the presence of hand carts
near the spot, contradicting PW-1's version. This inconsistency
between the PW-1 and PW-3 further erodes the coherence of
the prosecution case.
15. It is equally significant that no effort was made to
establish a clear chain of circumstances pointing unerringly to
the guilt of the accused. The case is not one of direct evidence;
it is, at best, circumstantial. In such cases, the circumstances
must be fully established and must exclude every hypothesis
except that of guilt. Here, the circumstances are neither firmly
proved nor conclusive in nature. The prosecution has failed to
eliminate alternative possibilities, including theft by some
unknown person amidst the surrounding activity and
congestion. The cumulative effect of these deficiencies is
decisive. The conviction rests on suspicion, a contested and
unreliable recovery and an investigation marked by omissions.
The prosecution has not discharged its burden of proving the
guilt of the applicant beyond a reasonable doubt. The cardinal
principle of criminal jurisprudence, that the accused is entitled
to the benefit of doubt, squarely applies.
16. In light of the foregoing discussion, the present revision
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application stands allowed. Accordingly, the judgment and
order dated 13 January 2005, passed by the learned Additional
Sessions Judge, Pune, in Criminal Appeal No.84 of 2004, and
the judgment and order dated 12 February 2004, passed by the
learned Judicial Magistrate First Class, Cantonment, Pune, in
RCC No.360 of 1998, convicting the applicant, are quashed
and set aside. The applicant stands acquitted of the offence
punishable under Section 379 of the IPC.
[R.N. Laddha, J.]
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20 February 2026
