JUDGMENT - R.L. AGGARWAL, J.:---The appellants were tried by the learned Special Judge, Kolhapur, for offences under section 409 read with section 34, and section 468 read with section 34, and section 477-A read with section 34 I.P.C. and section 5(1)(c) read with section 5(2) of the Prevention of Corruption Act. Original accused No. 1 Shelar was convicted for all the said offences. Original accused No. 2. Sankapal was acquitted of the offence under section 409 read with section 34 I.P.C. and section 5(1)(c) of the Prevention of Corruption Act. Both the accused were charge-sheeted in the following circumstances :--- 2. The Zilla Parishad had undertaken construction work of certain roads in Radhanagari Sub-Division, Kolhapur, in the year 1971-1972. Accused No. 1 was the overseer and accused No. 2 was the Mistry, between the period 18th March, 1971 to 14th July, 1972 being the relevant period for the purposes of this case. 3. It was the duty of accused No. 1 to supervise over the work of Road construction and to obtain muster-rolls from the Deputy Engineer. The duty accused No. 2 was to fill in the muster-roll by marking attendance of the workers and mentioning daily wages earned by them. Accused No. 1 was required to take measurements and mention the rate of wages and submit the muster-rolls to the Deputy Engineer for checking and passing to enable the accused No. 1 to receive the amount from B.D.O. for disbursement to the workers. Another duty of accused No. 2 was to identify the workers and to witness the payment. According to the prosecution a total amount of Rs. 156/- had been misappropriated by both the accused. There were alleged payments to one Babu Shiva for 52 days at the rate of Rs. 3/- per day, thus making Rs. 156/-. These payments were alleged to have been made by forging entries in Exhibits 18,19 and 20. The thumb impressions alleged to be that of Babu Shiva were not in fact his thumb impressions. In Ex. 18, it is shown that Babu Shiva worked for 5 days and received payment of Rs. 15/- in Ex 19, it is shown that Babu Shiva worked for 25 days and paid Rs. 75/- and in Ex. 20, it is shown that Babu Shiva worked for 22 days and was paid Rs. 15/-. In Ex. 18, it is shown that Babu Shiva worked for 5 days and received payment of Rs. 15/- in Ex 19, it is shown that Babu Shiva worked for 25 days and paid Rs. 75/- and in Ex. 20, it is shown that Babu Shiva worked for 22 days and was paid Rs. 15/-. According to the prosecution, Babu Shiva in fact did not work during these periods. 4. An application was made by the villagers to the Anti-Corruption Department and the same was forwarded to the Police Inspector, Nerlekar for inquiry. Shri Nerlekar collected evidence and got finger prints examined by the Finger Print Expert and submitted the report. Further investigation was taken over by Shri Heddur, Police Inspector, Anti-Corruption Branch and he was directed by the Director to file a complaint against the accused persons and accordingly, Shri Heddur filed a complaint at Gagan Bavada Police Station on 19th September, 1974. He thereafter requested the Dy. S.P./A.C.B., Poona, to take up the investigation of the offence who was unable to do so because of other pre-occupations and asked Shri Heddur to continue with the investigation. Shri Heddur obtained necessary permission from the Judicial Magistrate, First Class, Court No. 1, Kolhapur. After completion of the investigation and necessary sanction of the Chief Executive Officer, Zilla Parishad, a charge-sheet was filed before the learned Special Judge, Kolhapur. 5. Both the accused denied the charges brought against them. Accused No. 1 admitted that he was an overseer at the relevant time and that the amount was entrusted to him for disbursement. He maintained that Babu Shiva was shown to have worked and received the total payment of Rs. 156/- under Exhibits 18, 19 and that the thumb impressions were obtained against his entries, in the muster-rolls which were maintained by accused No. 2 and which bear the signatures of accused No. 2. He also admitted that his finger prints were obtained by Shri Nerlekar. He further admitted that he has signed the muster-rolls in token of his inspection in the relevant muster-rolls, i.e. Exs. 18,19 and 20. 6. Accused No. 2 admitted that he was a Mistry and that it was his duty to file up the muster-rolls and to calculate the wages payable to workers. He also admitted that he had written the relevant muster-rolls, Exs. 18,19 and 20. 18,19 and 20. 6. Accused No. 2 admitted that he was a Mistry and that it was his duty to file up the muster-rolls and to calculate the wages payable to workers. He also admitted that he had written the relevant muster-rolls, Exs. 18,19 and 20. According to him he was asked to report on duty at Gagan Bavada and look after nine construction works under the Crash programme. He found that it was hilly area and there was no S.T. service in that part. It was not possible for him to go on each of the sites and allot work every day. Mukadam used to maintain Kacchi Hajeri. Whenever he went on the site once in a fortnight he found that the work was allotted to different groups. He used to prepare a Pucca Muster Roll from the Kacchi Hajeri maintained by the Mukadams. He had to keep complete faith in the Mukadams because he did not know the workers. He used to help the overseer in taking measurements and for disbursing payments. According to him he used to verify the identity of the workers from the Mukadam and after verifying the same, he used to ask the person to sign or give his thumb impression and he used to attest it solely relying upon the Mukadam for the purpose. There used to be 400 to 500 workers on each site. According to both the accused the witnesses deposed against them because they were paid lesser wages as their out turn of work was less. This gave a rise to a dispute and the witness had refused to take wages. Witness Palande was taking away stones and witness Raghunath Sapakal was helping him. They were warned by the accused and therefore they got annoyed and thus deposed against them. Witness Vichare did not give an account of the implements given to him for safe custody and this gave rise to a dispute. Witness Apishte had deposed against them at the instigation of the other witness. 7. The learned Special Judge, on examination of the oral and documentary evidence led before him came to the conclusion that the various offences as enumerated at the outset were proved against accused Nos. 1 and 2 and accordingly he convicted them and sentenced them to suffer R.I. for six months and to pay a fine of Rs. 7. The learned Special Judge, on examination of the oral and documentary evidence led before him came to the conclusion that the various offences as enumerated at the outset were proved against accused Nos. 1 and 2 and accordingly he convicted them and sentenced them to suffer R.I. for six months and to pay a fine of Rs. 200/- in default R.I. for three months on each count and directed the substantive sentences to run concurrently. Being aggrieved by this order of conviction and sentence, the accused have come up in appeal. 8. Mr. Bhimrao Naik, learned Counsel for the appellants-accused has contended that the prosecution evidence is not reliable and satisfactory and, therefore, both the appellants-accused are entitled to be acquitted of all the charges. 9. In support of the case, the prosecution has examined 7 witnesses. P.W. No. 5 Vyankatesh Katti was working as Deputy Engineer with the Zilla Parishad Kolhapur, at the relevant time. He gives an account of the duties of accused No. 1 as well as of accused No. 2 as an overseer and mistry respectively, how the amount of wages is entrusted to accused No. 1 for disbursement and the manner in which the muster-rolls are issued and maintained. He also stated that Mukadams were appointed for supervising over the work and they used to write Kacchi Hajeri before the Mistry came to the site and that it was the duty of the Mistry to check the attendance, by going to the site. There is no reason to disbelieve the evidence of this witness. 10. P.W. Nos. 1, 2, 3 and 4 were examined to prove that Babu Shiva in fact did not work for 52 days. The evidence of P.W. No. 1 Raghunath Sapakal is neither here nor there and does not advance a case of the prosecution. In examination-in-chief itself he stated that he did not know Babu Shiva although he stated that he did receive his wages from accused No. 1 and that accused No. 2. noted his attendance. 11. P.W. No. 2 Sitaram Vichare is the sole witness on whose evidence, the prosecution case rests. Apart from this reliance was also placed by the prosecution on the evidence of Finger Print Expert P.W. No. 4. noted his attendance. 11. P.W. No. 2 Sitaram Vichare is the sole witness on whose evidence, the prosecution case rests. Apart from this reliance was also placed by the prosecution on the evidence of Finger Print Expert P.W. No. 4. Chandrakant Parashuram and P.W. No. 6 Police Inspector Nerlekar who took the specimen thumb impressions making a panchanama and forwarded the same to the Finger Print Bureau for report. Vichare firmly maintained in the examination-in chief that Babu Shiva had not come for work during the period mentioned in Exs. 18,19 and 20 and thus he could not have received the wages for 5 days, 25 days and 22 days as shown in these three exhibits. However, in the cross-examination on behalf of accused No. 1, he stated; “I had not gone to the place where Babu Shiva was working in that rainy season. This is my hearsay information. It is not true to say that Babu Shiva was working on the road during this monsoon”. He also could not say for many days Babu Shiva worked in the Summer on the road construction. This very statement knocks down his evidence and it seems that the witness was giving evidence from impression and had no personal knowledge. The Zilla Parishad had undertaken the construction work of nine roads, but the construction work was not proceeding on all the reads at the same time. But in so far as the construction on the present road with which I am concerned, Ex. 18, shows that 121 workers were working at the time when the payment of Rs. 15/- was paid to Babu Shiva for five days at the rate of Rs. 3/- per day. As per Ex. 19.22 workers were engaged at the time when Babu Shiva was supposed to have worked for 25 days and received Rs. 75/- as wages at the rate of Rs. 3/- per day. As per Ex. 20, there were 21 workers during the period when Babu Shiva was supposed to have worked for 22 days and received Rs. 66/- at the rate of Rs. 3/- per day. 75/- as wages at the rate of Rs. 3/- per day. As per Ex. 20, there were 21 workers during the period when Babu Shiva was supposed to have worked for 22 days and received Rs. 66/- at the rate of Rs. 3/- per day. Though 121 workers is a large strength as compared to the number of workers engaged as per Exhibits 19 and 20 and it was not unlikely for worker to have know whether another co-worker had worked or not; but having regard to the statement of the witness that he had not gone to the place where Babu Shiva was working, indicated that his evidence is not firm. It is unfortunate for the prosecution that Babu Shiva died before he could enter the witness box and solve this mystery. In these circumstances, I do not think that it is safe to rely upon the evidence of witness Vichare and, therefore, his evidence ought to be discarded in so far as he stated that Babu Shiva did not work. 12. Evidence of P.W. No. 3 Sivaram Aphisthe is not worthy of reliance as he merely stated that Babu Shiva was working with him in rainy season of 1972 for one-and-half months and received Rs. 70/- as wages in all. He had not obtained any document from Babu Shiva in respect of this payment. This evidence is unsatisfactory and, therefore, it is rejected. 13. The prosecution has failed to establish beyond reasonable doubt that Babu Shiva did not in fact work at the site between the relevant period for 52 days. If this fundamental point is not established, the prosecution cannot succeed in bringing home the charges brought against both the accused. I, therefore, do not consider necessary to refer to the evidence of the Finger Print Export (P.W. 4). 14. In the circumstances, the accused are entitled to the benefit of doubt. I, therefore, allow the appeal and set aside the conviction and sentence of both the accused. Their respective bail bonds are directed to be can called. -----