JUDGMENT - V.S. KOTWAL, J.:---On the basis of credible report that stolen articles are stored in the house of original accused No. 1 at village Hupari in Kolhapur District. Police Head Constable Kurhade raided the house in the presence of panchas when accused Nos. 1 to 3 who are near relations were present. In search 61 sugar bags were found with a particular sea[ marks in ink indicating that those were filled in at Bhogavati Sugar factory while some marks were indicated that those were loaded in the railway wagon. Those came to be attached under panchanama. Investigation started and it was revealed that these sugar bags were clandestinely removed by breaking open railway wagon at Kolhapur on the night intervening 13th and 14th of March, 1976. It also transpired that some other accused were involved who included original accused Nos. 4, 5 and 7. It is alleged by the prosecution that these three persons hired a truck and went to railway yard at Kolhapur on the night of 13th March, broke open the wagon and removed those 61 bags of sugar and loaded those in the truck driven by P.W. 11 Babasaheb Ghori and came to Hupari and unloaded the bags in the house of accused No. 1 who is the mother of accused Nos. 2 and 7. On that basis all the accused came to be arrested from time to time and they ultimately faced charges under sections 379, 411, 41 4 read with section 34 of the Indian Penal Code in Criminal Case No. 5947 of 1976 in the Court of the learned Judicial Magistrate, First Class, Kolhapur. 2. All of them pleaded not guilty. The learned Magistrate on the basis of the prosecution evidence gave benefit of doubt to all the accused except accused Nos. 4, 5 and 7 and acquitted them. These there accused however were convicted. We are concerned in this proceeding with accused Nos. 4, and 5 only who were convicted under sections 379 and 461 read with section 34 of the Indian Penal Code and who were sentenced to suffer R.I. for two years and a fine of Rs. 1000/- each in default to suffer further R.I. for four months while accused No. 7 was imposed sentence of imprisonment of three months and fine of Rs. 500. 3. 1000/- each in default to suffer further R.I. for four months while accused No. 7 was imposed sentence of imprisonment of three months and fine of Rs. 500. 3. All the three accused preferred Criminal Appeal No. 85 of 1982 in the Sessions Court at Kolhapur, but met with no success when the appeal was dismissed in its entirety by the learned Additional Sessions Judge on July 31, 1984. 4. Original accused No. 4 has preferred Criminal Revision Application No. 487 of 1984 while original accused No. 5 has filed Criminal Revision Application No. 493 of 1984 in this Court both of which are being disposed of by common judgment. 5. Shri Madbhavi the learned Counsel who has been appointed to represent these two petitioners, mainly contended that the case rests entirely on the sole testimony of P.W. 11 Babasaheb Ghori and according to him he is nothing but a sort of accomplice and there is no corroboration. He has ,also pointed out other infirmities. Shri P.M. Vyas, the learned Public ,Prosecutor for the State, has however supported the conviction. 6. It is true that there are obvious limitations when revisional jurisdiction is being invoked and the re-assessment of the evidence is normally not permissible. However, there is much substance in the contention of Shri Madbhavi that several features are missed by the courts below and their assessment of the evidence is vulnerable. He has, therefore, referred to the relevant portion of the evidence and his criticism in that behalf appears to be justified. This has necessitated interference even in the limited jurisdiction that is available in this field. 7. I have already indicated the prosecution case and much depends on the credibility of the evidence of P.W. 11 Babasaheb Ghori as infact that is the only evidence against these two petitioners. According to the witness he is a driver of a truck. At the relevant time at about 10.00 P.M. on the 13th of March, 1976 he was at Kolhapur and was about to visit a restaurant for dinner. At that time the petitioners approached him and asked him to go with them for transport of bags for consideration of Rs. 150/-. Reluctantly he agreed. According to him, these two petitioners and original accused No. 7 sat in the truck and took him towards the railway yard at Kolhapur. The railway crossing gate was close. At that time the petitioners approached him and asked him to go with them for transport of bags for consideration of Rs. 150/-. Reluctantly he agreed. According to him, these two petitioners and original accused No. 7 sat in the truck and took him towards the railway yard at Kolhapur. The railway crossing gate was close. It was opened by the gateman at the instance of these two petitioners. Thereafter they took the truck close to the yard where there were stationary railway wagons. These petitioners and others who joined them there managed to open the door plank of the wagon and lodged sugar bags from the said wagon in his truck. He brought them to Hupari where the articles were unloaded at the house of accused No. 1. Accused No. 5 then gave him Rs. 200/- at the transport charges. He then left the place and did not know what happened thereafter. 8. Both the courts below felt that apparently there is no reason to discard the evidence of this witness. However, there are certain infirmities which unfortunately were not even considered by the courts below. His claim that he accidentally met the petitioners at about 10.00 P.M. is rather hard to believe. His further claim that he did not know what were the contents in the bags is also difficult to believe because he has blurted out in his evidence that 61 sugar bags ere loaded in his truck. He then claims that the petitioners and other accused broke open the wagon though ultimately he gave a round and stated that he was standing outside and it was his cleaner who told him about the same. He has, therefore, no personal knowledge at least in that behalf. The said cleaner has not been examined though he was interrogated by the police. His entire evidence does justify the submission of Shri Madbhavi that he cannot be styled as independent witness as has been found by the Courts below and his active involvement with the knowledge of the crime can well be inferred and if so then either he is an accomplice or at least such kind of witness whose evidence requires material corroboration. This submission is quite valid. This submission is quite valid. However, there is one more serious infirmity inasmuch as even though the alleged incident took place on 13th of March 1976 and Police Jamadar Kurhade took over the investigation and thereafter P.S.I. Jagtap carried the further investigation, still the statement of this witness as recorded for the first time on 3rd of April, 1976. Police Jamadar Kurhade has been examined but he does not say that he tried to contact this witness. He immediately handed over the investigation to P.S.I. Jagtap who was incharge of that police station. The said P.S.I. Jagtap has not been examined. The investigation was taken by P.S.I. Mervade P.W. 14 on 26th Match, 1976 and his evidence as well as the admission of witness Ghori make it clear that Ghori's statement was recorded for the first time on 3rd of April, 1976. It is not even inferentially suggested that this witness was not available or his involvement was not known to the police because there is the evidence of yet another witness P.W. 3 Bhandari who has seen the process of unloading at the house of accused No. 1 and therefore, the police were known that the truck at Kolhapur had transported the goods. Under the circumstances, the delay in recording the statement of a witness who cannot be styled as independent person and who appears to be an active participant in the alleged crime in question assumes much importance. 9. This witness has also some hesitancy in the matter of identification. As regards accused No. 7 he made it clear that he could not identify. As regards accused No. 4 he was very luke-warm and stated that he does not remember whether he could identify accused No. 4. He does not refer to the identification of accused No. 5 at all. He has further admitted that his statement was recorded only after the accused were shown to him. In this behalf it is very significant to note that though identification parade was held, both the courts below have excluded the same and have not relied on the same. This position is made clear in the two judgments of the courts below and in fact the learned Sessions Judge has made it clear that the evidence of identification parade has not taken into consideration at all as it contains several infirmities. This position is made clear in the two judgments of the courts below and in fact the learned Sessions Judge has made it clear that the evidence of identification parade has not taken into consideration at all as it contains several infirmities. Since the prosecution on this forum also did not rely on the same piece of evidence it need not detain us. The witness does not claim that he was knowing these two petitioners previously. Admittedly it was dark. He also makes out a case that on the way they allowed two R.P.F. people to travel in the truck which itself sounds improbable when they were proceeding to commit the alleged crime. None of these two constables were examined. There is also a material discrepancy vis-a-vis the identity of the truck. 10. The prosecution examined one Bhandari P.W. 3 who was at the relevant time staying as the tenant in the house of accused No. 1 who is the mother of accused No. 7. According to him, while he was sleeping out side he noticed the arrival of the vehicle and he was awakened and he saw accused No. 7 near the truck when certain bags were un-loaded and stored in the house of the accused No. 1 and thereafter the truck went away This witness claims to have merely seen the incident of unloading which must have taken a considerable time. According to the driver even petitioner Nos. 4 and 5 went upto the house or accused No. 1 whereas this witness Bhandari does not even inferentially refer to the presence of accused Nos. 4 and 5 and makes it clear that he only saw accused No. 7 near the truck. He did not identify the truck driver. However, what is important is that he claims to have clearly seen the board of the Transport Company on the said truck which was of Vora Transport Company whereas it has not transpired during the investigation that the truck belong to Vijaydurg Transport Company and had nothing to do with Vora Transport Company. Inspite of the darkness the witness affirms that he properly saw the full name plate on the board of the truck and he made no mistake. Inspite of the darkness the witness affirms that he properly saw the full name plate on the board of the truck and he made no mistake. It is also significant to note that he noted down the number of the truck which he gave to the police on the very next day and significantly that number also did not tally with the number of the truck in question. It is not even faintly suggested to Babasaheb Ghori that the name board and the number plate were changed or that the truck was also changed. Consequently this material discrepancy on both the items has not been explained by the prosecution and it adds to the infirmity when read with other several features. As stated, he has not referred to the presence of both the petitioners. 11. The prosecution also sought to rely on the evidence of the gateman Kalu Kamble P.W. 5 to corroborate the other evidence. Unfortunately he did not support the prosecution, and he was disowned and cross examined by the prosecution. Firstly he stated that no truck came at that time nor any one had asked him to open the gate. He further admitted that one truck had come. He however does assert that the gate was open and he does not know where the truck had gone. He did not even inferentially refer to the presence of any of the petitioners nor of P.W. 11 Ghori. Even in the cross-examination nothing substantial to connect these two petitioners have been brought out from his police statement though there is a vague reference that accused No. 5 contacted' him. The witness has denied the same. It is true that even from the evidence of such a witness reliance can be extracted from some portion provided it appears probable and in my opinion it would be risky to accept this evidence under the circumstances. 12. The learned Additional Sessions Judge was of the opinion that P.W. 11 Ghori is corroborated by P.W. 3 Bhandari and also by the gateman P.W. 5 Kamble. I am afraid that the corroboration stops mid-way and does not connect the petitioners. 12. The learned Additional Sessions Judge was of the opinion that P.W. 11 Ghori is corroborated by P.W. 3 Bhandari and also by the gateman P.W. 5 Kamble. I am afraid that the corroboration stops mid-way and does not connect the petitioners. Once it is held that in all probability P.W. 11 Ghori has a character of an accomplice then the nature of corroboration also changes and it would require not only as a corroboration to the general story of the prosecution but to some extent, may be inferentially or circumstantially to connect the involvement of the accused and that is precisely missing in the instant case. As stated, even otherwise the evidence of P.W. 11 Ghori is far from satisfactory and there is enormous delay in recording the statement. The evidence of P.W. 3 Bhandari is rather difficult to be accepted when he makes a tall claim that at that time he could see everything. He made a blunder about the name plate as also the number plate which creates further difficulty in the way of the prosecution and he does not refer to both the petitioners though according to this witness Ghori both were present at that time also. 1 3. Under the circumstances, it would be hazardous to base the conviction of these two petitioners on this most unsatisfactory state of evidence. The benefit of which would obviously go to the petitioners. In view of this it is unnecessary to consider the other points such as the property was the stolen property and it was loaded in railway wagon as is apparent from the record of the railway office and those bags were attached from the house of accused No. 1 who however has been acquitted by the learned trial Magistrate. Since the petitioners succeed oil this short question the other aspects need not detain us. Consequently even in this limited field the conviction is unsustainable more so as these material aspects are completely ignored by both the courts below. The record reveals that both the petitioners continued to be in custody from July 1984 till this day. The situation cannot be improved except directing their release forthwith. 14. Rule in both the petitions absolute. 15. The order of conviction and sentence recorded by the learned trial Magistrate and affirmed by the learned Additional Sessions Judge, Kolhapur against both these petitioners (Original accused Nos. The situation cannot be improved except directing their release forthwith. 14. Rule in both the petitions absolute. 15. The order of conviction and sentence recorded by the learned trial Magistrate and affirmed by the learned Additional Sessions Judge, Kolhapur against both these petitioners (Original accused Nos. 4 and 5 respectively) is set aside and both these petitioners-accused are acquitted of all the charges levelled against them. 16. Fine, if paid, be refunded to them. Both the petitioners are directed to be released forthwith if not required for any other purpose. Rule made absolute. -----