Judgment

KRISHNA IYER, J.:- An old case of house-breaking, allegedly by five persons, resulted in the acquittal of the 3rd accused by the magistrate and on appeal the 5th accused s guilt also was held not proved. The 2nd accused has appealed against his concurrent conviction while accused Nos. 1 and 4 have resigned themselves to their sentences.

2. 40 bundles of copper wire kept in the godown of M/s. Lee & Muirhead (India) Pvt. Ltd. as Sewri in Bombay were admittedly burgled on Sunday, September 25, 1966, in the morning and removed in a lorry of driver Hassan. A4 had hired the lorry, taken a few hammals (head load carriers), loaded the vehicle with the copper wire, the godown watchman being absent, and on its way the lorry was stopped at the weigh bridge where the brokers for sale of the stolen property were also present. The story of the break-in is substantially established and the involvement of Al and A4 is proved. Two of those whose roles were important, according to the prosecution version, have got off in Court. The appellant pleads innocence on the hopeful circumstances of absence of direct evidence connecting him and on the inconclusive probativeness of the sole circumstance found against him of the recovery of the duplicate key of the godown discovered as a result of his statement to the police.

3. Mr. V. S. Desai, with pursuasive reasoning, argued that his client was suspected on irrelevant grounds and proof of guilt needed more than the hesitant testimony of possession of a duplicate key after the occurrence, an accessory after the fact, assuming the worst against his client, being no abettor under the Indian law. A few more facts will illumine the lines of argument, the focus being turned only on accused No. 2.

4. A2 was found in possession of Rs. 4,800/-, all in hundred rupee notes, and a bunch of keys identified as duplicates of the godown keys. Notwithstanding some defects, the trial Court concluded:

"I therefore accept his evidence and find that the bunch of keys in the ring (Ex. D) and a sum of Rs. 4,800/- were recovered from the possession of accused 2 from his room. Complainant Noronha swears that they were the duplicate keys of the Moon Mill Godown.

Regarding the large amount - suspiciously large for a small employee drawing a monthly salary of around Rs. 300/-, the trial Court took the benignant view that "by no stretch of imagination can it be said that the amount of Rs. 4,800/- recovered from accused 2, as well as amount of Rs. 1,500/- recovered from accused 5, be said to be the sale proceeds of the stolen property or of any part thereof. The recovery of Rs. 4,800/- from accused 2 cannot therefore incriminate him." Was it stretching the inference too far? But the High Court has not disturbed this view and we are not disposed to reconsider this two-tier holding.-

5. However, the keys tell a different tale. The learned Judge, in affirmance of the lower Court has observed:

"I have, therefore, no doubt that these keys which were found in possession of accused No. 2 were the keys which were used for the purpose of unlocking the lock and then stealing the copper wire. The offence was committed on 25-9-1966, the keys were found in possession of accused No. 2 on 28-9-1966.

6. We may advert to one more fact - the presence of 2nd accused at the weigh bridge shortly after the theft. The Magistrate records that:

"Witness Manrupchand Chimmaji states that when accused 3 took him to the weigh bridge on that morning, he saw a stationary lorry laden with coper wire bundles and accused Nos. 1 and 4, near the lorry and that accused 3 introduced accused 2 to him as the owner of the goods. I accept this statement of the witness. It is true that there is no evidence to show that accused 2 was present either at the loading of the goods from the Moon Mill godown or at the unloading of the goods at M/s. Ashok Metals. But the evidence of Manrupchand clearly shows that accused 2 was present when the lorry laden with the stolen goods wa