1. This appeal is directed against the Judgment and Order dated 19/12/1997 delivered by the Additional Sessions Judge, Palghar convicting the appellant, who was the accused No. 2 in Sessions Case No.271 of 1996 (Original Sessions Case No.407 of 1991) of an offence punishable under Section 452 of the Indian Penal Code (In short 'IPC') and sentencing him to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.500/-, in default to suffer Simple Imprisonment for six months. There was one more accused: viz: Ramesh Pathak (accused No.1) in the said case, but the learned Additional Sessions Judge acquitted him. The appellant and the said accused No.1 were also charged of having committed an offence punishable under Section 395 of the IPC, but were acquitted of the said charge.

2. I have heard Mr. S. V. Marwadi the learned counsel for the appellant. I have heard Mrs. A. A. Mane, the learned Additional Public Prosecutor for the State. With the assistance of the learned counsel, I have gone through the entire evidence adduced during the trial and I have gone through the impugned Judgment.

3. The prosecution case, as put forth before the trial Court was to the effect that the First Informant Smt.Sheela was running a shop in the name and style of, 'Prabha General Stores'. One Tanaji Patil and one Bhaskar Sutar (PW5) were working in the said shop as servants. On 28/09/1990, when Sheela and her associate Avinash (PW2) were not in the shop, the appellant and the accused No.1 Ramesh came along with 10 to 11 persons, drove Tanaji and Bhaskar, who were in the shop, out, removed certain goods from the shop and took forcible possession of the shop by locking the same from outside. When Tanaji reported the matter to Sheela, she lodged a Report with the police on the basis of which a case in respect of offences punishable under Section 395 of the IPC and Section 452 of the IPC came to be recorded.

4. The prosecution examined six witnesses during the trial. The first witness is Sheela herself. The second witness is her associate Avinash. The third witness Prabhakar and the fourth witness Ajij are panchas in respect of the spot panchanama. None of them supported the case of the prosecution. Even otherwise, their evidence is not very relevant in the context of the facts of the prosecution case and the admitted position. The fifth witness is Bhaskar who, as aforesaid, was at the material time working in the shop of Sheela as a servant. He is the only person, who witnessed the actual incident and who speaks about it. The sixth witness is Dinkar Bagal, Sub-Inspector of Police, who was attached to Boisar Police Station, at the material time, and who has investigated into the alleged offences.

5. It is clear that Bhaskar (PW5) is the only witness in respect of the alleged incident and, therefore, his evidence assumes importance. The other person who was said to be present in the shop Tanaji could not be examined during trial, because he had passed away.

6. Bhaskar states that on the particular day, the appellant and others came to the shop and directed Bhaskar and Tanaji, who were present there, to leave the shop. Though Bhaskar and Tanaji were not ready to go out of the shop, the appellant drove them out of the shop. The appellant and the persons, who had come with him, removed articles from the shop and then locked the door of the shop from outside. Bhaskar then went to Sheela and reported to her about the incident.

7. It is not necessary to discuss the evidence of the prosecution witnesses, in as much as, the matter can be decided on the basis of a more fundamental and legal aspect. That aspect is 'whether by taking the case of the prosecution as it is and to the extent believed by the trial Court it discloses commission of an offence punishable under Section 452 of the IPC' In other words, whether acts of the appellant, as were held proved by the trial Court, do amount to an offence punishable under Section 452 of the IPC, is the prim