LALBAHADUR FEKU CHOUBE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant aggrieved by the Judgment and order dated 13-9-1982, passed by the IV Additional Sessions Judge. Thane in Sessions case No.140/1982, convicting and sentencing him to undergo a separate sentence of 7 years RI each under section 395 and 397 IPC; both sentences to run concurrently, has come up in appeal before us. Along with the appellant, five others namely Jaynath Setdev Yadev, Ramesh alias Chottu Ramniranjan, Ramdarash Shambhau Pande, Kansaraj Sharda Shukla and Vidyaprasad Dukharan Yadav were also prosecuted and tried, but, they have been acquitted vide the impugned judgment.

(2.) ACCORDING to the prosecution, between 1 a.m. to 1.15 a.m. on 29-7-1981, a dacoity took place at the house of the complainant Jivanlal Jotiram Dave PW 1 and Chaturbhuj Shah PW 2, situated in Prakash chawl, Bhoudh vada Road, Sopara Tulij, Taluka Vasai, District Thane. In the said decoity, some unknown persons are said to have participated. It is alleged that during the dacoity, Jivanlal Dave sustained injuries. It is further alleged that from the house of Jivanial Dave, about Rs.10,000/- in cash and ornaments of the value of Rs 28,000/- were looted. From the house of CHaturbhuj Shah, who is a tenant of Mr. Dave, gold and silver ornaments and cash to the tune of Rs.2000/- was looted. The total value of articles looted was Rs.10,000/-.

(3.) WE have heard Mr S.V.Kotwal for the appellant and Mr.Deshpande, for Additional Public projector for the Respondent, at considerable length. We have also perused the material exhibits, deposition of the prosecution witnesses the statement of the appellant recorded under section 313 Cr.P.C. and the impugned judgment. After giving our anxious consideration to the matter, we are of the view that the appeal deserves to be partly allowed. In our view, the learned trial Judge has erred in convicting the appellant under section 395 and 397 IPC and the appellant only deserves to be convicted under section 411 IPC.