HARI DEORAM MALI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present appeal received through Jail, is directed against the conviction and sentence of the appellant (original accused No:3) under section 398 of the Indian Penal Code to suffer RI for seven years and to pay a fine of Rs. 5000/- in default, to suffer further RI for one year and six months, passed by the learned 3rd Additional Sessions Judge, Beed, vide his judgment and order dated 29th June, 1996 in Sessions Case No: 38/96.

(2.) IN nutshell, the prosecution case is that at about 4.00 a. m. on 5.9. 1994 there was a dacoity in several houses of village Georai in Beed district. The FIR was lodged in the early hours of 6.9. 1994 by one Narayan Deorao Yeldale R/o Chintamani Griha Nirman Sanstha, Georai Dist. Beed. Kashinath Kshirsagar and Sanjay Kulkarni are his immediate neighbours. They are also the victims of dacoity. It has been stated in the FIR that under the force of knives and sticks, the alleged dacoits snatched away from them and their respective wives not only cash but also ornaments on their person. The ornaments consisting of golden "zumber" flowers, nosering Mangalsootra with beads. There was also theft of radio of Philips company and one minitorch. It was further stated that the dacoits had not put on the clothes except the underwear whereas the clothes were tied around their waists. Some of them had covered their faces with scarfs and they were speaking in Hindi.

(3.) MR. Ajit Gholap, the learned counsel appointed as amicus curiae to defend the appellant, urged that the conviction of the appellant is ex-facie erroneous in law. It has been submitted that evidence on which the learned trial Judge has kept reliance is, in fact, no legal evidence on the basis of which conviction of the appellant could be sustained either under section 395 or u/s 398 IPC. In this context, it is submitted that neither memorandum Panchnama Exh. 38 nor alleged recovery of article under seizure Panchnama Exh. 39 are reliable documents. It has been submitted and, as evident from these original documents, that the same are not either signed or thumb impressions of the appellant were obtained. Therefore, the so called statements of the appellant on the basis of which recovery is relied on by the prosecution, is totally unbelievable. More so when none of Panchas to the said circumstance corroborate the prosecution version.