MRS.SWAPNA JOSHI, J. - (1.)The instant Appeal takes exception to the judgment and order dated 16.02.2004 delivered by the learned Additional Sessions Judge, Kelapur in Sessions Trial No.196/2002 acquitting the respondents (hereinafter referred to as "the accused") of the offence punishable under Section 395 and 397 of the Indian Penal Code.
(2.)The prosecution case can be summarized as under :
Shyam Belorkar (PW5) was residing along with his wife Shobha @ Shital, nephew-Akash, elder brother Arun and his wife Prabha, at Babasaheb Deshmukh Society at Ghatanji. During the intervening night of 17 and 18th August,1999 between 2.00 and 2.30 am, Shyam (PW5) heard noise of knocking the back side door of his house. Shyam as well as his wife Shoba, both woke up from their sleep. They came from their bed room and put on the inside and outside lamps. They both went to the door which was knocked. They noticed that four persons being Sardarji, had broke open the door and entered inside the house, while two Sardarjis were guarding outside the house of PW5. Out of those 4 sardarjis, one of them assaulted Shyam (PW 5) by means of an iron bar on his head. He asked PW5 to come inside. Those culprits then took Shyam (PW5) and Shobha (PW7) through the entire rooms and questioned them as to where the valuable property was kept. While threatening PW5 and PW7, the accused caused injuries to them. Those four accused removed the gold ornaments of PW7, namely, two patlyas, four bangles, a mangalsootra and a chain. They also removed the gold ring and gold bracelet from the hands of PW7. The accused removed two gold rings, two earrings from the person of PW7. One of the accused raised a knife to assault PW5. However PW7 caught hold of the said knife, due to which she sustained injury on her left palm. The accused asked PW5 and PW7 to sit in a room. Out of the four accused, two accused were standing near them and the other two accused went near the adjoining room. They tried to remove the articles kept in the almirah. As the almirah was locked, one of the accused demanded keys from PW5. The accused asked PW5 to unlock the almirah. However PW5 could not do the same. PW5 was then made to sit beside PW7. One of the accused broke open the lock of the iron box, which was kept in the house. He removed the pant piece and some clothes from the said box. Thereafter, all the four accused went outside the house. Four accused persons who were inside the house and the two accused who were guarding the scene, then fled away. Thereafter PW 5 and PW7 came outside from the broken door and called their neighbour, namely, Shridhar Bhaskarwar (PW1). PW1-Bhaskarwar who was already awoke, told PW5 that the door of his house was chained from outside, so he opened the door. As PW5 and PW7 had received injuries, PW1-Bhaskarwar brought Dr.Bhure to their house, who advised PW5 and PW7 to proceed to the hospital at Yavatmal. Accordingly PW5 and PW7 proceeded to the hospital at Yavatmal. PW1-Bhaskarwar then proceeded to the Police Station and lodged his complaint (Exh.43).

(3.)On 18.8.1999 Head constable Annaji Dhurve (PW 23) was attached to Ghatanji Police Station. He received a phone call from Shridhar Bhaskarwar (PW1) to the effect that some dacoits entered into the house of Shyam (PW 5) at about 3.30 am. Shyam and his wife Shobha, Dr.Bhure and Dr.Gupte proceeded to the Police Station, Ghatanji. As PW5 and PW7 were in injured condition, Head Constable Annaji (PW 23) referred them to medical hospital at Yavatmal. He communicated the incident of dacoity to PSOs of all Police Stations in Yavatmal District. He also informed the superior police officers about the incident. PW23-Annaji recorded the complaint of Bhaskarwar and on the basis of it, he registered the offence vide C.R. No. 83/1999 for offence punishable u/s. 395 and 397 of the Indian Penal Code. Police Inspector Anant Thorat (PW13) visited the place of incident and prepared the spot panchnama (Exh.109). He took charge of the articles lying on the spot under seizure Panchnama (Exh.47).