RAGHU SHANKAR KALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the finding of conviction for offences under section 302, 457,394, 397 IPC r/w 34 IPC.

(2.) THE prosecution case was disclosed by PW 2 Smt. Sushila. According to her, at about 1 a. m. on 13-9-1991, due to dog barking she woke up and heard that one Deoram was calling her husband by referring 'aba Aba'. She came out and noticed that door of the house was opened. She went inside with Deoram and saw her husband Dnyaneshwar was lying dead with numerous injuries. THEreafter, she noticed that three bags containing various ornaments namely two mangalsutras, two black pots, watis, jodayis etc. were missing her statement was recorded by the police. Undisputedly, she has not seen either the act of the assault or the theft. THE prosecution has also not examined Deoram. PW 4 Avadaji Kale police Patil lodged an F. I. R. vide Exh 36 THE accused was arrested in some other case on 3-10-1991. Recovery of the stolen property was effected on a memorandum vide Exh.39.PW 5 Indore acted as a panch. Undisputedly, there is no recovery of any other incriminating article like weapon, blood-stains etc etc. THE prosecution rests its claim for the offence as charge only on the strength of recovery.

(3.) APPEAL is therefore partly allowed. The convictions and sentences as awarded by the learned Sessions Judge are hereby set aside. Instead, we convict the appellant-accused for an offence under section 411 IPC.