Judgment:
Ashok Desai, J.
1. This appeal is directed against the finding of conviction for offences under Sections 302, 394, 397 and 457 of IPC r/w 34 of IPC.
2. The prosecution case was disclosed by P.W. 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 Deorarri 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 Dnyanshwar was lying dead with numerous injuries. Thereafter, she noticed that three bags containing various ornaments namely two mangalsutras, two black pots, watis, jodavis etc. 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. P.W. 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 affected on a memorandum vide Exh. 39. P.W. 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. Mr. Karwande learned counsel for the accused made a submission that the material as placed is neither sufficient nor cogent to hold the accused guilty for offences punishable under Sections 302, 394, 397 and 457 r/w 34 of IPC. The recovery could not connect the accused with the murder of Dnyaneshwar. We find sufficient force in the submission. Mr. Salvi learned counsel for the prosecution could not successfully repel the submissions. We also find that mere recovery could not be the basis for the offence charged. The learned Sessions Judge according to us, has committed patent illegality.
4. In view of the decision reported in Sheo Nath v. The State of U.P. : 1970CriLJ601 , the appellant could be held guilty under Section 411 of IPC since found in possession of a stolen property. The conviction as recorded therefore, cannot be sustained.
5. 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.
6. It is reported that the accused since the date of arrest is in jail, i.e. for a period of about seven years. Since the maximum sentence is only for 3 years under Section 411 of IPC, he be released forthwith unless required in some other case. The fine as imposed by the learned Sessions Judge if paid be refunded to the accused.