TMI Blog1997 (2) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... nt along with five others committed dacoity in the agricultural field of the complainant Digambar Bandal, PW 1 situated within the limits of village Karade, and during the course of dacoity, he and his associates are alleged to have looted valuables belonging to Sakhubai Bandal, PW 5 and Saraswatibai, the mother and the wife of the informant respectively. It is also said that during the course of dacoity, the dacoits snatched both the earrings of Sakhubai and 3 golden beads and 2 golden vatis of the Mangalsutra of Saraswatibai and caused injuries to the complainant, Sakhubai and Chimaji (father of the complainant). The dacoits are alleged to have been recognised in torch light. 3. The FIR of the incident was lodged by Digambar Bandal, PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) Identification by witnesses in the Court; and (b) recovery of golden ornaments on his pointing out. The trial Judge rejected the evidence of identification on the ground that identification for the first time in Court could not be relied upon. He, however, convicted the appellant on both the charges i.e. 395 and 397, Indian Penal Code. On the basis of recovery of three golden beads and two golden vatis on his pointing out. 7. We have heard Ms. Anita Agarwal for the appellant and Mr. M. P. Galeira, Additional Public Prosecutor, for the State of Maharashtra-respondent. The short point in this appeal is firstly whether the evidence of recovery of golden ornaments on the pointing out of the appellant inspires confidence and secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Since a perusal of sections 390 and 395, Indian Penal Code shows that dacoity is an aggravated form of theft, the presumption contained in this provision would also be applicable to the offence of dacoity. The said provision stipulates that in a case where recovery is made, soon after the theft, a presumption of theft can be raised. But, in the instant case, this presumption cannot be raised for even according to the prosecution, the dacoity took place on the night of 17th/18th March, 1983 and the recovery was made on 21-4-1983, i.e. after a period of nearly one month and 10 days. And one month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereof the appellant would undergo 6 months RI would be proper. 10. In the result, this appeal is partly allowed and partly dismissed. We acquit the appellant for offences under sections 395 and 397, Indian Penal Code and set aside his sentence of five years and seven years respectively on those counts. Instead we convict him under section 411, Indian Penal Code. For that offence, we reduce his sentence to the period already undergone by him and impose a fine of Rs. 3,000/- and six months RI in its default. The said fine should be deposited by him within a period of 3 months from today in the trial Court. In case the appellant does not pay the fine within 3 months from today, as directed by us, he shall undergo the sentence of 6 mont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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