2. This appeal takes exception to the Judgment and order passed by the III Ad-hoc Additional Sessions Judge, Thane dated June 27, 2003 in Sessions Case No.186 of 2002. The appellant along with one Shivanand Ambadas Pujari was tried for offence punishable under section 460 r/w. 34 of LP. Code. The trial Court after adverting to the evidence on record has found the appellant guilty of offence under section 459 of LP. Code and ordered to undergo sentence of Rigorous Imprisonment for five years and to pay fine of Rs.300/- i.d. to suffer S.L for one month.

3. The counsel for the appellant at the hearing of this appeal confined his argument to the nature of offence and quantum of sentence.

4. Counsel for the appellant fairly submits that the finding regarding the complicity of the Appellant in the commission of offence as recorded by the trial Court will have to be accepted. Even so, contends the learned counsel, having regard to the injury caused to the victim at the relevant time by the appellant as has been proved, the offence cannot be one under section 460 of I.P. Code but a lesser offence under section 458 of I.P. Code and in that case th