( 1 ) THE appellant-original accused has questioned the judgment and order of conviction dated 13/06/1993 passed by the learned Additional sessions Judge at Valsad in Sessions Case No. 30 of 1992 by filing this appeal through jail. The accused is found guilty for the offences punishable under Secs. 395 and 397 of the Indian Penal Code and he is convicted and sentenced to undergo rigorous Imprisonment for five years and to pay a fine of Rs. 300. 00 and in default of payment of fine, to undergo further Rigorous Imprisonment for three months for the offence under Sec. 395 of the Indian Penal Code and he is also convicted and sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs. 200. 00 and in default of payment of fine, to undergo further rigorous Imprisonment for two months for the offence under Sec. 397 of the Indian penal Code, by the trial Court.

( 2 ) THE accused has filed this appeal from the jail since he has not been able to engage services of a lawyer of his own. This Court has given him services of a lawyer under Legal Aid Scheme and learned Advocate Mr. Kirit R. Raval is appointed for the appellant-accused who has contended that the impugned judgment and order of conviction and sentence are erroneous and illegal and accused is entitled to acquittal. Learned A. P. P. Mr. S. P. Dave has countenanced the said submission.

( 3 ) WITH a view to appreciating the merits of this appeal, firstly factual backgrounds giving rise to the present appeal, may be narrated.

( 4 ) THE prosecution case is that the accused along with some other accused persons who are absconding and some of them who are dead, have committed the offences punishable under Secs. 395 and 397 of the Indian Penal Code. Along with the accused, there were more than five persons at the time of incident which occurred in the house of the complainant one Prabhakar Gajand at about 1-30 early in the morning on 11-4-1991. The complainant was residing in his house at village Kalath sarigam in Valsad District along with his family members at the relevant lime.

( 5 ) THE complainant and his family members were fast asleep before the incident occurred. The accused and other persons who were more than five in number entered the house of the complainant with a criminal intention. Firstly, they went in the room of sons of the complainant Sandesh and Pankaj. The prosecution witness sandesh was assaulted. There was a noise and shouts, as a result of which the complainant woke up who heard filthy abuses uttered by one of the accused persons in Marathi language. Apprehending threats to his life the complainant also raised the shout and tried to call one neighbour Gajubhai. The complainant shouted that thieves had come. In the meantime, the accused persons broke open the room of the complainant with big stone and four persons entered into his room. Three persons were armed with sticks, one person was armed with sickle. The complainant was pushed back on the couch and one of the assailants inflicted one stick blow on the left side portion of the head. A tall man out of said assailants also told the complainant to give the money. Some of the assailants had also snatched away golden ornaments like chain, ear-rings, bangles from the person of daughter of complainant manikben. One of the assailants tried to inflict stick blow upon the complainant but the daughter of the complainant, Manikben intervened in order to save him from the stick blow and hence daughter Manikben received stick blow on her head. The wife of the complainant was also forced to give four golden bangles. The assailants had also taken out cash amount of Rs. 5,000. 00 from the cup-board. Thereafter, the assailants had fled away. The accused persons had taken away golden ornaments, cash and other items worth Rs. 62,975. 00.

( 6 ) THE complainant lodged the complaint with regard to the said incident before umargam Police Station. The offence was registered and comp