JUDGMENT The appeal is filed against judgment and order of Sessions Case No. 489/2011, which was pending in the Sessions Court, Aurangabad. The Trial Court has convicted and sentenced the appellant for the offence punishable under section 454 of Indian Penal Code. He is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 1000/-. Both the sides are heard. 2. In short, the facts leading to the institution of the appeal, can be stated as follows :- The first informant - Sudam Patekar is resident of village Turkabad, Tahsil Gangapur, District Aurangabad. On 15.7.2011 he left home for the place of work after putting lock on the front door of the house. His house has back door also and that door was closed by putting on the latch from inside. On that day, there was no other person present in his house. He returned to home after 3.00 p.m. from the place of work. When he reached the house, he heard some noise, which was coming from inside of the house. He pushed the back door to open it and when he pipped through the gap, one person, who was present inside of the house, gave blow of agricultural implement, Pass, on his head. The first informant realised that somebody had entered his house for committing theft and he shouted as “thief, thief”. He sustained bleeding injury to his head. 3. The thief, the accused tried to ran away by jumping over the compound wall of this house, but he fell from the wall in that attempt. After hearing the shouting of the complainant, some neighbours like Rangnath Mete rushed to the spot. They saw that the accused had fallen from the compound wall and they caught hold of the accused. Accused also sustained injuries due to this fall from wall. Both the accused and complainant were taken towards the office of Village Panchayat and call was given to police. 4. Rajput, Head Constable, who was attached to Waluj Police Station, went to the village of the informant. He noticed that the thief and the complainant were present near Panchayat Office. Somebody handed over gold ornaments, which were recovered from the possession of the accused and which were stolen by the accused from the house of first informant. Rajput took the complainant and the thief to the hospital. He noticed that the thief and the complainant were present near Panchayat Office. Somebody handed over gold ornaments, which were recovered from the possession of the accused and which were stolen by the accused from the house of first informant. Rajput took the complainant and the thief to the hospital. The report of Sudam Patekar was recorded and on its basis C.R. No. 77/2011 was registered for offences under sections 454, 380 and 459 of I.P.C. P.S.I. Nikumbh made investigation of the case. He prepared spot panchanama. After completion of investigation, chargesheet came to be filed for aforesaid offences. 5. The learned Sessions Judge framed charge for aforesaid offences. The accused pleaded not guilty. The accused took the defence of total denial. The Trial Court has believed the first informant and his neighbour Mete (PW2). The Trial Court has considered other circumstances like that accused was caught red handed by the villagers of the village of the first informant and that the accused sustained injuries in that incident. The circumstance that complainant sustained injury is considered as piece of corroborative evidence. The Trial Court has acquitted the appellant/accused of the other offences and he is convicted only for offence punishable under section 454 of I.P.C. 6. It was mainly submitted for the appellant that the accused has been behind bars since 15.7.2011 for the offence punishable under section 454 of I.P.C. and he was not convicted in the past for any offence and this circumstance is not considered by the Trial Court. It was submitted that opportunity to improve needs to be given to the accused, though some crimes were registered of similar nature against him. Argument was advanced on merits also. 7. The first informant - Sudam (P.W.1) has given evidence that when he returned from the place of work in the noon time, he heard the noise, which was coming from the backside of his house and so he went there and tried to see as to what was happening. He has given evidence that he found that the back door of the house was in open condition and when he tried to peep inside, the accused gave blow of Pass, agricultural implement, on his head. He has given evidence that he immediately shouted as "thief, thief” and then the accused ran towards compound wall of his house. He has given evidence that he found that the back door of the house was in open condition and when he tried to peep inside, the accused gave blow of Pass, agricultural implement, on his head. He has given evidence that he immediately shouted as "thief, thief” and then the accused ran towards compound wall of his house. The complainant has given evidence that he sustained bleeding injury on head due to blow given on his head. He identified the accused in the Court. He has given evidence on the recovery of gold ornaments from the possession of accused, but that part of evidence need not be considered as the accused is acquitted of the offence of commission of theft. 8. Mete (P.W.2), the neighbour of the complainant, has given evidence that after hearing shouting of the complainant, he rushed to the spot with others and he noticed that the accused was running towards the wall and when he attempted to jump over the wall, he fell down from the wall. He has given evidence that they caught hold of the accused and they took him to the office of Village Panchayat. He has given evidence that a call was given to police and police reached the office of Village Panchayat within half an hour. He has given evidence that the accused had also sustained injury, but that was due to fall from wall. 9. The Head Constable Rajput (P.W.5) has given evidence that when police station received information about the incident, he rushed to the village of the informant and he found that the complainant and accused were present near the Village Panchayat Office. He has given evidence that he took the complainant and the accused to Government Hospital in autorickshaw. He has given evidence that somebody handed over to him the gold ornaments like Dorle and nose ring. 10. The FIR at Exh. 11 is proved in the evidence of P.W.1. It is fully consistent with the version given in the Court by PW 1. The crime was registered at 00.35 hours on 16.7.2011. Though the crime was registered late, there is medical evidence to show that first informant - PW 1 had sustained injury to his head and he was receiving treatment in the hospital. There is the evidence of Dr. Jambure (P.W.4) to that effect. The crime was registered at 00.35 hours on 16.7.2011. Though the crime was registered late, there is medical evidence to show that first informant - PW 1 had sustained injury to his head and he was receiving treatment in the hospital. There is the evidence of Dr. Jambure (P.W.4) to that effect. The size of the injury was 3 c.m. x 0.5 c.m. The injury certificate is proved as Exh. 21. He has given evidence on the injury, which was found on the person of the accused. These injuries were fresh injuries. Medical evidence is consistent with the evidence given by the complainant and his witness. 11. The defence has admitted the spot panchanama, the panchanama of the house of the first informant. Hand sketch map of the house is prepared on this document at Exh. 12. This document is consistent with the oral evidence given by the complainant. 12. The evidence on the record shows that accused hails from other village and he was not known to the complainant and Mete. There was virtually no reason for the complainant or Mete to falsely implicate the accused in such a case. Further, there is corroboration of aforesaid circumstances to the versions given by complainant and Mete. The Trial Court has believed these witnesses. The Appellate Court is not expected to lightly interfere in such findings given by the Trial Court. In view of the aforesaid circumstances, this Court holds that prosecution has proved the offence of house breaking punishable under section 454 of I.P.C. 13. The Trial Court has refused to give benefit of provision of Probation of Offenders Act by holding that three other crimes were registered against the accused. However, it is not disputed that the accused was not convicted on the date of decision for any such offence. He was aged about 30 years at the relevant time. He is behind bars for 2 years 2 months. In view of these circumstances, this Court holds that it would be just and proper to partly allow the appeal to sentence the accused/appellant for the period already undergone. In the result, the following order. ORDER (I) The appeal is partly allowed. (II) The judgment and order of Sessions Judge, Aurangabad in Sessions Case No. 489/2011 is modified to reduce the sentence. The appellant/accused is sentenced to suffer the period already undergone, which is around 2 years and 2 months. In the result, the following order. ORDER (I) The appeal is partly allowed. (II) The judgment and order of Sessions Judge, Aurangabad in Sessions Case No. 489/2011 is modified to reduce the sentence. The appellant/accused is sentenced to suffer the period already undergone, which is around 2 years and 2 months. (III) If he is not required in any other case, he is to be released from Jail forthwith. (IV) Before releasing him from Jail, the Jail Authority is to ascertain that he is really not required in any other case. (V) The fees of the learned counsel appointed for appellant is quantified as Rs. 3500/- (Rupees three thousand five hundred). Appeal partly allowed.