JUDGMENT :

Sanjay K. Agrawal, J.

1. The appellant herein has preferred this criminal appeal under Section 374(2) of the CrPC calling in question legality, validity and correctness of the impugned judgment of conviction recorded and sentence awarded by the learned Additional Sessions Judge by which the appellant has been convicted for offences under Sections 450, 302 & 397 of the IPC and sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs.5,000/-, in default, to further undergo rigorous imprisonment for two months; imprisonment for life and pay fine of Rs.5,000/-, in default, to further undergo rigorous imprisonment for two months; and rigorous imprisonment for seven years, respectively.

2. Case of the prosecution, in brief, is that in the intervening night of 3rd & 4th September, 2011 at Village Boirdih, Indira Awas, Bhatapara, the appellant herein trespassed the house of his bua (father’s sister) Budhwantin Bai and caused her death and thereafter, robbed four gold ear rings and four silver bangles. The matter was reported on 4-9-2011 at 10.30 a.m. by Jailal Khare, S/o Rikhiram, on the basis of which an unnumbered nalishi was registered vide Ex.P-4 and unnumbered morgue intimation was also registered at the instance of Jailal Khare vide Ex.P-2. Thereafter, inquest was conducted vide Ex.P-12 in which both the ears of deceased Budhwantin Bai (dead) were found cut and blood was oozing out of it and injury near ear & mouth was also found, and ornaments were also found looted. Postmortem was advised to be conducted and dead body was sent for postmortem examination which was conducted by Dr. Anil Mahakalkar (PW-12). Bloodstained ladies muffler, bloodstained petticoat, bloodstained blade, bloodstained match stick and one kathri – bundle of clothes used in villages have been seized from the spot and exhibited as Ex.P-14 and sent for forensic examination. Thereafter, on 5-9- 2011, the accused was taken into custody and his memorandum statement was recorded vide Ex.P-13 pursuant to which gold ring and silver bangles were recovered vide Ex.P-14 from the place indicated by the accused in presence of two witnesses Mahesh Yadav (PW-6) & Sarju Prasad Lahre (PW-13) and same were identified by Smt. Keshar Bai (PW-1) and Ashok Khare (PW-5). Recovered articles were subjected to measurement by Champalal Soni (PW-9) and identification parade was conducted by the Executive Magistrate. Recovered articles were also subjected to forensic examination and the FSL report is Ex.P-24.

3. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused / appellant was charge-sheeted for offences under Sections 450, 302 & 397 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the 1st Additional Sessions Judge, Rajnandgaon received the case on transfer for hearing and disposal in accordance with law.

4. The accused / appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as thirteen witnesses and brought on record 28 exhibits. The defence has examined none, but brought on record the statement of Jailal Khare Ex.D-1.

5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Sections 450, 302 & 397 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

6. Mr. Santosh Bharat, learned counsel appearing for the appellant, would submit that there is no evidence against the appellant for the aforesaid offences and memorandum & seizure witnesses namely, Mahesh Yadav (PW-6) & Sarju Prasad Lahre (PW-13), both, have been declared hostile and they have not supported the case of the prosecution, therefore, merely on the basis of recovery pursuant to the disclosure statement