1. - This criminal appeal preferred by appellant Balchand S/o Dalu, by caste Meghwal, resident of Ladpura, Police Station Rawatbhata, District Chittorgarh is directed against the judgment and sentence dated 23.04.2008 passed by the Additional District and Sessions Judge No. 2, Chittorgarh in Sessions Case No. 42/2007.

2. The brief facts of the case are that on 20.04.2007 complainant Govardhan submitted a written report at Police Station Rawatbhata to the effect that his grandmother Kanwari Bai, who was living with him at village Ladpura, used to keep all her ornaments with her and she used to go away from home without telling anybody. In the evening, his grandmother left the home and stayed at the house of Prabhu in the night. When he came to Ladpura in the evening, he came to know that dead body of his grandmother is lying on the way in front of the house of Prabhu Meghwal. On making enquiry, Prabhu told that during the day Balchand inflicted injury to Kanwari Bai, due to which she died. On inspecting the dead body, it was found that there were injuries on head and back and all the ornaments that she was wearing were missing. On the aforesaid report, FIR No. 70/2007 under Section 302, 394 IPC was registered and investigation was commenced by police.

3. During the investigation, statements of witnesses were recorded, autopsy was conducted on the corpse of the deceased and the accused appellant was arrested and in pursuance of the information recorded under Section 27 of the Indian Evidence Act, blood-stained weapon of offence and ornaments were recovered. After usual investigation, chargesheet was presented in the Court of Judicial Magistrate, 1st Class, Rawatbhata from where the case was committed to the Court of Additional District & Sessions Judge No.2, Chittorgarh Camp Begun.

4. Accused appellant Balchand was charged with offences under Sections 302 and 394 of the IPC. In support of the alleged charge, prosecution examined 24 witnesses. The incriminating evidence available on record was put to the accused for his explanation under Section 313 Cr.P.C. and accused produced no evidence in his defence.

5. Learned trial Court after hearing both the parties, convicted the accused appellant under Sections 302 and 394 of IPC and recorded the order of sentence as under:

(i) Under Section 302 IPC - Life imprisonment and fine Rs. 1,000/-, in default of payment of fine to further undergo one month's imprisonment.

(ii) Under Section 394 IPC - 10 years imprisonment and fine Rs. 1,000/-, in default of payment of fine to further undergo one month's imprisonment.

6. In reaching the conclusion as aforesaid, the trial Court relied on the evidence of PW8 Prabhulal, who stated in his statement recorded during trial that accused appellant brought the body of deceased Kanwari Bai in front of his house and after putting it in front of his house ran away out of fear. Further, the trial Court held that the statement of PW8 Prabhulal had been corroborated by PW9 Umkar and PW11 Govardhan.

7. While relying on the evidence of recovery of ornaments made in pursuance of the information recorded under Section 27 of the Indian Evidence Act, the trial Court held the appellant accused guilty under Section 394 of the IPC.

8. The counsel for the appellant assailed the judgment of the trial Court and contended that the trial Court in Para No.22 of the judgment held that the statement of eye witness PW8 Parbulal was corroborated by PW9 Umkar and PW11 Gordhan. Whereas First Information Report Ex.P/14 itself contains this fact that Prabhulal Meghwal informed about the fact of incident to Umkarlal s/o Fatehji Meghwal.

9. Another contention of the learned counsel for the appellant is that the learned trial court convicted the accused appellant under Section 394 IPC on the basis of recovery made by the Investigating Officer in pursuance of the information furnished under Section 27 of the Indian Evidence Act vide recovery memo Ex.P.20. The motbirs of the above recover