JUDGMENT :

1. Heard Sri Mukesh Joshi, learned counsel for the Appellant; learned A.G.A. for the State and perused the record.

2. The present appeal is preferred against the judgment and order dated 12th September, 1984 passed by VIII Additional Sessions Judge, Etah in S.T. No.662 of 1983 (State Vs. Kailash Chandra), whereby the Appellant has been convicted and sentenced under Section 411 I.P.C. for three years rigorous imprisonment.

3. The prosecution case as per the first information report is to the effect that one Jagan Lal has lodged a first information report on 28th February, 1983 at 8.15 am with the allegation that Aunt (Chachi) of the informant namely Yasoda was living alone in her house and in the intervening night of 27th/28th February, 1983 when she was sleeping alone in her house and did not come out for long time, then the wife of the informant, namely Uma knocked the door of the Yasoda. However, no response was given from inside the house and the house was found locked from inside. Thereafter, wife of the Informant-Uma informed about the aforesaid fact to the Informant. Informant and his brother Janki and Ram Ratan came and called Yasoda from outside. However, there was no response from inside the house. Thereafter, they went to the terrace of their house to look into the house of Yasoda and found that at the back of the house there was an entry in the wall and when they entered from the aforesaid, they found that the deceased was lying dead on the cot and her right hand and left leg was tied and the mouth was gagged with cloth and the jewellery (10 lacche of silver and earrings of gold) which the deceased wore daily were missing. On the aforesaid basis, a first information report was lodged being Case Crime No.67 of 1983 under Section 460 I.P.C. at Police Station Aliganj, District Etah.

4. The Panchayatnama of the deceased was held on 28th February, 1983 wherein Ganga Sahai, Mewa Ram, Ram Bhajan Lal, Jagat Pal and Zamadar were the panch witnesses and according to the opinion in Panchayatnama, the deceased has been murdered.

5. The body of the deceased was thereafter sealed and sent for postmortem. Investigating Officer prepared the site plan of the place of occurrence on 28th February, 1983 and the same was marked as Ex.Ka.4. Investigating Officer has further recovered Dhoti and rope from the place of occurrence on 28th February, 1983. A recovery memo in respect of the same was prepared being Ex.Ka.12. Investigating Officer further on 28th February, 1983 also recovered household goods from the place of occurrence and the same was marked as Ex.Ka.13.

6. During investigation, Appellant was arrested under Section 25 of the Arms Act and after arrest, Appellant has confessed that Military and Sant Ram has murdered the deceased and jewellery of deceased was taken by them and that he has hidden the jewellery of the deceased in the agricultural field and that he can recover the same. On the basis of the aforesaid statement of the Appellant, on 8th March, 1983 the Appellant got recovered 10 piece of silver Laccha (jewellery) having weight of 200 grams from the agricultural field near the tree on the pointing out of Appellant from a place where he has hidden the jewellery of the deceased and after digging the soil for one feet, jewellery was recovered and the same was sealed in a cloth. The aforesaid recovery was made in the presence of witnesses Roshan Lal and Ram Dulare. Investigating Officer has prepared the recovery memo dated 8th March, 1983, which is Ex.Ka.2. The jewellery so recovered was identified by Jagan Lal, Ram Ratan, Usha and Savitri Devi before the Executive Magistrate on 2nd May, 1983.

7. Investigating Officer after completion of the investigation has submitted chargesheet against Appellant in Case Crime No.67 of 1983 on 16th May, 1983 under Section 460/411 I.P.C. Appellant denied the charges and claimed to be tried. On 10th July, 1984 the trial court has framed the charges against Appellant under Sections