JUDGMENT Surinder Singh, J. In Sessions Trial No. 23 of 2009, the appellant Krishan Chand as well as the main accused Jimmy Thakur were charge-sheeted and tried for the offences punishable under Sections 302 and 392 read with Section 34 of the Indian Penal Code for having committed robbery and murder of Smt. Tara Devi, hereinafter referred to as “the deceased”. At the end of the trial, they were held guilty and accordingly convicted for the offences punishable under Sections 392 and 304-II of the Indian Penal Code and were sentenced to undergo the imprisonment under each of the Sections as follows:- Section 392 IPC.Rigorous imprisonment for five years and to pay a fine of ‘.5,000/-. In default of payment of fine, further to undergorigorous imprisonmentforaperiod of three months.Section 304-II IPC Rigorous imprisonment for fiveyears and to pay a fine of ‘.5,000/-. In default of paymentof fine, further to undergorigorous imprisonmentforaperiod of three months.Both the sentences were ordered to run concurrently. The stolen articles/jewellery were ordered to be returned to the rightful owner after expiry of the statutory period of appeal or as directed by the Appellate Authority. The period of detention was ordered to be set off as per the provisions of Section 428 of the Code of Criminal Procedure. 2.Accused Jimmy Thakur did not prefer any appeal. However, Krishan Chand alias Sambhu, appellant has challenged his conviction and sentence in the present appeal. 3.The brief facts giv ing rise to the present appeal can be stated thus. PW-17 Ram Lal, the husband of the deceased, was Sub Inspector Radio Operator in B.S.F., posted at Calcutta, whereas their children were undergoing training at Gawalior and the deceased had been residing alone in her village Talaw.(ii) On 9.12.2008, around 7.30 a.m, she was found murdered in her residence. (iii) PW-2, Smt. Kesri Devi was her neighbour and used to purchase milk from her. It was she who noticed the deceased having murdered when she had gone to her residence to take milk and there was no response from inside. She found that the electric lights of two rooms of the deceased were on and the door was open. She went inside and found a pillow upon her mouth. Her hair were scattered and nose pin was missing. She noticed blood from her mouth and nostrils. She found that the electric lights of two rooms of the deceased were on and the door was open. She went inside and found a pillow upon her mouth. Her hair were scattered and nose pin was missing. She noticed blood from her mouth and nostrils. When she removed the quilt from her body, she also noticed that her salwar was not on her body, her bangles were broken and its pieces were lying scattered on the floor of the room. She came out and raised hue and cry,called her neighbours, whereupon Smt. Anita, Usha and PW-1 Brij Lal came to the spot.(iv) PW-15 Satish Kumar, a labourer and neighbour of the deceased had noticed gathering in the house of the deceased. On reaching there, he came to know about the said incident and made a call to the police from his mobile.(v) PW-31, Inspector/SHO Lal Singh, Police Station, Sarkaghat attended his telephone and on coming to know about the incident, recorded its entry on daily diary and proceeded to the spot alongwith other police personnel. On the spot, he took photographs of the dead body, recorded the statement of PW-1 Brij Lal Ext. PW-1/A under Section 154 of the Code of Criminal Procedure and sent Rukka for the registration of the case. He prepared the inquest report and sent the dead body for autopsy to hospital at Sarkaghat under the supervision of Head Constable Inder Singh and Lady Constable Anjana Devi, but the lady medical officer was not available, as such, the post mortem was conducted in Zonal Hospital, Mandi. (vi)Inspector Lal Singh aforesaid had prepared the spot map of the incident Ext. PW 31/D. He also recovered two cups Ext. P-1 and Ext. P-2 having stains of tea lying on the table in the room vide memo Ext. PW-1/B. These were made into parcel and sealed in the presence of the witnesses Balbir Singh and Hari Singh. He also took into possession broken bangles Ex. P-3 vide memo Ext. PW-1 /C. One quilt cover Ext. P-4, blanket Ext. P-5, underwear Ext. P-6 and pieces of clothes Ext. P-7 found in the room of the deceased were taken into possession vide memo Ext. PW-1 /D in the presence of witnesses Balbir Singh and Brij Lal. He also took into possession broken bangles Ex. P-3 vide memo Ext. PW-1 /C. One quilt cover Ext. P-4, blanket Ext. P-5, underwear Ext. P-6 and pieces of clothes Ext. P-7 found in the room of the deceased were taken into possession vide memo Ext. PW-1 /D in the presence of witnesses Balbir Singh and Brij Lal. (vii) There was also vomited material lying in another room, which was lifted from the spot, put, sealed in a bottle and taken into possession vide memo Ext. PW-1/E in the presence of the aforesaid witnesses. The sample-seal Ext. PW-1 /F was taken on a piece of cloth. (viii)On 10.12.2008, he re-visited the spot and found hair Ext. PW-1 8/C lying on her sweater, which were sealed in a match box and taken into possession vide memo Ext. PW-18/A in the presence of PW-1 8 Anju Sharma and PW-1 9 ASI. Satish Kumar. (ix) Post-mortem was conducted by a team of doctors including PW-22 Sanjiv Raj Kapoor. He noticed blood trickling from the mouth and nostrils flowing towards the right side of the face. There was a bluish discoloration of head, face, neck both upper lips and upper 1/4th of front of chest with gross puffiness of face. There was also bluish discoloration of fingers and nails. However, eyes were closed. Cornea was hazy. He noticed as much as 7 injuries on her face. Blood was also found inside the oral cavity. The tongue was having teeth marks. There was lacerated wound 1/2 cm x 1/2 cm present over central incisors over gums reddish in colour and lacerated wound 3cm x 1 cm over base of inner aspect of lower lip and inner aspect of both cheeks were contused and abraded opposite to upper molar teeth. The inner aspect of the upper lip was having a laceration. There was generalized swelling of neck having multiple superficial abrasions present and contusions. On the dissection of the neck, there was gross extravasation of blood, ribbon muscles were lacerated and contused, having blood around the said muscles. However, hyoid bone was intact. There were also multiple contusions with distended veins over anterior aspect of both shoulders. Right forearm was having multiple abrasions and lacerations. Left forearm was also having injuries. There were also injuries on the right infrascapular region, lower lip and the scalp. Trachea was full of frothy blood. However, hyoid bone was intact. There were also multiple contusions with distended veins over anterior aspect of both shoulders. Right forearm was having multiple abrasions and lacerations. Left forearm was also having injuries. There were also injuries on the right infrascapular region, lower lip and the scalp. Trachea was full of frothy blood. Pharynx was found congested in the abdomen. There was no injury on the generation organs, but the vaginal swab was taken. On opening abdomen, uterus was found enlarged. (x)The doctor certified that the death was due to asphyxia as a result of combined effect of smothering and forcible compression of neck and respiratory passages. (xi) The viscera was preserved and sent for forensic examination. Post-mortem report is Ext. PW-22/A. After receipt of the chemical examiner report, their report Ext. PW-30/D remained the same.(xii) Accused Jimmy Thakur was arrested on 16.12.2008 whereas accused-appellant Krishan Chand @ Sambhu was arrested on 20.12.2008.(xiii)Accused Krishan Chand @ Sambhu, appellant herein, while in custody of the police, made disclosure statement Ext. PW-3/A in the presence of PW-3 Ashok Kumar and Gulaba Ram under Section 27 of the Indian Evidence Act, whereby he disclosed that he had kept hidden the stolen goods in the kitchen garden, to which he only knew and he could get it recovered. Thereafter, he led the police party to the spot sand got it recovered from a pit on which a flower pot was kept. These stolen articles Ext. PW 3/A-1 to Ext. PW-3/A-1 6 were identified by PW­17 Ram Lal, the husband of the deceased. Thereafter, these articles were sealed with seal impression “Y” in the presence of the aforesaid witnesses and taken into possession vide memo Ext. P.W. 3/B. (xiv) On 22.1 1 .2008, the investigation of the case was handed over to PW-29 ASI Brahmu Ram as PW-31 Inspector/SHO had fallen ill. During interrogation, accused Krishan Chand @ Sambhu made disclosure statement Ext. PW-4/A to the effect that he and accused Jimmy Thakur had in equal shares divided the booties. He could recover computer woofers, wine bottle, soap, oil, powder etc., which were kept concealed by him in his house at village Baswater. Pursuant to this statement made before PW-4 HC Devinder Singh and PW-7 Jagdish Chand, he got it recovered from his residence vide memo Ext. He could recover computer woofers, wine bottle, soap, oil, powder etc., which were kept concealed by him in his house at village Baswater. Pursuant to this statement made before PW-4 HC Devinder Singh and PW-7 Jagdish Chand, he got it recovered from his residence vide memo Ext. PW-6/A in the presence of PW-6 Prakash Chand and Jagdev Singh, which were identified by PW- 17 Ram Lal, to be of his own by the imprint of “CSD” on each of the items as having been purchased by him from the military canteen. The site plan of recovery Ext. PW-28/A was accordingly prepared. (xv)Similarly, accused Jimmy Thakur had also got recovered certain articles from his residence. (xvi) On 25.12.2008, blood and salvia samples of both the accused in this case were taken by the Medical Officer at the request of the police for DNA test. As per the report of the Chemical Examiner, the vomit material which was taken into possession from the residence of the deceased, was found to be that of co- accused Jimmy Thakur. (xvii) As per the final opinion, Ext. PW-30/C, the possibility of sexual intercourse was also not ruled out. However, no alcohol or poison was detected in the viscera as per report Ext. PW-30/D. The Forensic Science Report is Ext. PW-33/A and the DNA profile report is Ext. PW-33/B. 4.After receiving the aforesaid reports and completing the investigation, the challan was presented against the accused persons for their trial in the Court for the offences aforesaid. 5.In the opinion of the learned trial Court, on the strength of the aforesaid evidence, the intention of the accused persons was to commit robbery and not to cause murder and it did not find anything against them that they had gone armed to the house of the deceased to commit murder, but they entertained knowledge that their act to obstruct respiratory passages of the deceased by putting hand or pillow was likely to cause death, as such, convicted and sentenced both of them as aforesaid. Hence, the present appeal. 6. Shri G.R. Palsra, learned Counsel for the accused vehemently argued that there is no connecting evidence with respect to the accused- appellant to hold him guilty for the offences punishable under Sections 304-II and 392 of the Indian Penal Code. Hence, the present appeal. 6. Shri G.R. Palsra, learned Counsel for the accused vehemently argued that there is no connecting evidence with respect to the accused- appellant to hold him guilty for the offences punishable under Sections 304-II and 392 of the Indian Penal Code. He also led me through the evidence and submitted that the evidence with respect to the recovery of the alleged articles is contradictory in as much as the place of execution of the disclosure statements is concerned and is not worth inspiring confidence, as such, he deserves to be acquitted. 7.On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further submitted that accused Jimmy Thakur has not preferred any appeal against his conviction and sentence and both the accused are proved to have used the motor cycle bearing No. HP-33-0426 for commission of the offence. The presence of accused Jimmy Thakur stands connected with his vomit by DNA test and both of them had shared the booties, as such, the accused-appellant escaped the liability. 8.I have examined the evidence on record meticulously. The merits of the case qua Jimmy Thakur convict are not being discussed and examined here as his case is different from the appellant herein and no challenge has been made by him against his conviction and sentence. 9.On the critical examination of the evidence, I do not find any direct or circumstantial evidence connecting the appellant with the offence of culpable homicide not amounting to murder qua the deceased. Even his presence with the main accused on the day or prior to the date of incident in the house of the deceased is not established. The motor-cycle of Shri Anil Kumar, alleged to have been used to commit offence by the appellant and the other convict though taken into possession, but he was not examined. The case against him only hinges upon the recoveries made pursuant to his disclosure statements under Section 27 of the Evidence Act. 10.Pertinently, the accused-appellant was arrested on 20.12.2008 and the alleged disclosure statement Ext. The case against him only hinges upon the recoveries made pursuant to his disclosure statements under Section 27 of the Evidence Act. 10.Pertinently, the accused-appellant was arrested on 20.12.2008 and the alleged disclosure statement Ext. PW-3/A was made by him on the same day in the presence of PW-3 Ashok Kumar and Gulaba Ram, to the effect that he had concealed the gold and silver ornaments in a polythene packet in the kitchen garden of his house beneath a flower pot (Gamla), which he could get recovered and this statement, according to PW-31 Lal Singh, was made by the said accused at Village Khudla at about 500 meters away from his house. PW-3 Ashok Kumar has corroborated this version, but he stated that it was made in Village Baswater at a distance of about 500 meters away from the house of the accused. Shri G.R. Palsra, learned Counsel for the accused submitted that PW-1 Brij Lal has named a different village as stated by PW Lal Singh aforesaid, which shakes prosecution case; is devoid of any merit because where the statement was made and recorded is about 500 meters away from the house of the accused and it appears that both the named places are quite adjacent to each other, thus this contradiction is of a minor nature which does not shake the basic fabric of the prosecution case. 11.Further, according to PW-31 Lal Chand, the accused-appellant led the police party to the spot and got recovered the jewellery, as stated by him, in the presence of the witnesses which were kept concealed in a pit, covered with the earth, over which a flower pot was kept. The accused-appellant removed the flower pot, dug up the pit and got recovered the ornaments of gold and silver Ext. PW-3/A-I to Ext. PW-3/A-1 6 which, as already stated above, were proved by both these witnesses and the said items of jewellery were identified by PW-1 7 Ram Lal, the husband of the deceased, to be of his wife on the spot as well as during the trial, which have also not been claimed by the accused. This evidence shows that the accused had the special knowledge of concealment of these articles which was not known to others. 12.Similarly, on 22.12.2008, during the investigation by PW-28 ASI Brahmu Ram, accused- appellant also made disclosure statement Ext. This evidence shows that the accused had the special knowledge of concealment of these articles which was not known to others. 12.Similarly, on 22.12.2008, during the investigation by PW-28 ASI Brahmu Ram, accused- appellant also made disclosure statement Ext. PW­4/A with respect to the recoveries in the presence of PW-4 Head Constable Devinder Singh and HHC Jagdish Chand that he could get recovered the computer woofers, wine bottle, soap, oil, powder etc. which have been kept by him concealed at this residence and this was got recovered by him vide memo Ext. PW-4/B. These documents were proved by the Investigating Officer, aforesaid as well as PW­4 Head Constable Devinder Singh. The recovery pursuant to the disclosure statement was also made and these items were identified by PW-1 7 Ram Lal, allegedly kept by him in a box at his residence having the mark of the ‘military canteen’. PW-5 Viveka Nand corroborated the statement of the Investigating Officer as well as PW-1 7 Ram Lal identified these articles viz. umbrella, 4 pieces of soap ‘Hammam’ and ‘Dove’ (one), one piece of ‘Detol’ soap, tooth paste with brush, one powder ‘Denam’, ‘Dabur Amla’ oil and spray perfume cover having ‘CSD’ print. Its identification by Ram Lal is also not disputed nor the recovery of articles aforesaid effected pursuant to the above disclosure statements have been claimed by the appellant to be his own. 13.The incident had taken place during the intervening night of 8/9-12-2008, whereas the accused appellant was arrested on 20-12-2008, on which date, he is alleged to have made the disclosure statement regarding the jewellery aforesaid of the deceased, effected the recoveries and thereafter qua other items on 22.12.2008. The aforesaid evidence is relevant under Section 27 of the Evidence Act with respect to the fact of recovery which came into existence after information of the said accused when he was accused of the alleged offences and in the police custody or under their surveillance. The information given by him by his disclosure statements, clearly relates to the facts recovered. 14.Pertinently, the accused did not claim any of the articles aforesaid nor explained as to how he had acquired its possession. His denial simplicitor in view of the above evidence is meaningless. The information given by him by his disclosure statements, clearly relates to the facts recovered. 14.Pertinently, the accused did not claim any of the articles aforesaid nor explained as to how he had acquired its possession. His denial simplicitor in view of the above evidence is meaningless. Otherwise also, the said articles are proved to be a ‘theft property’ and as per the case of the prosecution, the dead body was denuded of the jewellery by removing her ornaments and those were recovered at the instance of the appellant herein. 15.Though, on sifting the evidence, I do not find any connecting evidence that the accused- appellant is the perpetrator or had assisted the main accused in committing the crime of murder or culpable homicide not amounting to murder of the deceased, but it stands established that the recovered property was a ‘stolen property’; the way, in which the property was concealed by him, regarding which he had the special knowledge, imputes the dishonesty on the accused-appellant and he also retained it in such a way that he had a reason to believe that the same was a ‘stolen property’. Therefore, he is liable to be punished only under Section 411 of the Indian Penal Code. 16.. For the aforesaid reasons, the conviction and sentence passed and imposed upon the accused- appellant for the offences punishable under Sections 304 Part-II and 392 of the Indian Penal Code are set aside by giving him the benefit of doubt, but however, the appellant is held guilty, thus convicted under Section 411 of the Indian Penal Code. 17.Keeping in view the sentence provided for the said offence, his sentence is reduced to “three” years and to pay a fine of ` 5,000/-. In default of payment of fine, to further undergo simple imprisonment for a period of “three” months. 17. The perusal of the record shows that the accused-appellant right from his arrest i.e. 20.12.2008 is in jail and by now, he has already served the sentence imposed, therefore, he be released forthwith, if not required, in any other case. 18. The appeal stands accordingly disposed of. Registry to send the warrant of release in conformity with this judgment, forthwith. 19.Send down the records.