JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. This appeal is directed against the judgment of conviction and order of sentence dated 20th November, 2002 passed by Shri Braj Kishore Pandey, Sessions Judge, Seraikella-Kharsawan in Sessions Trial No.160 of 2001 holding the appellant guilty only under Section 380 of the Indian Penal Code and sentenced five years rigorous imprisonment for the said offence. 3. The short fact of the case is that fardbeyan of Smt. Lidon Purti recorded by S.I., A.P. Sharma of Seraikella Police Station on 16.12.2000 at 17.45 p.m. at village Ragragi that her father Late William Mohan Sundi after his retirement purchased land at Ragragi village 16 years ago and had constructed a house 10 years ago where her mother was residing permanently. The informant and her other brothers and sisters used to visit there from time to time. On 14.12.2000, her mother Budhni Kui had withdrawn Rs.1425/- as pension from State Bank of India, Chaibasa along with informant. After receiving pension, her mother returned to her village Ragragi and informant returned to Baraguyra village. On 15.12.2000 at 11.00 a.m., she came to Ragragi village and found main door locked from outside. When she tried to open the door, it was found that the same was also closed from inside the house. She called villagers Seema Mundri. Both managed to open the main door and when she went inside the house, she found her mother dead in the room. She started weeping then villagers came and saw her mother dead. She informed the death of her mother to Nato Tape, Burgi Tape and also sent message to Baraguyra. After some time, she also found that the ceiling of the roof was broken and tiles of the room next to her mother’s room were removed. She also found that from that room a deck, sound box and 10 cassettes were also missing and the box was broken and from that Rs.1400/- was also missing. On 15.12.2000 at around 6.00 p.m, her brother Lajrus Sundi and Anand Sundi came from Baraguyra and took the dead body of mother to Baraguyra. Her brother-in-law Sitaram Lamaya noticed the injuries and black spot on the neck of the dead body and suspected that somebody had murdered for which a case may be lodged. On 15.12.2000 at around 6.00 p.m, her brother Lajrus Sundi and Anand Sundi came from Baraguyra and took the dead body of mother to Baraguyra. Her brother-in-law Sitaram Lamaya noticed the injuries and black spot on the neck of the dead body and suspected that somebody had murdered for which a case may be lodged. Thereafter, they came to village Ragragi and inquired from co-villager and got the knowledge that Damu Tape son of Vijay Tape and others have committed the murder of her mother as well as they have also committed theft of a deck, a set of sound box, ten cassettes and cash from her house. Damu Tape is concealing himself. Believing the said information, she went to Police Station where she gave her statement. She claimed that on 14.12.2000/15.12.2000 Damu Tape had committed murder of her mother as well as committed theft in the house. She further claimed that she could identify the deck and other theft articles. 4. This fardbeyan was forwarded to Officer-in-Charge, Seraikella Police Station for instituting the case under Sections 457, 380 and 302 of the Indian Penal Code and on the basis of the same, a formal F.I.R. was instituted being Seraikella P.S. Case No. 86 of 2000 dated 16.12.2000, corresponding to G.R. No.716 of 2000. During investigation, Sections 394 and 411 of the Indian Penal Code were also added vide order dated 20.01.2001. During investigation, the Police recorded statement of accused Damu Tape and on that very basis recovered sound box and cassettes kept under cover of straw in the Khalihan of appellant. 5. The stolen deck was also recovered from the shop of another accused Sunil Kumar Jyotishi. After completion of investigation, the charge-sheet was submitted against named accused Damu Tape and non F.I.R. accused Sunil Kumar Jyotishi under Sections 394, 302/411 of the Indian Penal Code. After taking cognizance, the case was committed to the Court of Sessions and charge was framed upon Damu Tape under Sections 302, 380 and 411 of the Indian Penal Code whereas charge upon Sunil Kumar Jyotishi was framed under Section 411 of the Indian Penal Code. 6. The prosecution in order to prove the case have examined altogether 18 witnesses but no oral evidence was adduced by the defence. 7. 6. The prosecution in order to prove the case have examined altogether 18 witnesses but no oral evidence was adduced by the defence. 7. The court below after consideration of the evidences adduced on behalf of the prosecution and the material available on record, came to the finding that the prosecution has failed to establish guilt of accused Sunil Kumar Jyotishi and as such he was not held guilty under Section 411 of the Indian Penal Code and was discharged from the liabilities of his bail bond. The court below further find and held that the prosecution also could not prove the guilt of accused Damu Tape so far charges under Sections 302 and 411 of the Indian Penal Code are concerned and as such he was also not held guilty and was acquitted from those charges. The court below found accused Damu Tape guilty only under Section 380 of the Indian Penal Code and convicted thereunder and sentenced him to undergo rigorous imprisonment for five years. The appeal has been filed by the sole appellant challenging his conviction under Section 380 of the Indian Penal Code. 8. P.W.1 Sita Ram Ramai, son-in-law of the deceased stated that Budhni Kui was his mother-in-law and her murder was committed nine months ago. He further deposed that theft was committed in the house and cassettes, sound box and Rs.1400/- were missing. The occurrence was committed by removing the tiles of the ceiling of the house. After getting the news, he came and his sister-in-law has lodged the case. He could not state who committed the murder as well as committed theft in the house He has proved his signature on the fardbeyan which has been marked as Ext.1. He also stated that he could know from the villagers that Damu Tape has committed murder of his mother-in-law. During cross-examination, he stated that he had not seen committing theft and murder. He also stated that the Police has recorded the confessional statement of Damu Tape on which Paharpur Mundri (P.W.3) has also signed. 9. P.W.2 Moto Tape has stated that he is not aware that who had committed murder of Budhni Kui. Later on, he could know that some theft was committed in the house. He further stated that accused Damu Tape has given a deck for repair and has also purchased a pant and went to Tata. 9. P.W.2 Moto Tape has stated that he is not aware that who had committed murder of Budhni Kui. Later on, he could know that some theft was committed in the house. He further stated that accused Damu Tape has given a deck for repair and has also purchased a pant and went to Tata. He recognized the shopkeeper as well as Damu Tape in court. During cross-examination, he stated that it was Manorma Repair Shop which used to repair tape recorder. He further stated that the persons belonging to his village used to give their tape recorder for repair to Damu Tape and the shopkeeper after taking repair charges, used to repair. Even before the offence, Damu Tape has given tape for repair for which Rs.31/- as repair cost was charged and the shopkeeper has promised to return the goods repaired after 5-6 days. It was not known that the deck was theft material. He also stated that he had not seen committing theft of those articles although Damu was arrested by the Police. 10. P.W.3 Paharpur Mundri has stated that Budhni Kui was known to him. She was living alone in the house. Her murder was committed ten months ago and theft was committed in the house relating to deck, cassettes, sound box and cash. Police has arrested Damu Tape where he has admitted his involvement in the occurrence. This witness has also signed on the confessional statement. His signature on it has been proved as Ext.1/1. He further stated that the Police has recovered sound box from the heap of straw from the Khalihan of Damu Tape and has prepared seizure list on which he has signed which has been marked as Ext.1/2. During cross-examination, he has stated that he is not an eye witness to the occurrence of theft or murder. 11. P.W.4 is Goorgi Tape. He is one of the signatory upon the seizure list by which sound box etc. were recovered. His signature on it was marked as Ext.1/3. During cross-examination, he admitted that the deceased was his grandmother in relation but he is not an eye witness to the occurrence. 12. P.W.5 is Sunil Godsera. He has stated that Damu had confessed before the Police. 13. P.W.6 Lajrus Sundi is son of the deceased. He has stated that his mother was living alone in the village. During cross-examination, he admitted that the deceased was his grandmother in relation but he is not an eye witness to the occurrence. 12. P.W.5 is Sunil Godsera. He has stated that Damu had confessed before the Police. 13. P.W.6 Lajrus Sundi is son of the deceased. He has stated that his mother was living alone in the village. He got news from his brothers about her murder and commission of theft in the house. During cross-examination, he admitted that he has got the knowledge from the villagers. 14. P.W.7 Lajrus Lamay stated that the deceased was his grandmother (Nanee). At the time of occurrence, he was at Jamshedpur where he got the knowledge of murder. During cross-examination, he stated that he was not present at the time of recovery of deck from the shop. 15. P.W.8 Birsa Purty is signatory on the inquest report and his signature has been marked as Ext.1/4. During cross-examination, he stated that the deceased was his sister. 16. P.W.9 Mohan Purty is one of the signatory of the inquest report which has been marked as Ext.1/1. 17. P.W.10 Anand Sundi is son of the deceased. He also heard that sound box was recovered from the appellant. He stated that he is hearsay witness. 18. P.W.11 Lurku Ram Godsera is neighbor of deceased Budhni Kui. He has stated about the knowledge of occurrence of murder, commission of theft in the house of deceased. During cross-examination, he also stated that he had not seen anyone entering in the house of deceased and he is deposing on the basis of the knowledge from the villagers. 19. P.W.-12 Labu Melgandi deposed that he was knowing Budhni Kui who was living alone in the house. She was murdered. He along with others detained Damu Tape but he had not disclosed where the theft goods were kept. During cross-examination, he stated that he is not an eye-witness either of theft or of murder. He also stated that Police has not recorded his statement. On the advice of the daughter of deceased, he is deposing before the court. He also denied the suggestion about giving false evidence before the court. 20. P.W.-13 Moti Ramai is daughter of deceased who has also deposed that after getting the knowledge of murder of her mother, she came and saw the injuries on the neck of the dead body. He also denied the suggestion about giving false evidence before the court. 20. P.W.-13 Moti Ramai is daughter of deceased who has also deposed that after getting the knowledge of murder of her mother, she came and saw the injuries on the neck of the dead body. She also got knowledge about the theft of sound box, deck, cassettes and clock as well as cash of Rs.2500/-. She got the knowledge from the villagers that Damu committed her murder. She was at Jamshedpur at the time of occurrence. During cross-examination, she also stated that she was not present at the time of T.I.P. of goods which were recovered by the Police. 21. P.W.-14 Lidon Purti is informant of this case. She narrated the prosecution story in detail and stated that her mother Budhni Kui was murdered in the village Ragragi where she was residing alone and all the brothers and sisters used to meet her time to time. She further stated that on 14.12.2000, after withdrawing pension, she returned to Ragragi village and informant returned to her Mayke. She got information about the death of her mother and when she reached, she found the front door locked. She entered the house after opening it with the help of co-villager Digmundri. She found her mother dead and started weeping. The villagers assembled there and asked about the cause of weeping. She found that the ceiling of the tiles was removed. She also found that the seal of the box was broken and Rs.1400/- kept in the box was also missing as well as deck and cassettes. She sent the information to her brothers who came and took the dead body to Baraguyra. They noticed about the blackening in the neck of the dead body then they suspected that someone had committed the murder then they approached Seraikella Police Station and lodged the case. She signed on the fardbeyan which was proved as Ext.1/6. Her brother-in-law Sitaram Ramay has also signed on the fardbeyan which was marked as Ext.1/7. She further deposed that on the basis of confessional statement of Damu Tape, goods were recovered but she was not present at that time. During cross-examination, she stated that she had not seen Damu Tape committing theft or murder. She could know from the villagers but she could not state their names from whom she get the knowledge. She further deposed that on the basis of confessional statement of Damu Tape, goods were recovered but she was not present at that time. During cross-examination, she stated that she had not seen Damu Tape committing theft or murder. She could know from the villagers but she could not state their names from whom she get the knowledge. She denied the suggestion that Damu Tape is innocent. She also stated that the recovered goods were identified by her and Lajrus Lamay at the Police Station although she was not present at the time of its recovery. 22. P.W.-15 Bablu Singh Modak and P.W.-16 Hablu Modak were declared hostile as they have not supported the prosecution case. 23. P.W.-17 Anirudh Prasad Sharma is the I.O. of the case who has stated that he was posted on 16.12.2000 at Seraikella Police Station and on that day he has recovered the statement of Lidon Purti and she had put her signature over it which has been marked as Ext.2. This fardbeyan was sent to Seraikella Police Station for lodgement of the case. Formal F.I.R. was proved as Ext.3. During investigation, he had recorded re-statement of the informant and inspected the place of occurrence. He found the ceiling of the roof was torn enough so that a man can enter through it. He has stated that the dead body of Budhni Kui was found in Baraguyra village in the house of Lajru Sundi. He has prepared the inquest-report which has been proved as Ext.4. He has arrested the accused Damu Tape who has confessed before him and on that very basis he recovered from his Khalihan a sound box and a bag containing ten cassettes. He prepared seizure-list which has been marked as Ext.5. The confessional statement of accused has been proved as Ext.6. He also recovered one deck, cassette player of Weston Company No. RS-530 from Manorma Deck Shop, Seraikella and prepared a seizure-list which has been marked as Ext.5/1. He had also recorded the statement of other witnesses. He got post-mortem report and after completion of investigation submitted the charge-sheet in this case. During cross-examination, he has stated that Manorma Deck Shop is situated by the side of the main road where repairing of tape, deck and radio are being done. He found other tape recorder etc. in that shop. He got post-mortem report and after completion of investigation submitted the charge-sheet in this case. During cross-examination, he has stated that Manorma Deck Shop is situated by the side of the main road where repairing of tape, deck and radio are being done. He found other tape recorder etc. in that shop. He also stated that Paharpur Mundri was present at the time of recording of confessional statement of the accused. He denied the suggestion that he has not taken any step for recording of statement of accused under Section 164 of the Code of Criminal Procedure. Some contradictions were also taken from this witness. He denied the suggestion that his investigation was faulty and no such confessional statements were given before him. 24. P.W.-18 is Dr. Latif Minz, who has conducted the post-mortem examination on the dead body of the deceased Budhni Kui. In his opinion, the cause of death was throttling. Post-mortem report was marked as Ext.7. 25. The statements of both the accused were recorded under Section 313 of the Code of Criminal Procedure where both have denied evidence against them and stated that they are innocent. 26. Learned counsel for the appellant submitted that apart from other witnesses even the informant is also a hearsay witness. She further submitted that all witnesses are interested witnesses but they are not an eye-witness. She submitted that P.W.2 Moto Tape deposed that villagers used to give their deck for repair to appellant Dame Tape which he was getting it repaired from Manorma Deck Shop, Seraikella and due to this reason the trial court has acquitted another accused Sunil Kumar Jyotishi. She also submitted that confessional statement of appellant was made before the Police on which his thumb impression has not been taken so it is not a reliable document. Lastly, she submitted that the appellant remained in custody during trial for about 26 months. He was taken into custody on 18.12.2000 and was granted bail by the appellate court on 24.02.2003. 27. Learned A.P.P. opposed and submitted that although the prosecution could not examine any eye-witness but on the basis of the confessional statement of the appellant, led to the recovery of sound box and ten cassettes kept in a bag and was concealed in the Khalihan (Ext.5) of the appellant. 27. Learned A.P.P. opposed and submitted that although the prosecution could not examine any eye-witness but on the basis of the confessional statement of the appellant, led to the recovery of sound box and ten cassettes kept in a bag and was concealed in the Khalihan (Ext.5) of the appellant. On the basis of this statement, one deck and cassette player were also recovered from Manorma Deck Shop, Seraikella for which a seizure-list Ext.5/1 was also prepared. Therefore, the court below has rightly convicted the appellant under Section 380 of the Indian Penal Code. 28. Having heard the counsel for both the sides and on scrutiny of evidences adduced on behalf of the prosecution, it appears that no eye witness is examined in this case committing theft in the house of deceased but as per the evidences brought on record, it appears that the statement of appellant led to recovery of sound box and ten cassettes which were identified by the informant and another witness Lajrus Lamay (P.W.7). The prosecution has able to prove the recovery of theft property from the deceased and therefore in such circumstances, the conviction made by the trial court under Section 380 is confirmed. So far sentence awarded to this appellant is concerned, is reduced to the period already undergone in the case by the appellant. 29. In this circumstances, the judgment of conviction and order of sentence dated 20th November, 2002 passed by Sessions Judge, Seraikella-Kharsawan in Sessions Trial No.160 of 2001 is affirmed. 30. In the result, the appeal is dismissed with the modification in the sentence. 31. Appellant Damu Tape is on bail and in view of modification in the sentence, he is also discharged from liabilities of his bail bonds. 32. Let the Lower Court Records be sent back to the court concerned along with the copy of this judgment. Appeal dismissed.