JUDGMENT 1. - Since these two appeals: one through jail and the other represented, are directed against one and the same judgment of the learned Additional Sessions Judge, Sawai Madhopur (camp: Gangapur City) dated November 27, 1976, they were heard together and are decided by a single judgment By the impugned judgment the learned Sessions Judge convicted the appellants Bhagwati and Bhanwar under Sections 302/34 and 380, Indian Penal Code and sentenced each of them to imprisonment for life with a fine of Rs. 50/- on the first count and three years rigorous imprisonment with a fine of Rs. 100/- on the second count. The accused have come-up in appeal to challenge their convictions. 2. Briefly recalled, the facts and circumstances culminating in the prosecution and conviction of the appellants are that Jawahar Lal Brahmin--an old man of sixty-five years in age, was living alone in his house situate in Mohallah Chhatpara, Karauli. His son and daughter-in-law were living separately in some another house. The accused also resided in Mohallah Chhatpara--a few yards away from the house of Jawahar Lal. At about 8.00 a m on January 4. 1976, PW 1 Ramji Lal, who is a relative of Jawahar Lal. was informed by Jawahar Lal's grand-son Babulal that his grand-father was lying read on a cot in his house. Ramji Lal and Kaliyan (PW 14) went to Jawahar Lal's house and found him lying dead on the cot with a turban fastened around his neck. It appeared that somebody had killed him by strangulation. Ramji Lal straight-way went to Police Station, Karauli and presented written report Ex. P 1. The police registered a case under Section 302. Indian Penal Code. The usual investigation ensued. The Station House Officer Ajijuddin (PW 13) arrived on the spot and prepared the inquest of the victim's dead body. He also inspected the site and prepared the site plan. He found a red turban tightly fastened around the neck of the deceased. The post-mortem examination of the victim's dead body was conducted on the same day by PW 3 Dr. Gupta-- the then Medical Jurist, General Hospital, Karauli. He found some ante mortem external injuries and ligature marks round the neck of the victim's dead body. In the opinion of Dr. Gupta, the cause of death of Jawahar Lal was asphyxia resulting from strangulation. The post-mortem examination report prepared by him is Ex. P 6. Gupta-- the then Medical Jurist, General Hospital, Karauli. He found some ante mortem external injuries and ligature marks round the neck of the victim's dead body. In the opinion of Dr. Gupta, the cause of death of Jawahar Lal was asphyxia resulting from strangulation. The post-mortem examination report prepared by him is Ex. P 6. 3. On January 8, 1976, PW 11 Nathupal Singh, Head Constable Police, CRP, Sawai Madhopur, while on general patrolling duty on the Railway Station, noticed the appellants moving in suspicious circumstances. They were leaving one compartment and entering the other. He tried to catch-hold of them and the appellants started running away. However, they could not run away and were arrested. When their personal search was taken, tome gold and silver ornaments were seized and sealed. The appellants were lateron arrested in the case registered under Section 302, Indian Penal Code at Police Station, Karauli. In consequence of the disclosure statements made by them, some gold and silver ornaments were recovered. In the test identification, these silver and gold ornaments were identified to be of the deceased Jawahar Lal by his son Hargovind (PW 8) and other relatives. On the completion of investigation, the police submitted a challan against the appellants in the Court of Munsif and Judicial Magistrate, Karauli, who in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed charges under Sections 302, 460 and 380, Indian Penal Code against them, to which they pleaded not guilty and faced the trial. They denied their complicity in the murder of Jawahar Lal and claimed absolute innocence In support of its case, the prosecution examined sixteen witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of the trial, the learned Sessions Judge found no offence made out under Section 460, Indian Penal Code. He however, held that since the appellants were found in possession of the gold and silver ornaments and utensils of the deceased Jawahar Lal, a presumption can be safely raised against them that they had jointly committed his murder. The appellants were consequently convicted under Sections 302/34 and 380, Indian Penal Code and sentenced as mentioned at the very out-set. Aggrieved against their convictions, the accused have taken these appeals. 4. We have heard Mr. Doongar Singh, learned counsel for the appellants and the learned Public Prosecutor. The appellants were consequently convicted under Sections 302/34 and 380, Indian Penal Code and sentenced as mentioned at the very out-set. Aggrieved against their convictions, the accused have taken these appeals. 4. We have heard Mr. Doongar Singh, learned counsel for the appellants and the learned Public Prosecutor. We have gone also through the case file carefully. 5. Mr. Doongar Singh did not challenge the opinion of Dr. Gupta relating to the cause of death of Jawahar Lal nor the various recoveries made in consequence of the disclosure statements & at the instance of the appellant. The only submission made by him is that the Court below committed an error in raising a presumption against the appellants that since the ornaments and other articles of the deceased were found in their possession or were recovered at their instance, they had committed the murder of Jawahar Lal. It was argued vhat the murder of Jawahar Lal was committed before January 4, 1976. The appellants were, for the first time, arrested on January 8, 1976, Looking to this interval of 4/5 days, no presumption for graver offence under section 302, Indian Penal Code should have been raised against the appellants. It was argued that simply because the appellants were found in possession of the properties of the deceased-victim, it cannot be safely inferred that his murder was perpetrated by them. Reliance in support of the contention was placed on Pratap Singh v. Slate of Rajasthan (1984 WLN 133) decided by a Division Bench of this Court, of which one of us (Hon'ble Mr. Byas, J.) was a member. It was, on the other hand, contended by the learned Public Prosecutor that since the accused resided in the same street in which lived the deceased-victim Jawahar Lal, this fact along with the recoveries of the properties of the deceased from the appellants, was sufficient to show that the deceased was done to death by the appellants The Court below was, therefore, perfectly justified in raising a presumption under Section 114 of the Evidence Act and thereby to connect the appellants with the murder of the deceased Jawahar Lal. We have taken the respective submissions into consideration. 6. Admittedly, there is no eye witness of the occurrence. Again, there is no evidence that the accused were seen near about the house of the deceased on the day he was done to death. We have taken the respective submissions into consideration. 6. Admittedly, there is no eye witness of the occurrence. Again, there is no evidence that the accused were seen near about the house of the deceased on the day he was done to death. None had seen them entering or coming out of the house of the deceased. The fact that they resided in the same Mohallah in which resided the deceased-victim is hardly a factor to be taken into consideration in assessing the guilt of the accused. So many persons reside in the same locality in which resided the deceased-victim. As such, this fact taken into consideration by the Court below, discloses no incriminating material against the appellants. 7. The only piece of evidence against the appellants is that they were found in possession of the ornaments and properties of the deceased on January 8, 1976 and thereafter some ornaments and properties of the deceased were recovered in consequence of the disclosure statement made by them. The pertinent question, which arises for consideration is whether an inference can be raised under Section 114A of the Evidence Act that they had committed the murder of Jawahar Lal? The question was discussed thoroughly and elaborately by this Court in Pratap Singh's case. It was held that unless any other sort of linking or connecting evidence is there on record the presumption of graver offence like that under Section 302, Indian Penal Code should not be raised against the appellants on the basis of the properties of the deceased being found in their possession. In Pratap Singh's case, the decisions of the Supreme Court were referred, viz., Hukam Singh v. State of Rajasthan AIR 1977 Supreme Court 106) and N.D. Kalal v. The State of Karnataka, AIR 1980 Supreme Court 1753 . In Hukum Singh's case it was observed that something more should be required to connect the appellants with the murders than mere possession of ornaments and other articles belonging to the deceased-victims. It was held that it is quite possible that the appellant may have had nothing to do with the murder and he might have merely stolen the ornaments and other articles belonging to the deceased-victims after the murders were committed by some others. It was held that it is quite possible that the appellant may have had nothing to do with the murder and he might have merely stolen the ornaments and other articles belonging to the deceased-victims after the murders were committed by some others. Here in the instant case, there is no evidence that the appellants were seen near-about the house of the deceased-victim or entering or coming out of his house on the day of the incident. The only evidence against them is that of the recovery of the ornaments and some other properties of the deceased-victim. Since there is no other linking or connecting evidence, the recoveries of the ornaments etc. of the deceased from their possession are not sufficient to show that the murder was committed by them. No presumption for the graver offence under Section 114 Illustration (A) of the Evidence Act should be drawn against the appellants. The time-gap between the murder and the recoveries of the ornaments etc is of 4/5 days. The ornaments and the properties could change hands during this interval of 4/5 days. The conviction of the appellants under Section 302/34, and 380, Indian Penal Code is, therefore, bad and unsustainable. However, they can be safely convicted under Section 411, Indian Penal Code on account of the properties of the deceased found in their possession. 8. In the result, the appeals of accused Bhagwati and Bhanwar are partly allowed. Their conviction and sentences under Sections 302/34 and 380, Indian Penal Code are set-aside. Instead, they are convicted under Section 411, Indian Penal Code and each is sentenced to two and half years' rigorous imprisonment with a fine of Rs. 500/-, in default of the payment of fine to further undergo two months' like imprisonment. The appellants are on bail. In case they have not served out the full term of their sentence, they shall surrender before the Court below within one month to serve out the unexpired portion of their sentence and to deposit the fine. In case they fail to do so, the learned Additional Sessions Judge will proceed against them in accordance with law.Appeal Partly allowed. *******