SALDANHA, J. ( 1 ) THESE Criminal Appeals have been preferred by the original accused Nos. 1 and 3 in Sessions Case No. 70/92 in the Court of the Additional Sessions Judge, Shimoga. The original accused No. 2 had also preferred Cr. A. No. 643/96 which has since abated as accused No. 2 has passed away. The original accused No. 4 was shown as absconding and hence, we are concerned in these two appeals only with original accused No. 1, Krishna and accused No. 3, raja. It was alleged that on 26. 6. 1992 between 11. 30 a. m. and 2. 30 p. m. at the residence of deceased Shantha Bai which is situated at rajendranagar in Shimoga, the four accused entered the residential premises and strangulated Shantha Bai after which they are alleged to have committed robbery of various items of jewellery including an ear ring and an anklet that was worn by the deceased. The son of the deceased P. W. 15, Dr. Suresh Upadhyaya, who is a Dental surgeon came back to the house at about 2. 00 p. m. and found his mother lying on the floor. On closer examination, he found there appeared to be some injury marks on here neck and that the cupboard in the house was also ransacked and the various items of jewellery were missing. He immediately telephoned his sister P. W. 4, savitha Upadhyaya, who was working for a Bank. The daughter rushed to the house and subsequently, the police were also intimated. The incident as indicated by us took place on 26. 6. 1992 and it is the prosecution case that on 25. 7. 1992 on receipt of certain information by P. W. 13, P. S. I. Basavaraj, that he proceeded to the residence of P. W. 11, Devananda. According to him, since he had received information to the effect that some stolen property was likely to change hands, he had taken two pa'nchas with him. It is his case that on entering the house of P. W. 11, he found a boy there who was concealing something in his fist and on verifying it was found that the boy had two ear rings and a gold bangle which he was attempting to sell to P. W. 11. It is his case that on entering the house of P. W. 11, he found a boy there who was concealing something in his fist and on verifying it was found that the boy had two ear rings and a gold bangle which he was attempting to sell to P. W. 11. The P. S. I, states that he seized the items of jewellery under a mahazar and that the boy who is accused no. 1, Krishna was placed under arrest. It is the prosecution case that accused No. 1 made a voluntary statements pursuant to which the police arrested accused Nos. 2 and 3 on the same day whereas accused No. 4 about whom there is some controversy with regard to the correct name was shown as absconding and was never arrested at any time thereafter. It is the prosecution case that accused Nos. 2 and 3 also made certain voluntary statements and further that accused No. 2 led the police and the panchas to certain places at t. Narasipur, Mysore and Vatal and that the police recovered a seizable amount of jewellery as a result of his pointing it out. As far as accused No. 3 is concerned, it is the prosecution case that pursuant to the voluntary statement made by him ihat three heads of jewellery were recovered being M. Os. 6, 7 and 8 from a pawn broker who is P. W. 8, Padmaraj Jain, next M. Os 9 and 10 from an other jeweller who is P. W. 9 by the name of Manjunatha and that accused No. 3 led the police and the panchas to his house from where M. Os. 11,12 and 13 were recovered under the mahazar ext. P. 11. The prosecution relies very heavily on the recovery evidence because there are no eye-witnesses to what transpired at the house of deceased Shantha Bai nor is there any indirect evidence such as the evidence of persons who might have seen the accused either entering or leaving the premises. Again since Shantha Bai was strangulated, no weapon was used nor has it been recovered nor for that matter is this a case where there are any other incriminating articles such as blood stained clothes etc. that have been seized. We refer to this aspect only for one reason viz. , that the entire prosecution case depends totally on the recovery evidence. that have been seized. We refer to this aspect only for one reason viz. , that the entire prosecution case depends totally on the recovery evidence. The Trial court found the evidence satisfactory and held that both the charges under Sections 302 and 392 read with 34 IPC were established and convicted all the three accused. The accused were sentenced to undergo imprisonment for life for the offence punishable under section 302 IPC and sentenced to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 392 RPC. The substantive sentences were directed to run concurrently. The present appeals are directed against these convictions and sentences. As indicated by us earlier, accused No. 2 having died and the appeal filed by him having abated, all that survives is the present two appeals preferred by the original accused no. 1, Krishna and accused No. 3, Raja. ( 2 ) WE have heard the learned advocates who represent the appellants as also the learned Additional State Public Prosecutor and we have aiso very carefully reviewed the record. We need to make special mention of the fact that for the reasons as will be pointed out by us presently, we were required to scrutinise the documents that the prosecution has relied upon, particularly, the receipts issued for the jewellery in question, the counter-foils etc. , as it was very necessary in view of the challenge presented, to reexamine the question as to whether this evidence passes the total test of scrutiny. It will not be out of place for us to mention that accused No. 1 who has been referred to as a boy by P. W. 13, was sent 'o the hospital for purposes of ascertaining his age. The opinion given was to the effect that he was aged 14 years. Though a submission was canvassed before us that he ought to have been tried by the Juvenile Court,, we have over ruled this submission in view of the clear provisions of Section 27 Cr. P. C. which stipulates trial in the case of an offence punishable with death or imprisonment for life, that it is the Court of Sessions which will exercise jurisdiction even if the accused is a minor. P. C. which stipulates trial in the case of an offence punishable with death or imprisonment for life, that it is the Court of Sessions which will exercise jurisdiction even if the accused is a minor. We however heed to briefly record that accused No. 1 contended that he used to do certain odd jobs arid that he used to pluck coconuts and further that the police had arrested him in connection with an allegation that he had committed theft of coconuts. It is his defence that he had nothing to do with the present incident a'nd that since the police could not trace but the real culprits, that they have foisted the present charges on him. The defence of accused No. 3 who according to the prosecution was a companion of accused No. 1 is also to the effect that he is a poor youngster who has been wrongly accused by the police and that he had nothing to do with the incident in question. ( 3 ) THE principal submission canvassed on behalf of the appellants is that the prosecution case bristles with infirmities. In the first instance what is demonstrated to us by the learned advocates is that the incident took place on 26. 6. 1992 and that the complainant p. W. 15, Dr. Suresh Upadhyaya and sister P. W. 4, Savitha Upadhyaya came to the scene of the incident. on that very afternoon and that it is their own case that they immediately noticed that one of the ear rings was missing from the ear of the deceased and that the cupboard had been opened and the various boxes in which all the jewellery was stored was scattered around the place and that the jewellery was missing. Dr. Upadhyaya has pointed out that his wife had died of cancer a few months earlier and that part of the jewellery belonged to her, part of it belonged to his sister who is P. W. 4 and that part of it belonged to his deceased mother Shantha Bai. What is pointed out to us by the appellants' learned advocates is that despite the charge to the effect that virtually all the jewellery from the house had been looted, that for some strange reason neither an inventory nor a description of the jewellery is forthcoming from P. Ws 4 and 15 right until 24. 7. What is pointed out to us by the appellants' learned advocates is that despite the charge to the effect that virtually all the jewellery from the house had been looted, that for some strange reason neither an inventory nor a description of the jewellery is forthcoming from P. Ws 4 and 15 right until 24. 7. 1992, 28 days after the incident. What is brought to our notice is that if the gold jewellery of substantial value had been looted from the house that there would have been no difficulty or hesitation for P. W. s 4 and 15 to have recounted to the police as to what were the items of jewellery that were missing, what is their description and what is their value. It was only after a delay of 28 days that this list was made available to the police. The. submission is that this itself raises a very serious doubt as to whether at all the jewellery had been taken away when the incident took place and the learned advocates vehemently contended that if all the Jewellery from the house which was of substantial value had been stolen, that there is absolutely no plausible? reason why the list of the jewellery would not have been straight-away furnished to the police. The learned Additional State Public Prosecutor brought it to our notice that P. W. 15 has given two reasons, the tirst being that he was busy with the ceremonies relating to his mother's death and that thereafter, he had been posted as Principal of the College at sagar and that consequently, he was unable to attend to this matter. We find it difficult to accept these explanations for a variety of reasons, the principal one being that P. W. 15 and his sister P. W. 4 are educated and well placed persons who are only too familiar with the fact that valuable items of jewellery change hands very quickly, that there are even instances where jewellery is melted down and that time is of the essence in such cases. Unless a list is given to the police along with a proper description of the stolen property, it would be impossible for the police to make attempts to trace it out and in this background, it does appear to us more than strange that the inventory was not forthcoming for as long as 28 days. Unless a list is given to the police along with a proper description of the stolen property, it would be impossible for the police to make attempts to trace it out and in this background, it does appear to us more than strange that the inventory was not forthcoming for as long as 28 days. Both these witnesses have very clearly stated that the jewellery belonged to their mother, the late wife and the sister and that it was normally kept in the cupboard in the house and the jewellery being personal items, the inventory thereof could have been complied virtually within a matter of minutes. The fact that this was not done for as long as 28 days is not only a lapse but is a circumstance that attaches a high degree of suspicion to it because the question that is left hanging in the air is as to whether at all the jewellery had in fact been stolen at the time of the incident, and recovered thereafter. The so called coincidence of the inventory being given to the police on 24. 7. 1992 and P. W. 13 arresting accused No. 1 on 25. 7. 1992 from the residence of a milk vendor with two of the items of jewellery (M. Os 3 and 4) supposedly in his possession and gold bangle ( (M. O. 5) does again appear to be a little but difficult to accept. The additional reason for this is because the appellant's learned advocate has pointed out to us from the evidence of P. W. 13, PSI, Basavaraj that according to him, accused No. 1 had concealed M. Os 3, 4 and 5 in his hand and that the property was recovered when he was made to open his fist. While it is not difficult to conceal gold ear rings in one's fist, it does appear to be totally impossible to conceal a gold bangle inside a closed fist and that too in the case of a 14 year old boy. While it is not difficult to conceal gold ear rings in one's fist, it does appear to be totally impossible to conceal a gold bangle inside a closed fist and that too in the case of a 14 year old boy. Again for some strange reason, P. W. 13, Basavaraj who solemnly states that he had definite information that stolen property was changing hands and that this was why he went to the residence of P. W. 11, Devanand along with two panchas has stated that he asked the panchas to wait outside when he entered the premises and that according to him he recovered the jewellery from accused No. 1. The prosecution has not examined either of the two panchas whereas the defence has summoned Chandrashekar, who has been examined as D. W. 2 and Chandrashekar has very clearly in his defence deposed to the fact that he was not a witness to any such seizure. ( 4 ) ON the basis of this evidence, it was submitted before us on behalf of accused No. 1 that dehors the recovery of these three items of jewellery that there is nothing else to either implicate him or to connect him with the offence. It is true that P. Ws 4 and 15 have stated that accused No. 1 used to work as an assistant to a mason and that he had been employed while the construction was going. on during the years 1978 and 1984. This evidence has been attacked by the learned defence advocates, and perhaps justifiably so, because they pointed out to us that if one goes back to these years, it would mean that accused No. 1 was working as a mason's assistant at the age of one year and five years at the later point of time. P. W. 15 has also stated that accused No. 1 used to visit their house for purposes of plucking the coconuts and the prosecution has contended that this was why he was known to the deceased Shantha bai and that it was therefore, at his instance that Shantha Bai must have opened the door and allowed the assailants into the house. This last aspect of the case is nothing more than a pure conjecture because we do not have even the remotest piece of evidence to indicate that accused No. 1 was instrumental in getting Shantha Bai to open the door nor for that matter is there any evidence to indicate as to how many persons had entered the house. The fact that he was employed for the construction work appears to be hardly acceptable and even if he used to pluck coconuts that in itself is an innocuous circumstance. In totality therefore, it was submitted that the recovery evidence itself suffers from several serious infirmities and if this evidence is discarded that there is nothing else to justify the inclusion of accused No. 1 as an accused before the Court. ( 5 ) WE have very carefully reviewed and scrutinised all the evidence adduced by the prosecution against accused No. 1. The learned Additional State. Public Prosecutor vehemently submitted that the recovery evidence is good enough because P. W. 13, the P. S. I deposed to it and furthermore that there is no explanation as to how the gold jewellery which had been stolen at the time of the murder of deceased Shantha Bai on 26. 6. 1992 couid have been in the possession of accused No. 1 unless he had participated in the offence. The law admits many possibilities and we have already indicated that this is one of the cases where these is a serious doubt, as to whether at all the jewellery had been stolen on 26. 6. 1992 and in this background, one of the possibilities which the Court must take into account is that in the absence of anything to establish the presence of accused No. 1 when the offence took place that he could have come into the possession of the jewellery at a subsequent point of time. Even as far as the offence punishable under Section 411 IPC is concerned, we are not inclined so hold that this had been made out as against accused No. 1 because the infirmities that have been listed out by us above render the prosecution evidence on the point of recovery totally and completely unacceptable. We need to record in passing that P. W. 11, Devanana is supposed to be a milk vendor by profession. We need to record in passing that P. W. 11, Devanana is supposed to be a milk vendor by profession. He has quite proudly admitted that he figures as a regular witness on behalf of the police in several cases and the factor over which there is absolutely no explanation is the question as to how and under what circumstances would accused no. 1 have gone to a milk vendor to sell the gold, jewellery. As far as the remaining accused are concerned, the prosecution case is that the majority of the items of jewellery were recovered from the pawn brokers and the jewellers and it is quite natural to expect that if accused No. 1 wanted to dispose off M. Os 3, 4 and 5 that he would have also gone to any of those persons and not to the local milk vendor. The fact that the recovery is supposed to have taken place at the residence of P. W. 11 therefore creates very serious doubts in the mind of the Court as to whether at all such evidence is either credible or reliable. In our considered view, it is neither of the two. Having regard to this position, the finding recorded as against accused No. 1 by the trial Court will have to be set aside. ( 6 ) WE now come to the case of accused No. 3. Before doing that, however, we need to refer to two aspects of some significance. The first of them is to the effect that there are repeated references to one Kumar both in the voluntary statement as also in the deposition of the witnesses and indications are that this Kumar was the fourth accused who had participated in the offence. The charge sheet however lists a person by name of Shankar @ Shankaranaika as accused No. 4 and he has been shown as an absconder. While on the one hand P. W. 11, Devanand states that this Kumar was an employee of his and furthermore, there are references to the effect that this Kumar had accompanied the other accused when the jewellery was either sold or pawned; the prosecution is silent with regard to the reasons as to why Kumar was neither arrested nor traced subsequently. What compounds matters is the fact that the investigating Officer (P. W. 23) when questioned by the defence about the identity of Kumar has tried to get over it by stating that Kumar and accused No. 4, Shankar @ Shankaranaika are one and the same person. His explanation is thoroughly unacceptable and it does raise a doubt of some seriousness in the mind of the Court with regard to the calibre of the investigation in this case. ( 7 ) EVEN though accused No. 2 has died, we consider it necessary to examine the evidence led by the prosecution vis-a-vis this accused for two reasons. The first being that the majority of the items of the jewellery are alleged to have been recovered at his instance and that too from, different places such as T. Narasipur, Mysore and Vatal village apart from his residence. There is an elaborate description of various pawn brokers and jewellers to whom he has either sold or pledged the items of jewellery and a serious issue was raised by the defence with regard to all this evidence because the receipts produced before us appear to indicate that accused No. 2 had signed on Ext. P 5 (a) whereas a scrutiny of the case records indicates that at all times including when his 313 Cr. P. C. statement was recorded by the Court that he has put his thumb impression. What was also pointed out to us by the appellant's learned advocate was that the admitted status of accused No. 2 like accused Nos. 1 and 3 very clearly indicated that he was not a literate person and in this background, it was for the prosecution to have explained as to how he could have affixed his signature on Ext. P5. That aspect of the case remains a grey area. Secondly, the question was raised as to how and under what circumstances if four accused had participated in the offence, the bulk of the jewellery would be found with accused no. 2 whereas negligible amounts are supposed to have been recovered from accused Nos. 1 and 3. Though the manner of apportionment is not something that is personal, it does raise some amount of concern in the mind of the Court with regard to the correctness of the allegations. 2 whereas negligible amounts are supposed to have been recovered from accused Nos. 1 and 3. Though the manner of apportionment is not something that is personal, it does raise some amount of concern in the mind of the Court with regard to the correctness of the allegations. ( 8 ) AS far as accused No. 3 is concerned, it is the prosecution case that pursuant to a voluntary statement made by him that he led the police to the shop of P. W. 8, Padmaraj jain and that at his instance the police recovered from Padmaraj Jam, three items of jewellery M. Os 6 and 7 which are ear rings and M. O. 8 which is a ring. This recovery was made under the mahazar Ext. P 9. We have very carefully scrutinised the receipt which is Ext. P 8 and the counter foil thereof which is in the receipt book Ext P 12. What has immediately been pointed out to us is that the receipt has been made out in the name of Devendra and not in the name of accused no. 3, Raja. The explanation put forward by PW. 10, Devendra is that he had accompanied accused No. 3 to the shop of P. W. 8 for purposes of pledging the gold and P. W. 8, Padmaraj Join further states that he did not know accused No. 3 but that he knew P. W. 10, devendra and that this is the reason why the receipt lias been issued in the name of Devendra. Devendra is a mason by profession and he contends that the mysterious Kumar was nis employee and that kumar was a friend of accused No. 3, Raja. According to Devendra, accused No. 3 had asked him to advance Rs. 800/- in exchange for the jewellery and that since he did not have money, he took accused no. 3 to P. W. 8, Padmaraj Jain who was a person who used to pledge gold jewellery. According to Devendra, accused No. 3 had asked him to advance Rs. 800/- in exchange for the jewellery and that since he did not have money, he took accused no. 3 to P. W. 8, Padmaraj Jain who was a person who used to pledge gold jewellery. The whole story appears to be absolutely hollow because we do not see the propriety of accused No. 3 even assuming that ne was in possession of some jewellery, approaching the mason devundra for the purpose of pledging gold jewellery and furthermore, having regard to Devendra's status, it appears extremely doubtful as to what transactions P. W. 10 who was only a mason could have been having over the years with P. W. 8, Padmaraj Jain, who is a pawn broker by profession. Apart from this background, this is a case in which serious charges of murder and robbery are sought to be established on the basis of the recovery evidence and in our considered view, that evidence will not only have to absolutely pass the test of scrutiny but more importantly it will have to be very strictly construed. Assuming, the prosecution case with regard to the recovery is to be accepted, the highest that can be said is that the recovery can be accepted vis-a-vis Devendra because the document indicated that it was he who pledged the items and it was he who recovered it at the instance of the police and consequently, this evidence with regard to the recovery of M. Os. 6,7 and 8 cannot be used as against accused No. 3. ( 9 ) WE then come to the evidence of P. W. 9, Manjunatha who is ajeweller and it is the prosecution case that accused No. 3 led the police and the panchas to his shop and that a gold chain and a ring m. Os 9 and 10 were recovered at the instance of accused No. 3. In this case, we do not find any documentary evidence and there is not even a receipt on record. P. W. 9 has tried to get over this inconvenient situation by stating that since he is a small trader that he does not issue receipts. However, he is categorical about the fact that he had paid Rs. 9,000/- for these items of jewellery. P. W. 9 has tried to get over this inconvenient situation by stating that since he is a small trader that he does not issue receipts. However, he is categorical about the fact that he had paid Rs. 9,000/- for these items of jewellery. What is interesting as far as these two items are concerned is the fact that in respect of each recovery, the police have taken the trouble to have the recovered items weighed and valued and we have it on record. that the value of these two items as indicated by the prosecution in Ext. P. 10 is Rs. 5,000/ -. We cannot conceive of a situation whereby any trader and particularly a jeweller or a pawn broker dealing with used jewellery which is being either sold or pawned would have paid Rs. 9,000/- for the jewellery which is valued only at Rs. 5,000/ -. It is a well known fact that even in respect of items of value, when they are either sold or pawned to persons of this category that they invariably fetch only a small fraction of the real value. The fact that there is no document to indicate that it was accused No. 3 who had either pledged or sold M. Os 9 and 10 and the fact that P. W. 9 contends that he paid almost double the value of the items for them is itself sufficient to indicate that this evidence is unreliable. Even as far as Ext. P 10 is concerned, we have noticed as inherent contradiction because the first part of the mahazar indicates that the jewellery was sold for Rs. 9,000/- whereas the concluding part of that very mahazar which sets out the description and the value indicates that its value was only Rs. 5,000/ -. It is all these finer aspects of the evidence which do not seem to have been brought to the notice of the Trial'court, but in any event, after a meticulous examination of the evidence, we have no hesitation in recording that even as far as the recovery of M. Os 9 and 10 are concerned, that the prosecution evidence is unacceptable. ( 10 ) WE then come to the last head of recovery i. e. , M. Os. 11,12 and 13 which are alleged to have been recovered from the house of accused No. 3. ( 10 ) WE then come to the last head of recovery i. e. , M. Os. 11,12 and 13 which are alleged to have been recovered from the house of accused No. 3. As far as this is concerned, we only have the evidence of the Investigating Officer and we need to take note of the fact that by association with the earlier head of evidence that there does appear to be a lot of difficulty in accepting this head of recovery. Firstly, the prosecution alleges that accused No. 3 who was a poor person was in need of money and that he approached devendra for the same. It is further alleged against him that he then sold/pledged the jewellery with a pawn broker/jeweller and in this background, it appears rather inconceivable that some of the items would still have been left in the house. Even if accused No. 3 is an illiterate person, he was aware of the fact that gold jewellery is valuable. He comes from a very poor strata of society and there is no means of safe keeping in the house. The prosecution itself alleges that he is supposed to have produced the gold jewellery from an attic (Atta) and in this background, in the absence of any clinching evidence which the prosecution has failed to produce and more so in the background of the fact that we have found that every one of the so called recoveries is totally unacceptable. We find it impossible to attach any credibility to this last head of evidence. ( 11 ) AS indicated by us earlier, the charges against the accused under both heads rest totally and entirely on the recovery evidence. This evidence has been seriously attacked by the appellant's learned advocate and we have recounted the reasons why the challenge is justified. Having regard to this position, the findings recorded by the trial Court against both accused Nos. 1 and 3 which are based entirely on the recovery evidence would necessarily have to be set aside. It is obvious that a finer examination and a careful scrutiny of the documents and the contents of the mahazar and the exhibits was not undertaken and that the prosecution evidence was erroneously accepted. 1 and 3 which are based entirely on the recovery evidence would necessarily have to be set aside. It is obvious that a finer examination and a careful scrutiny of the documents and the contents of the mahazar and the exhibits was not undertaken and that the prosecution evidence was erroneously accepted. In this view of the matter, the finding that we record vis-a-vis both heads of charges, is that the prosecution has failed to establish both the heads as against accused Nos. 1 and 3. ( 12 ) IN the result, the convictions and sentences awarded by the Trial Court to accused Nos. 1 and 3 are set aside. Both the accused are acquitted of the offences with which they are charged. The accused No. 1, Krishna and the accused No. 3, Raja are both in custody and it is directed that they be set at liberty forthwith if not required in connection wifh any other offence. Both the appeals accordingly succeed and stand disposed of. --- *** --- .