SALDANHA, J. ( 1 ) THE two appellants before us were originally charged with having committed offences punishable under Sections 392 and 302 read with 34 IPC in S. C. No. 14/92 in the Court of the I Additional Sessions judge, Mysore. Briefly stated, the prosecution case was that a well known Medical Practitioner of the city of Mysore by the name of Dr. Chandrashekhar was residing in a house at Gopalaswamy shishuvihar, one the better residential areas of Mysore city. On the morning of 8. 8. 1991 the milk vendor who is PW. 11 Kalaiah found the outer door of the verandah open and that there was no response from the doctor and he therefore informed PW. 12 Nanaiah who in turn informed the police because the house was found locked and a foul smell was emanating. The police had the front door opened and discovered that Dr. Chandrashekhar was lying, dead in the bed room under one of the beds and that many of the items particularly from the cup-boards where found scattered. On a closer examination it was discovered that there were apparent marks of strangulation. The brother of the deceased was contacted and he in turn contacted the wife of Dr. Chandrashekar who was in America. The doctor and his wife had spent about four months in America and Dr. Chandrashekhar had come back alone approximately on 4. 4. 1991 and was the only occupant of the house. It is relevant for us to mention here that the two dogs belonging to Dr. Chandrashekhar were found locked in the garage/toilet, there being some slight ambiguity with regard to which of the rooms they were locked in mrs. Chandrashekhar who is PW. 18 states that on receiving intimation she immediately returned to Mysore on 10. 8. 1991. The record indicates that on 21. 8. 1991 she submitted, a list of items missing from the house which essentially consisted of ornaments, silver items, a tape recorder, a camera and four watches. Thereafter, according to the investigating officer the police received information around 25. 9. 1991 that accused No. 1 who was a servant in a hotel was supposed to have been spending money very lavishly and the police arrested accused No. 1 at Bhyrige village at H. D, Kote Taluk which is about 45 Kms. from Mysore and interrogated him. Thereafter, according to the investigating officer the police received information around 25. 9. 1991 that accused No. 1 who was a servant in a hotel was supposed to have been spending money very lavishly and the police arrested accused No. 1 at Bhyrige village at H. D, Kote Taluk which is about 45 Kms. from Mysore and interrogated him. The prosecution alleges that accused No. 1 made a voluntary statement pursuant to which he led the police to four persons Pws. 5, 6, 8 and 9 and that the items of property which we shall subsequently describe are alleged to have been recovered at the instance of accused No. 1 trom these persons. Accused No. 1 is also supposed to have led the police to his house on the same day from where they recovered certain original pawn tickets and a platinum ring M. O. 44 under Ex. P 37. On the same day accused No. 2 was arrested in the afternoon and it is the prosecution case that accused No. 2 maae a voluntary statement pursuant to which he led the police to the Sujatha Bar where he was normally employed and that he took the police to a room where the employees used to keep their belongings. Accused no. 2 is alleged to have pointed out a brown coloured suit case and opened the same and produced certain articles being essentially a sony Taperecorder, a camera bag containing a camera etc. It is further alleged that after this, accused No. 2 led the police to an open place where there as parthenium grass growing and that accused No. 2 is supposed to have searched in the grass and produced a white cotton rope of the length of about 65" which was heavily discoloured and smeared with mud. The prosecution, on the basis of the recovery evidence alone sought to contend that accused no. 1 and accused No. 2 in furtherance of their common intention gained entry into Dr. Chandrashekhar's house and that they had strangulated him with the rope that had been recovered and that they thereafter looted the place and made away with valuable property worth about Rs. 89,890/ -. We need to record here that there is no dispute with regard to the fact that Dr. Chandrashekar died a homicidal death in so far as the medical evidence establishes this fact. 89,890/ -. We need to record here that there is no dispute with regard to the fact that Dr. Chandrashekar died a homicidal death in so far as the medical evidence establishes this fact. We need to mention in passing that a question was put to the doctor when the rope MO. 38 was shown to him and the doctor did opine that the strangulation could have been caused by using such a rope. The learned trial Judge after evaluating all the evidence on record came to the conclusion that the recovery evidence is not good enough for acceptance and that consequently, none of the charges were established and acquitted the accused. The state, through the present appeal has assailed the correctness of this acquittal. ( 2 ) AT the hearing of the appeal, we have heard the learned S. P. P. Mr. Mohan Shanthangoudar as also the learned defence counsel smt. Anasuya. We are conscious of the fact that this is an appeal against acquittal and that therefore, the first stage of the hearing must necessarily proceed through an examination of the judgment of the trial Court as it is well settled law that if the judgment is correct and sustainable that no interference is called for merely because another view is possible. In fact, Smt. Anasuya very vehemently submitted that the only evidence in this case consists of the recovery evidence, that this has been virtually dissected and evaluated by the learned trial Judge very carefully and that in this background, this Court ought not to interfere with the findings in so far as they are perfectly logical and correct. The learned S. P. P. pointed out to us that there are flaws in the reasoning that the learned trial Judge has been too harsh with regard to his evaluation of the calibre of the evidence and that this bias appears to have manifested itself in his totally rejecting the recovery evidence. On a careful perusal of the reasoning and the conclusions, we did come to the conclusion that this cannot be upheld as far as one head of charge is concerned even though the reasoning would perhaps be good enough as far as the main offence was concerned. On a careful perusal of the reasoning and the conclusions, we did come to the conclusion that this cannot be upheld as far as one head of charge is concerned even though the reasoning would perhaps be good enough as far as the main offence was concerned. ( 3 ) AS indicated by us earlier, the evidence in this case narrows down to the recoveries which are alleged to have been done at the instance of the accused. Accused No. 1 and accused No. 2 were both employees in eating houses or hotels. It has not been established that they were in any manner connected with Dr. Chandrashekhar's family and for all intentions and purposes, they will have to be recorded as total outsiders. The defence has brought on record the fact that Dr. Chandrashekhar was also connected with an educational institution by the name of Sharada Vilas Education Society in so far as he was the Hon'rary Secretary thereof. This institution is one of the finest educational institutions in the city of Mysore and mrs. Chandrashekhar who is PW. 18 has admitted that the doctor was not satisfied with some of the happenings in that institution and that he had even taken strong corrective action which was resented by certain persons. She has also admitted that ostensibly because of these steps that the doctor had been attacked by some persons with a matchu in the year 1989 and that he was hospitalised due to the injury. The defence theory is that in connection with some such affair of the society that the doctor had incurred either the wrath or displeasure of some persons who were responsible for his murder. The defence contends that when the police were not able to trace the real culprits because there were no sufficient clues that the accused persons were virtually picked up by the police and that the recovery of property has been foisted on them and that the documents in relation thereto are all fabrications. Mrs. Chandrashekhar has clarified that the doctor had resigned from the hon'rary Secretaryship of that society prior to their leaving for America but the defence theory is that because of various issues and steps that had been taken prior to his departure that the persons who were at the receiving end ultimately decided to do away with him. Mrs. Chandrashekhar has clarified that the doctor had resigned from the hon'rary Secretaryship of that society prior to their leaving for America but the defence theory is that because of various issues and steps that had been taken prior to his departure that the persons who were at the receiving end ultimately decided to do away with him. Smt. Anasuya goes a step further and submits that from the inventory of the house it is clear that the documents from the cupboard were found scattered at the surrounding place and she submits that this was the real reason for the murder and that since the police could not trace out those culprits that they have utilised various items of property of considerable value for purposes of building up a false case against the accused. The defence of the accused is one of total denial and we refer to this aspect of the matter because in a case where the prosecution alleges that the property has been recovered from the accused or at the instance of the accused, one of the requirements of law is that the accused must put forward some satisfactory explanation for the possession and if this is not forthcoming then an adverse inference follows. ( 4 ) THE learned S. P. P. has taken us in detail through the evidence of recoveries both as far as accused No. 1 and accused No. 2 are concerned. The evidence of PW. 28 who is the investigating officer indicates that after his arrest on 25. 9. 1991 accused No. 1 made a voluntary statement to the effect that he would point out to the police the place where he had dealt with or kept certain property. PW. 28 deposed to the effect that accused No. 1 led the police and the panchas to the shop of PW. 6 Prakash who is a pawn broker. According to the police, the accused asked PW. 6 to produce the items of property that had been found with him and that PW. 6 produced before the police items consisting of Mos. 5 to 25 and copies of pawn tickets Exs. 13, 14 and 36a and 36e. The police seized these items under the mahazar Ex. P-7. We refrain from recounting the entire list of what these items consisted of because of pancha PW. 24 has referred to them in detail. 6 produced before the police items consisting of Mos. 5 to 25 and copies of pawn tickets Exs. 13, 14 and 36a and 36e. The police seized these items under the mahazar Ex. P-7. We refrain from recounting the entire list of what these items consisted of because of pancha PW. 24 has referred to them in detail. They have been described itemwise in the evidence and in the list of material objects and we need to only record that they consisted of items of gold and silver jewellery and certain other silver items. This procedure is supposed to have been undertaken between 10 AM and 11 AM, on morning of 25. 9. 1991. ( 5 ) THEREAFTER, accused No. 1 led the police and the panchas to the shop of PW. 8 Babu who is supposed to be a watch repairer and after following the same procedure the police recovered two watches MOs. 39 and 40 which were seized under a mahazar ex. P. 20 between 11. 30 AM, and 11. 45 AM, Next, the accused No. 1 led the police and the panchas to the shop of PW. 5 Ramesh Chopra who is supposed to be another pawn broker and after following the same procedure the police seized two watches MOs. 3 and 4 under a mahazar Ex. P. 5 between 12. 15 and 1 PM on that day. Thereafter, the accused took the police and the panchas to his house and it is alleged that he produced from a cup-board one platinum ring Mo. 44 and pawn tickets Exs. P-8, P-9, P-10, P-11 and P-12. These pawn tickets were originals of the once pertaining to the recoveries that were made under Ex. P-7. The learned S. P. P. submitted that in the first instance we have the evidence of the investigating officer pw. 28 that we have no record the voluntary statement of accused no. 1 and that in respect of the four heads of recoveries, not only do we have on record the inventories and the mahazar but more importantly that the pancha in this case has given detailed evidence, described the various recoveries and the items and that he has also fully supported the prosecution case. The submission is that this evidence fulty and conclusively establishes the recoveries of all these items and he thereafter took us to the evidence of Mrs. Chandrashekhar PW. 18. The submission is that this evidence fulty and conclusively establishes the recoveries of all these items and he thereafter took us to the evidence of Mrs. Chandrashekhar PW. 18. She has in turn identified every single one of these items of jewellery belonging to her as also the silver items that belonged to her and her husband and according to her all the hems of property were kept in the cub-board of the house on the date of incident. With regard to the other items namely the. four watches, she has not only identified them but she has also indicated as to who had presented them and similarly, she has identified the tape recorder and the camera and also indicated that these were presented to her husband by her niece. The learned S. P. P. submitted that despite detailed cross-examination, the defence has not been able to elicit anything to discredit Mrs. Chandrashekhar's evidence whereby she has clearly identified every item of property that has been recovered and furthermore she has clearly deposed to the effect that all those properties were in the house on the date of the incident. His submission is that there is no ground on which the court can disbelieve or reject or call into question the recovery evidence and he concludes that once the prosecution has established that the property belonging to Dr. Chandrashekhar and his wife has been recovered at the instance of the accused that the irresistable conclusion is that accused No. 1 at whose instance the property was recovered is both a murderer and a robber and that Sections 302 and 392 IPC. would apply in so far as there is no explanation as to how the accused No. 1 could have come in possession of all these properties belonging to the deceased and his wife. ( 6 ) WE need to mention here that the defence has seriously attacked the credibility of this head of evidence. One suggestion put forward on behalf of the defence was that there is on record a letter ex. P-45 from the State Bank of India which indicates that mrs. Chandrashekhar had operated the bank locker on 12. 8. 1991. ( 6 ) WE need to mention here that the defence has seriously attacked the credibility of this head of evidence. One suggestion put forward on behalf of the defence was that there is on record a letter ex. P-45 from the State Bank of India which indicates that mrs. Chandrashekhar had operated the bank locker on 12. 8. 1991. It is contended that all these items are items of value and that since the couple was going to a foreign country for seven months that the most normal and natural course of action would have been to put all these items into the bank even though some other people were asked to look after the house in their absence. What is pointed out is that from the bank letter it is very clear that even dr. Chandrashekhar returned in the month of April that the locker was only operated by Mrs. Chandrashekhar on 12. 8. 1991 and the submission is that since the police appeared to be clueless with regard to the assailants that these identifiable items of value were taken out from the locker and that the police have simulated the so called recovery by using the familiar channels of pawn brokers. We have tested this particular aspect and we find that it would not be possible to attach any credibility to it because first of all mrs. Chandrashekhar has denied in her cross-examination the suggestion that these items were kept in the locker. The fact that she operated the locker on 12. 8. 1991 does not take the defence anywhere because once he has denied that these items were at any time in the locker, why she operated the locker has nothing to do with either the defence or the prosecution. More importantly however, on a perusal of the various documents which are substantiated by the various duplicates particularly receipt books, what the prosecution has pointed out is that the bulk of the items namely the jewellery and the silver items were pledged with the pawn brokers on different dates but this was all much prior to 25. 9. 1991 which was when the accused were arrested. Under these circumstances, it would be too far fetched to allege that the police had taken the items from Mrs. Chandrashekhar and thereafter fabricated the entire recovery evidence since there is nothing to support this theory. 9. 1991 which was when the accused were arrested. Under these circumstances, it would be too far fetched to allege that the police had taken the items from Mrs. Chandrashekhar and thereafter fabricated the entire recovery evidence since there is nothing to support this theory. ( 7 ) THE second serious head of criticism is that undoubtedly Mrs. Chandra shekhar returned to Mysore on the morning of 10. 8. 1991 on her own admission and the house had been handed over back to the brother of the deceased even prior to her returning from america. It is pointed out to us that her first reaction would have been to ascertain as to whether there had been any loss of property from the house and if so what were the items. Secondly, smt. Anasuya points out to us that a murder has taken place, items were found scattered in the house with the cup-board open and the police would have been waiting for Mrs. Chandrashekhar's return in order to find out as to what exactly was missing from the premises. It is contended in this background that Mrs. Chandrashekhar has only submitted the inventory of missing items eleven days after her return i. e. on 21. 8. 1991 and that this long delay is fatal to the prosecution. There is nothing on record to indicate as to why Mrs. Chandrashekhar took eleven days to furnish the list of missing items to the police but the further difficulty arises in so far as before she can be faulted for having taken this length of time it would have been necessary to confront the witness and squarely ask her why it took her as long as eleven days to compile a simple list of missing items and hand them over to the police. We do concede that this is a long period of time but again, the defence not having attacked the witness on this issue of some importance, and virtually having kept silent with regard to this aspect cannot really seek to capitalise on it at the appellate stage. Had there not been evidence of recovery which is sufficiently reliable, we ourselves would have attached a very high degree of importance to this delay but in the facts and circumstances of the case we are not obliged to do so. Had there not been evidence of recovery which is sufficiently reliable, we ourselves would have attached a very high degree of importance to this delay but in the facts and circumstances of the case we are not obliged to do so. ( 8 ) THERE is another major head of challenge with regard to the four recoveries that are attributed to accused No. 1 and it was pointed out with some degree of vehemence on behalf of the defence that one feature which is extremely unusual in the case of all these three recoveries is that at the point of time when the police and the panchas had taken accused No. 1 to these three places, the prosecution contends that accused No. 1 is supposed to have asked for the property that had been pledged or entrusted and that the witness thereupon produced the same. What is pointed out is that the bulk of the property has been recovered from PW. 6 Prakash and the two witnesses respectively from Pw. 5 and Pw. 8 and that some amount of time had elapsed between the entrustment and the retrieval. Under normal circumstances, it is pointed out to us that the party would have had to produce the receipt or the pawn ticket and on that basis the shop keeper would have been able to trace. the items and produce them. Admittedly in all these three cases the receipts or pawn tickets were not with the police or with accused no. 1 when they went to retrieve the property and the prosecution alleges that after these three seizures that they had proceeded to the residence of accused No. 1 when he produced the original pawn tickets. In this background, what is submitted is that a serious doubt arises with regard to the correctness or genuineness of the entire operation in so far as it is difficult to believe a shop keeper who is dealing with many customers over a period of time and is concerned with many items of property or watches would be able to pick out just the one that the caused is alleged to have entrusted to him without there being the receipt indicating the date and the description of the articles It was therefore submitted that this ground itself is enough to totally reject this head of evidence. The learned S. P. P. has contended that very often parties misplace documents and that when they go to retrieve the items that they are able to describe the same or that the shop keeper is able to remember and trace them out and that obviously, this was what happened. The explanation is relatively weak but again, the handicap that comes up is that this particular aspect of the case with which the investigating officer PW. 28 should have been confronted or for that matter PW. 7 who is the panch witness should have been questioned has unfortunately not been done. We do concede that this is a finer aspect of appraisal but the difficulty atises in so far as if there is absolutely no challenge to that head of evidence with regard to this aspect then it is really not permissible to canvass the argument at the appellate stage without having dealt with it at the most important time i. e. when the witness was being examined. The prosecution has contended that on being asked, the three witnesses not only produced the property but that thev even produced the duplicate receipts from their records and that the police seized the property and made out a mahazar. Having regard to the state of the record therefore, we find that it was not permissible to uphold this particular objection. ( 9 ) AGAIN, since we have done a very careful appraisal even to the extent of examining every document and the sequence, what is next pointed out to us is that on 25. 9. 1991 the police seems to have coveted an abnormally large amount of investigation and work because it is their contention that everything from sending the search the party to apprehend accused No. 1 who was at a village approximately 45 Kms. away to bringing him to Mysore, interrogating him, going to as many as four places, making out four recovery mahazars have all been completed in less than half a day. The speed was undoubtedly alarming and we do find that the timings given in the four mahazars are almost like clockwork one following the other and it was submitted on behalf of the defence that this is really too good to be true and that this is the surest indication that this entire head of evidence is a fabrication. The speed was undoubtedly alarming and we do find that the timings given in the four mahazars are almost like clockwork one following the other and it was submitted on behalf of the defence that this is really too good to be true and that this is the surest indication that this entire head of evidence is a fabrication. We do find that the timings are too close to each other and that a remarkably high amount of activity seems to have been compressed within a very limited time period which is very uncharacteristic of the police and investigating authorities. The criticism would always have to be based on something that is on record or something that emerges from it. Had the defence elicited in cross-examination particularly of the investigating officer that is was physically impossible for all this to have been completed within the period of time by specifically putting to the officer the distance involved in each case, the amount of time that each of these inventories would have taken, the interse distances between the shops etc. We would have had a clear cut record on the basis of which the submission could have been considered. We find that even though the cross-examination has been done in detail and even though the case has been very well conducted on behalf of the defence that in respect of these specific heads, there is absolutely no material on the basis of which the court can hold that the time sequence is impossible. ( 10 ) EVEN with regard to the last of the recoveries wherein it is alleged that the ring which is an item of some value and the original documents are alleged to have been recovered from the residence of accused No. 1 who is supposed to have taken them out from a cupboard, what is pointed out is that it was a matter of sheer common sense for the investigating officer to have started with this point first and then gone to the other places on the basis of what the documents disclosed rather than to have followed the reverse order. It is true from the record that the reverse order has been followed but again, the simple question to the investigating officer has not been put in order to elicitate from him as to how such a procedure could be defended or justified. It is true from the record that the reverse order has been followed but again, the simple question to the investigating officer has not been put in order to elicitate from him as to how such a procedure could be defended or justified. In the absence again of such a challenge, we are only left with one more recovery panchanama which seeks to indicate that the ring and the documents in question were recovered form the residence of accused No. 1. In totality therefore, despite the fact that the defence has seriously assailed the head of recovery vis. a. vis, accused No. 1, we find that there are no blemishes or infirmities that are either grave enough or serious enough ro cast the level of doubt that would justify the Court rejecting this entire head of evidence. The learned S. P. P. is therefore justified in his argument that the recovery evidence so far as accused No. 1 is concerned would have to be accepted. ( 11 ) COMING to the case of accused No. 2, it is the same pancha PW. 7 Ravindranath who deposes to the effect that various items namely Mos. 26 to 37 are alleged to have been recovered form the room in Sujatha Bar where the accused along with the workers used to kept their belongings. To start with, Smt. Anasuya demonstrated to us that there is no dispute about the fact that this is a kind of store-room where different persons keep their belongings and that the area is freely accessible to all those persons. In other words, her submission was that the room in question was not under the exclusive possession of accused No. 2 which is correct. Secondly what was brought to our notice is that PW. 7 who does depose generally Jo the effect that accused No. 2 produced the items of property from a brown suitcase which he opened; upon the crucial aspect namely whether the brown suitcase was locked or whether it was just closed has not been specifically stated by PW. 7. This is also true. All that the learned S. P. P. pointed out to us was that the panchanama Ex. P. 18 does contain the recital to the effect that accused No. 2 had the key with him and that he opened the suitcase when the Key that was in his possession. 7. This is also true. All that the learned S. P. P. pointed out to us was that the panchanama Ex. P. 18 does contain the recital to the effect that accused No. 2 had the key with him and that he opened the suitcase when the Key that was in his possession. The items that are alleged to have been recovered from him consisted of a Sony taperecorder, a Canon camera with its cover and a few silver items. As far as this recovery is concerned, the strongest ground on which it is assailed is thai the pancha PW. 7 admits in cross-examination that the inventory in question was written at the police station and not at that spct. Counts have invariably laid down that in cases of recovery it is absolutely essential for the police to make out the recovery memo or ihe panchanama at the spot itself which is th virtually accepted rule and therefore, it was submitted that on this ground howsoever technical it may be that the Court must totally reject this evidence along with the second ground namely that the place and the manner in which the recovery is alleged to have been made would not be sufficient to conclusively establish that nobody other than accused No. 2 could have had access to the suitcase. In this regard, while dealing with the second head of challenge what we need to point out is that it was not from some general open area that accused No. 2 had produced the property such as for. instance a cupboard or a store-room but the prosecution case is that these items were produced by him from a suitcase that belong to him. Also, it emerges that the suitcase was locked and that he had the key to it. ( 12 ) IN this background, the question arises as to whether the recovery evidence vis. a. vis. accused No. 2 should be accepted by the Court. We will have to uphold the position that if there is one very serious infirmity even it it is a procedural one with regard to this head of evidence that the benefit would have to go to the accused. Again, when we come to the immediately next recovery which is covered by the panchanama Ex. We will have to uphold the position that if there is one very serious infirmity even it it is a procedural one with regard to this head of evidence that the benefit would have to go to the accused. Again, when we come to the immediately next recovery which is covered by the panchanama Ex. P. 19 wherein the prosecution alleges that a cotton rope measuring about 65" was produced by accused No. 2 from an open place where some parthenium grass was growing, the implications of this recovery according to the learned S. P. P. are serious because the doctor has opined that strangulation of the deceased could have been done with a rope of this type. We shall deal with the latter aspect later but we do find that as far as this recovery is concerned, again apart from the fact that some piece of rope is supposed to have still been lying in the bushes one-and -half months after the incident, that if the defence contention with regard to the panchanama Ex. P. 18 is upheld, that the same position would have to obtain as far as Ex. P-19 is concerned, quite apart from the fact that if this inventory was written at the police station that the rule of caution would require us not to place reliance on it. We also find that the mere recovery of some piece of cotton rope in the absence of anything else to connect the accused with the offence of murder would not avail the prosecution at all. ( 13 ) ONE aspect of the case which stands out and which again was emphasised by the defence was the fact that despite an elaborate investigation into various aspects including the movement of the accused etc. that it has not been brought on record as to what was the interconnection between accused Nos. 1 and 2. They were both working at different places and we only find some passing reference to the fact that they seem to have known each other or they they had met casually. that it has not been brought on record as to what was the interconnection between accused Nos. 1 and 2. They were both working at different places and we only find some passing reference to the fact that they seem to have known each other or they they had met casually. The prosecution has levelled a very serious charge against them that they are alleged to have committed grave offences in pursuance of their common intention, and this would in law require association of a close order, which brings them within the legal definition of meeting of minds and we donot find any evidence whatsoever on record to justify any such close or collusive action. We refer to this aspect of the case because while dealing with accused No. 2 we need to record that apart from the one head of recovery evidence relating to the suitcase and the rope that there is absolutely nothing else that the prosecution has been able to point out against him. If that head of evidence is held to be unacceptable, then nothing really survives as against accused No. 2. ( 14 ) THE next question that we need to address ourselves to is as to what is the legal consequence of the recovery evidence having been accepted as far as accused No. 1 is concerned. We have already indicated that the property in question has been clearly and conclusively identified by the wife PW. 18 who has stated that this property not only belonged to her and her husband but that it was in the house at the time when the incident took place. In this background the learned S. P. P. sought to place reliance on the well settled position in law that applies to cases of this type by relying on the decision of the Supreme Court reported in 1995 (2) Crimes page 188 wherein the Supreme Court enunciated the legal position that emerges on the basis of Section 114a of the Evidence Act held that the presumption would arise that if the accused was found with property belonging to the deceased soon after the murder that the legitimate inference would arise in the absence of any satisfactory explanation that the accused was guilty of both murder and robbery. This is the consistent view of the Courts particularly of the Supreme court and the learned S. P. P. therefore submitted that since accused no. 1 has not explained how and under what circumstances this property came to him that the presumption would arise. ( 15 ) ON the other hand, Smt. Anasuya has brought to our notice certain very individual and peculiar and strange facts that are special to the present case whereas the medical evidence and the other evidence which the prosecution has led would support the theory that the deceased was murdered at about 10 P. M on the night of 6. 8. 1991. The incident came to light for the first time only on the morning of 8. 8. 1991 which is a good one-and- half days thereafter. Again, Smt. Anasuya pointed to us that there is a tell tale circumstance of immense importance in this case namely that the first person who noticed that something was wrong was PW. 11 kalaiah who is the milkman whose evidence is clearly to the effect that what he found strange was that the outer door was left open. We find in this case that undoubtedly the inner door and the rear door was subsequently found locked by the police but there is not even the slightest indication of what was the position between the night of 6. 8. 91 and the morning of 8. 8. 91, whether the assailants who attacked the doctor bolted away leaving the doors open or whether they took the precaution to close them is not known. Again, whether the accused responsible for the murder and removal of the property was one and the same i. e. interconnected is not established. The defence also brought to our notice another fact namely thai even though the finger print expert was called, there is no evidence to indicate that any finger prints were lifted or that these finger prints incriminated the present accused in any manner. The defence also brought to our notice another fact namely thai even though the finger print expert was called, there is no evidence to indicate that any finger prints were lifted or that these finger prints incriminated the present accused in any manner. Piecing together all this evidence, we do find that because of this time lag of about 36 hours and the fact that there is no indication as to what was the condition of the premises immediately after the incident had taken place coupled with the fact that the prosecution in this case has been unable to connect the accused even remotely with any act of violence, would make it impossible for us to uphold the charge under section 302 IPC, or for that matter the charge under Section 392 ipc. because again, some degree of force is essential to sustain the latter charge. Going strictly by the record, all that this Court can hold is that the accused No. 1 who was ultimately found in possession of the property could only be convicted of the offence punishable under Section 380 IPC. In this regard, Smt. Anasuya has relied on a decision of the Supreme Court reported in AIR 1956 SC page 54 wherein the Apex Court was considering a case where the facts were some what similar and the Court held that it is only with regard to the property offence that the accused could be convicted. We are guided by the reasoning in that decision while upholding the view that on the facts of the present case a conviction under Section 380 alone would be sustainable. ( 16 ) HAVING carefully considered the facts of the case, the value of the property involved and the gravity of the offence, we direct that the order of acquittal as far as accused No. 1 is concerned for the offences under Section 302 IPC, and Section 392 IPC. shall stand confirmed but that he shall be liable to be convicted for the offence punishable under Section 380 IPC. for which we award him a sentence of three years rigorous imprisonment. It is pointed out to us that both the accused have been in custody right from the date of their arrest until the disposal of the case by the trial Court and once again, after the admission of the present appeal up to the present point of time. for which we award him a sentence of three years rigorous imprisonment. It is pointed out to us that both the accused have been in custody right from the date of their arrest until the disposal of the case by the trial Court and once again, after the admission of the present appeal up to the present point of time. As far as accused No. 2 is concerned, the order of acquittal passed in his favour stands confirmed. As far as accused No. 1 is concerned, since he has undergone sentence for a period far in excess of the sentence awarded to him by this Court, he shall also be entitled to be released from custody. Even though the appeal partially succeeds, for the aforesaid reasons, it is directed that both accused No. 1 and accused No. 2 shall be set at liberty forthwith if not required in connection with any other offence. The appeal which partially succeeds to stand disposed of. --- *** --- .