K. SREEDHAR RAO, J. ( 1 ) THE appeal arise out of the judgment of conviction and sentence passed in SC 127/92 on the file of Sessions Judge, mangalore. The appellant is Accused No. 1, along with another charge- sheeted for committing offences punishable u/ss. 450, 394 and 397. I. P. C. r/w. Sec. 34,i. P. C. ( 2 ) IT is unfortunate to note that in the charge framed, without invoking the provisions of Sec. 34 of I. P. C. joint trial is held, however in the final report, the provision of sec. 34, I. P. C. is invoked. The case of the prosecution discloses that appellant is accused No. 1. In the house belonging to complainant examined as P. W. 2, there was a garage which was used by P. W. 5 for parking his car and was also training few boys in Refrigerator mechanism. Accused 1 was one such trainee under P. W. 5 visiting the house P. W. 2. On 3-12-1991 around 4-15 p. m. P. W. 2 was in her house. The Accused no. 1 along with Accused No. 2 come to the house of P. W. 2; rang the calling bell, gained entry into the house of P. W. 2 saying that accused No. 2 is interested in purchasing the old refrigerator of P. W. 2 which was offered for sale. After gaining entry, the accused requests P. W. 2 to get some water and when she was going Inside the room for getting water, she was pushed down a pillow was pressed on her face, with a view to suffocate her. P. W. 2 fell unconscious. Sometime after P. W. 1 comes, he finds the accused open the door and run away. P. W. 5 finds P. W. 2 lying unconscious. She is taken to Venlock Hospital. P. W. 2 had sustained as many as five injuries and there was one tracheal cut injury which was grievous injury. The FIR was lodged by the complainant-P. W. 1. She has implicated Accused 1 and also names the participation of another accused. After the apprehension of Accused no. 1, at his voluntary instance, the valuable gold jewelleries robbed from the house of P. W. 2 is recovered under seizure mahazar and on the information of Accused 1, accused 2 is arrested. P. W. 2 identifies Accused 2 in the hospital. After the apprehension of Accused no. 1, at his voluntary instance, the valuable gold jewelleries robbed from the house of P. W. 2 is recovered under seizure mahazar and on the information of Accused 1, accused 2 is arrested. P. W. 2 identifies Accused 2 in the hospital. ( 3 ) IN the trial, prosecution has examined 11 witnesses and marked in evidence 18 documents and 20 Material Objects. The sessions Court has acquitted Accused 2 on the ground that there is no evidence to establish his involvement and holds that the offence of robbery is not proved, however, convicts the accused/appellant for committing offences punishable u/ss. 448 and 326. I. P. C. and sentenced him to undergo R. I. for a period of six months for offences u/s. 448, i. P. C. and R. I. for a period of 4 years for an offence u/s. 326, I. P. C. Both sentences are directed to run concurrently. The detention period from 4-12-1991 to 10-4-1992 and 15-6-1998 to 18-6-1998 is directed to be set off. Aggrieved by the said judgment of conviction and sentence, the present appeal is filed. ( 4 ) AFTER carefully going through the evidence and the judgment, I find that the quality of appreciation of evidence by the sessions Judge while acquitting Accused 2 is far from satisfactory so also acquitting the appellant/accused-1 for committing offences u/ss. 394, 397, I. P. C. is founded on improper reason. May be some discrepancy may be there in the evidence of P. W. 2 in not mentioning the user of a sharp edged weapon for causing cut grievous injuries on the trachea and on the other vital parts of the body. The fact remains that by the time p. W. 1 enters, the accused ran away from the seen. P. W. 2 was lying unconscious. She is an old lady aged around 70 years. She immediately admitted to Venlock Hospital. The grievous injuries sustained are noticed by the doctors and treated, later on P. W. 2 has explained the causation of injuries. After the attack P. W. 2 became unconscious; she does not know the details of the articles robbed. In the FIR Accused No. 1 is described by his features by P. W. 1. Accused no. 1 is familiar to P. Ws. After the attack P. W. 2 became unconscious; she does not know the details of the articles robbed. In the FIR Accused No. 1 is described by his features by P. W. 1. Accused no. 1 is familiar to P. Ws. 1 and 2 as he was a trainee under P. W. 5 and visiting the house of P. W. 2. After apprehension of Accused 1, at his voluntary instance, the jewellery is recovered. The same is identified by P. W. 2. She has identified both the accused while in the hospital. Despite such pristine and clinching evidence of P. W. 2, the Court comes to the conclusion that the evidence of identification of Accused 2 is not sufficient evidence for conviction and holds that there is no sufficient corroboration to convict accused 2, further holds that there is no evidence to convict Accused 1 for an offence of robbery and causing grievous injuries during robbery. On the other hand comes to the conclusion that Accused 1 has caused the grievous injuries. For what purpose and motive the grievous injuries came to be caused, remains unexplained. On the whole, the appreciation of evidence relating to incriminating circumstances is totally erroneous and smacks the lack of basic scientific skills of appreciation. ( 5 ) IT is equally unfortunate that the State has not challenged acquittal of Accused 2 nor has challenged the acquittal of Accused 1 for offence under Sections 394 and 397, ipc. ( 6 ) BE it as it may, although the appellant was liable for conviction for higher offence under Sections 394, 397, IPC which carries statutory minimum sentence of 7 years, but the offences under Sections 394 and 396, IPC imbibe within them the offence of causing grievous injury which is distinctly made punishable under Section 326, IPC. The offence under Section 397, IPC is combination of offence of committing an offence of theft and in the course of commission of theft, causes grievous hurt to the victim. While considering the ingredients of Section 397. IPC, the trial Court upholds the prosecution case of causing grievous hurt punishable under Section 326, IPC but exculpates the accused in respect of other ingredients of robbery. While considering the ingredients of Section 397. IPC, the trial Court upholds the prosecution case of causing grievous hurt punishable under Section 326, IPC but exculpates the accused in respect of other ingredients of robbery. In other words, the offence of causing grievous hurt which forms part of an offence under Section 397, IPC is held to be proved and other requisites of offence of robbery are held not proved. The said conviction under Section 326, I. P. C. although erroneous but the ingredients of causing grievous hurt under Section 326, ipc is held to be proved and the said conviction may be improper from the stand point of the prosecution but is to the advantage of the accused in getting a lenient punishment. Therefore the conviction under section 326, IPC cannot be held to be bad in law in view of the evidence of P. Ws. 1 and 2 and the medical evidence. ( 7 ) I do not find any ground to interfere with the order. ( 8 ) THE contention of the S. P. P. that accused could be convicted under Section 397, ipc in appeal by exercise of powers under section 396, IPC is untenable against the acquittal of Accused 2 and partial acquittal of Accused-1 from the charge under Sections 394 and 397, IPC. There is no appeal preferred by the State. Therefore the order of acquittal becomes conclusive and binding even though it is erroneous. In a case where there is a charge of commission of higher offence by the accused and conviction is rendered for lesser offence and for higher offence accused is acquitted in an appeal by an accused against the conviction, the state cannot argue for reversal or modification of the order of acquittal granted in respect of such of the offence without a specific appeal in that behalf. So also on the sentence without an appeal by the State against the sentence the appellate Court cannot alter the nature and extent of sentence so as to enhance the same. ( 9 ) FOR the reasons and discussions made above, I find that there is no ground to interfere with the order of conviction for an offence under Section 326, IPC. The sentence imposed is also quite proportionate to the graven of the charge of and does not call for interference. Accordingly, the appeal is dismissed. Appeal dismissed. ( 9 ) FOR the reasons and discussions made above, I find that there is no ground to interfere with the order of conviction for an offence under Section 326, IPC. The sentence imposed is also quite proportionate to the graven of the charge of and does not call for interference. Accordingly, the appeal is dismissed. Appeal dismissed. --- *** --- .