JUDGMENT : Mohan M. Shantanagoudar, J. The judgment and order dated 22nd June, 2012 passed by the Principal Sessions Judge, Kolar in Sessions Case No. 124 of 2009 acquitting accused nos.1 and 2 of the offences punishable under Sections 302 and 392 read with Section 34 of the Indian Penal Code, 1860 and sentencing accused no.1 for the offence punishable under Section 379 of IPC is the subject-matter of these two appeals. Crl. A. No. 1073 of 2012 is filed by the State questioning the judgment and order of acquittal passed by the Trial Court acquitting the accused for the offences punishable under Sections 302 and 392 read with Section 34 of IPC and convicting accused 1 for the offence punishable under Section 379 of IPC, whereas Cri. A. No. 779 of 2012 is filed by accused no.1-appellant questioning the judgment and order of sentence convicting him for the offence punishable under Section 379 of IPC. 2. The case of the prosecution in brief is that deceased Narayanamma was aged more than 70 years; the complainant is the husband of deceased 11 Narayanamma and their marriage was performed about 58 years prior to the date of the incident; the complainant and deceased Narayanamma had two sons viz., Nanjundappa and Srinivasa Gowda. Both sons are married and are 11 having children. The complainant and deceased Narayanamma were residing with their elder son at Kembodi Village, whereas their younger son 11 is residing at Kolar and is working as a teacher; at 11.30 a.m. on 22-2-2009, Narayanamma went out of her house after having lunch and she did not II return; the complainant waited till evening of the said day; thereafter, the complainant and other villagers searched for Narayanamma, but they were notable to trace her; at about 8.30 a.m. on 25-2-2009, one Venkateshappa, S/o. Late Muniyappa informed that the dead body of Narayanamma is lying in the eucalyptus grove of Krishnappa of Kembodi; the complainant and his family members went and saw the dead body. The right hand and half portion of the left hand were missing; deceased used to wear Ole and Jumki (gold ornaments worn by the deceased); however, mangalya chain which the deceased used to wear regularly (measuring about 70 gms.) was missing ¦ from her person; the complainant suspected that somebody murdered Narayanamma and robbed Mangalya chain from her person. Based on these allegations, Cri. Based on these allegations, Cri. No. 54 of 2009 came to be registered in Kolar Rural Police Station by Sub-Inspector of Police-P. W. 20; FIR as per Ex. P. 19 was sent to the jurisdictional Court. After completion of investigation, P.W. 17-Inspector of Police laid the charge-sheet. 3. Sri Vijay Kumar Majage, learned Additional State Public Prosecutor appearing for respondent-State by taking us through the material on record submits that the Court below has erred in acquitting the accused of the offences punishable under Sections 302 and 392 of IPC and convicting accused no. 1 for the offence punishable under Section 379 of IPC; the case rests on the circumstantial evidence; all the circumstances relied upon by the prosecution are proved, more particularly, the circumstance of recovery of gold ornaments at the instance of accused no. 1; since no proper explanation is forthcoming with regard to possession of the gold ornaments belonging to the deceased by accused no. 1, the Trial Court ought to have convicted the accused for the offences with which the accused are charged. 4. Per contra, Sri M.R. Nanjunda Gowda, learned Advocate appearing on behalf of accused no.1-appellant in Cri. A. No. 779 of 2012 argued that though the Trial Court is justified in acquitting both the accused of the offences with which they were charged, it has really erred in convicting accused no.1 for the offence punishable under Section 379 of IPC. He submits that the circumstance of recovery against accused no.1 is not at all proved by the prosecution beyond reasonable doubt. 5. There are no eye-witnesses to the incident in question. The case rests on circumstantial evidence. The circumstances relied upon by the prosecution are as under: a. Both the accused were seen with the deceased just prior to the incident by P.Ws. 6 and 7; b. Extra-judicial confession made by accused no.1 before P.W. 8 after one month of the incident; c. Recovery of M.O.1 at the instance of accused no.1; M.O.1 is a gold thread (gold Mangalya laxmi coin together measuring 5 gms.). Recovery was made under panchanama-Ex. P. 4 in the presence of P.Ws. 7 and 13 (mahazar witnesses). M.O.1 was identified by P.Ws. 1 and 2 as that of the deceased. Recovery was made under panchanama-Ex. P. 4 in the presence of P.Ws. 7 and 13 (mahazar witnesses). M.O.1 was identified by P.Ws. 1 and 2 as that of the deceased. d. Recovery of gold ingot (M.O. 9) from the shop of P.W. 5 (pawn broker) who has deposed that P.W. 12 had given him the gold chain and he had converted the same into a gold ingot; e. Recovery of veil (M.O. 11) under panchanama-Ex. P. 9. P.W. 16 is the witness for seizure mahazar-Ex. P. 9. 6. Before proceeding further, it would be relevant to note the versions of each of the witnesses deposed by them before the Court. P.W. 1 is the husband of the deceased. He has deposed that the deceased had left home at about 11.00 a.m. on 22-2-2009; himself and others in the village searched for the deceased, but they did not get any clue till 25-2-2009; he has deposed that Mangalya chain was missing from the body of his wife/deceased; he lodged the complaint as per Ex. P. 1. P.W. 2 is the daughter-in-law of the deceased and the complainant. Her evidence is also on par with the evidence of P.W. 1. P.W. 3 is the villager and a distant relative of P.W. 1. He has deposed that the dead body was lying in the eucalyptus grove of Krishnappa. He has also deposed that the dead body of the deceased was identified by P.W. 1 and his family members. P.W. 4 is the son of the deceased. His evidence is similar to the evidence of P.Ws. 1 and 2. P.W. 5 is the owner of the jewellery shop. He has deposed that Mangalya chain was purchased by him from P.W. 12 of Pattan Village. He melted the mangalya chain and prepared a gold ingot marked as M.O. 9. He is also witness to the seizure mahazar under which the gold ingot was seized by the police. He identified the gold ingot M.O. 9 given by P.W. 12. P.W. 6 is the villager and was known to the accused and the deceased. He had seen accused no.1 and 2 with the deceased in the land of Krishnappa and they were eating beetle nut at 12.30 noon on 22-2-2009; he disclosed about the last seen circumstance before the villagers on 15-8-2009. P.W. 7 is another villager. P.W. 6 is the villager and was known to the accused and the deceased. He had seen accused no.1 and 2 with the deceased in the land of Krishnappa and they were eating beetle nut at 12.30 noon on 22-2-2009; he disclosed about the last seen circumstance before the villagers on 15-8-2009. P.W. 7 is another villager. He met P.W. 6 on 22-2-2009 at 12 noon; he was close friend of P.W. 6; he also saw the accused with the deceased sitting on the bund in the land of Krishnappa and eating beetle nut. He is also witness for seizure mahazar-Ex. P. 4. P.W. 8 is a villager known to the accused as well as the deceased. According to him, accused no.1 had disclosed about the illicit relationship with accused no.2; that accused no.1 made extrajudicial confession before him about killing of the deceased by him and accused no.2. P.W. 9 has deposed that accused no.1 had purchased 10 sheeps for Rs. 22,000/-. P.W. 10 has deposed that accused no.1 purchased 10 sheeps from him at the rate of Rs. 1,500/- each. P.W. 11 has seen the dead body on 25-2-2009. P.W. 12 is the brother-in-law of accused no.2. He has turned hostile to the case of the prosecution. P.W. 13 is the witness for seizure mahazar-Ex. P. 4 under which M.O. 1 was seized from the house of accused no.1. He identified the photographs as Exs. P. 6 and P. 7. P.W. 14 is the witness for seizure mahazar-Ex. P. 3, under which gold ingot (M.O. 9) was seized by the police at the instance of P.W. 12. P.W. 15 is the witness for inquest mahazar-Ex. P. 8. P.W. 16 is the witness for seizure mahazar-Ex. P. 9 under which, veil-M.O. 11 used for commission of offence was used at the instance of accused no.2. He has also identified photograph-Ex. P. 10. P.W. 17 is Circle Inspector of Police. He completed the investigation and laid the charge-sheet. P.W. 18 is the Doctor. He conducted the autopsy of the dead body. The autopsy report is at Ex. P. 15. He has given his opinion after seeing the veil as per Ex. P. 16. P.W. 19 is another Inspector of Police. He conducted part of the investigation. P.W. 20 is Sub-Inspector of Police. He received the complaint as per Ex. He conducted the autopsy of the dead body. The autopsy report is at Ex. P. 15. He has given his opinion after seeing the veil as per Ex. P. 16. P.W. 19 is another Inspector of Police. He conducted part of the investigation. P.W. 20 is Sub-Inspector of Police. He received the complaint as per Ex. P. 1 and registered a case and sent the first information report as per Ex. P. 19 to the jurisdictional Court. P.W. 21 is the Junior Engineer. He drew the sketch of scene of offence as per Ex. P. 20. P.W. 22 is the village accountant. He issued copies of record of rights of land bearing Sy. Nos. 163/3 and 182/3 as per Exs. P. 21 and P. 22. The dead body was stated to have been lying on the said land. P.W. 23 is the Head Constable. P.W. 24 is the Police Constable, who participated during the course of investigation at different levels. 7. As mentioned supra, the case fully rests on the circumstantial evidence. 8. Before proceeding further, it is relevant to note the evidence of Doctoi P.W. 18, who conducted the autopsy. It is not in dispute that the incidenl must have taken place on 22-2-2009. The dead body was found only or 25-2-2009. During autopsy, the Doctor-P.W. 18 has found that the body was distended, distorted, disfigured, decomposed and foul smelling, face was swollen with tongue and eye ball was protruding. Maggots measuring 1 cm. in length were seen crawling over mouth, face and nostrils. Upper ?rd of the right arm was present with humerus bone only and remaining part was missing. Lower ?rd of left forearm was missing. The Doctor has opined that the time since death was about three to five days prior to post-mortem examination. He collected viscera and sent the same for chemical examination. The tissues collected by him were sent for histopathology examination in his hospital. On receiving the Forensic Science Laboratory report as well as histopathology examination, the Doctor has given his final opinion as under: 1. During the post-mortem, no organic disease was noticed grossly; 2. No recognisable antemortem injuries were noted during post-mortem; 3. Body was decomposed; 4. Chemical analysis report No. I.S. 366/2009 was negative for poisons; 5. Histopathology shows all organs are autolysed with deposits of cholesterol crystals in coronary vessels. During the post-mortem, no organic disease was noticed grossly; 2. No recognisable antemortem injuries were noted during post-mortem; 3. Body was decomposed; 4. Chemical analysis report No. I.S. 366/2009 was negative for poisons; 5. Histopathology shows all organs are autolysed with deposits of cholesterol crystals in coronary vessels. The Doctor has also deposed that the cause of death cannot be given as the body was decomposed; however, the death was due to acute coronary insufficiency cannot be ruled out. He has also given opinion that the veil sent to him for examination could have been used for strangulating the women to death. In the cross-examination, the Doctor has opined that it is probable that Narayanamma might have died natural death. Acute coronary insufficiency may be caused due to natural causes like formation of cholesterol and atheromatous in the coronary arteries. In further cross-examination, the Doctor has opined that since the body was highly decomposed, it was not possible for him to say whether the injuries mentioned in the post-mortem report were antimortem or post-mortem. The sum and substance of the aforementioned evidence of P.W. 18-Doctor who conducted the autopsy clearly reveals that the said Doctor is not sure as to whether the death is homicidal or not. In view of the same, the Trial Court is justified in concluding that the prosecution has not proved that the death was homicidal in nature. The death may either be homicidal or may be due to natural circumstances, inasmuch as, the lady was more than 75 years of age. Since the Doctor has opined that the deceased might have died natural death also, it is not clear as to whether the death is homicidal or not. In view of the same, we also conclude that the prosecution has not proved that the death is homicidal in nature. 9. With regard to the first circumstance relied upon by the prosecution that accused nos.1 and 2 were last seen with the deceased, the evidence adduced by the prosecution is very weak. As mentioned supra, P.Ws. 6 and 7 who were Close friends of the deceased and who were residents of the very same village, wherein accused and complainant were living, they also have deposed that both of them moved together always wherever they go and they knew both the accused as well as deceased/complainant. According to the case of the prosecution, P.Ws. 6 and 7 who were Close friends of the deceased and who were residents of the very same village, wherein accused and complainant were living, they also have deposed that both of them moved together always wherever they go and they knew both the accused as well as deceased/complainant. According to the case of the prosecution, P.Ws. 6 and 7 saw both the accused sitting with the deceased eating beetle nut in the land of Krishnappa in the afternoon of 22-2-2009. Though they were very much present in the village thereafter, they did not speak about her whereabouts before anybody, much less, before the complainant and the police. P.Ws. 6 and 7 further have deposed that they went to Bangalore after one or two weeks and thereafter, they came back to the village. Even after coming back to the village after about one or two weeks after the incident, P.Ws. 6 and 7 chose to keep mum and they did not whisper before anybody about the last seen circumstance. Since the complainant and other relatives along with other villagers were searching for the deceased, till the dead body was found and though the investigation was under progress seriously, P.Ws. 6 and 7 did not disclose about the last seen circumstance before the police as well as before the complainant. Absolutely no valid reasons are forthcoming from P.Ws. 6 and 7 from keeping quiet. Their statements were recorded on 15-8-2009 i.e., after lapse of about six months from the date of the incident. What made P.Ws. 6 and 7 to keep quiet for six months and what made them to open their mind after six months is not deposed by them. It is not deposed by P.Ws. 6 and 7 that they were frightened or they were intentionally withholding the information since they were from the same village and since they very well knew the complainant. Under the natural course of conduct, witnesses could have stated about the last seen circumstance before the complainant or before the police. In view of the aforementioned reasons, the Trial Court is justified in disbelieving P.Ws. 6 and 7 and consequently has rightly disbelieved the circumstance of last seen relied upon by the prosecution. 10. The second circumstance is with regard to the alleged extrajudicial confession. According to the case of the prosecution, accused no. In view of the aforementioned reasons, the Trial Court is justified in disbelieving P.Ws. 6 and 7 and consequently has rightly disbelieved the circumstance of last seen relied upon by the prosecution. 10. The second circumstance is with regard to the alleged extrajudicial confession. According to the case of the prosecution, accused no. 1 made extrajudicial confession after one month of the incident before P.W. 8. It is relevant to note that P.W. 8 was also from the same village as that of the complainant and the accused and P.W. 8 was known to the complainant (P.W. 1). If really accused no.1 has confessed before P.W. 8, he would not have kept quiet, more particularly when he knew the complainant. Be that as it may, it is not the case of the prosecution that the accused absconded at any point of time. Accused Nos. 1 and 2 lived in the same village after the incident. According to P.W. 8, he made extrajudicial confession after one month of the incident. Further the statement of P.W. 8 was recorded by police during the course of investigation only after five months and 23 days i.e., on 5-8-2009. There is no reason as to why P.W. 8 should keep quiet till police recorded his statement on 5-8-2009. We are at loss to understand as to how the police came to know about the extrajudicial confession allegedly made by accused no. 1 before P.W. 8 on 5-8-2009. Be that as it may, the very unnatural conduct of P.W. 8 in keeping silent for more than about 5½ months compels the Court to disbelieve the version of P.W. 8 as well as the alleged extrajudicial confession. We also find that the reasons assigned by the Trial Court with regard to the said circumstance are just and proper. On reassessing the evidence on record, we also conclude that the extrajudicial confession allegedly made by accused no. 1 is not proved by the prosecution beyond reasonable doubt and the evidence in support of the said extrajudicial confession is wholly unreliable. 11. The next circumstance is with regard to recovery of M.O. 1 (at the instance of accused no. 1) under panchanama-Ex. P. 4. M.O. 1 is nothing but a small gold thread thali and laxmi coin totally measuring five grams only. P.Ws. 7 and 13 are the witnesses for seizure panchanama-Ex. P. 4. 11. The next circumstance is with regard to recovery of M.O. 1 (at the instance of accused no. 1) under panchanama-Ex. P. 4. M.O. 1 is nothing but a small gold thread thali and laxmi coin totally measuring five grams only. P.Ws. 7 and 13 are the witnesses for seizure panchanama-Ex. P. 4. As mentioned supra, both the accused were very much in the village, they did not abscond at any point of time, which means, the accused were very much in the village even when the investigation was seriously in progress. Further, only after recording the statements of P.Ws. 6 and 7 with regard to last seen theory on 15-8-2009, it seems the Investigation Officer has built up his case. It is the case of the prosecution that on the very day, i.e., on 15-8-2009 itself, the voluntary statement of accused no. 1 was recorded and based on the same, the gold laxmi kasu-M.O.1 is recovered from him. M.O. 1-gold Laxmi coin totally weighs five grams only. We have already mentioned that the evidence of P.W. 7 with regard to last seen circumstance cannot be believed, inasmuch as, his statement was recorded only after 15-8-2009. Even with regard to this circumstance also, we find that the evidence of P.W. 7 is shaky and not reliable. As is clear from the evidence of P.W. 7 while he was sleeping in his house at 1.00 p.m. on 15-8-2009, some children informed him that police have come in two jeeps near the temple and therefore he went near the temple; hundreds of people had gathered near the said temple and the police had brought accused no.1-Manjunath; the police told that accused no.1 will show the ornaments and the place of occurrence. Thereafter, the police made the panchas including P.W. 7 to sit in the jeep and all of them were taken to the scene of offence. The accused and the panchas were taken by the police to the place in the land of Krishnappa, where accused and Narayanamma were sitting on that day. A mahazar was drawn and he has signed the said mahazar. Thereafter, the police took the panchas to the house of accused no.1-Manjunath. The accused entered his house and removed the bags containing ragi. There was a electric junction box and from the said box, the accused removed a gold wire, thali, lakshmi kasu and three bids. A mahazar was drawn and he has signed the said mahazar. Thereafter, the police took the panchas to the house of accused no.1-Manjunath. The accused entered his house and removed the bags containing ragi. There was a electric junction box and from the said box, the accused removed a gold wire, thali, lakshmi kasu and three bids. The same are marked at M.O. 1. At the first look itself, from the examination-in-chief, it is clear that the police have taken preactive role in recovering M.O. 1. The police in fact have led the accused and panchas to the place of incident as well as to the house of accused no.1. On the other hand, it should have been based on the voluntary action of the accused. In the cross-examination, P.W. 7 has admitted that the police have not recorded his statement. He further admitted that when they reached the scene of offence, it was at 1.00 p.m. and they were there in the scene of offence for more than one hour and his signature is taken at only one place i.e., on scene of offence on three papers. He identified his signature at Ex. P. 4(a). Like him, other panchas also affixed their signatures at Ex. P. 4 at the scene of offence. He clearly admits that he did not affix any signature on mahazar in the village. He reveals in the further cross-examination that the signature of the panchas including P.W. 7 were taken on the mahazar near the scene of offence and they were not taken in the house of the accused. This admission of P.W. 7 clearly reveals that the signature of the panchas were not taken in the house of accused no.1, wherein M.O. 1 was recovered. On the other hand, their signatures were taken only on the scene of offence and not elsewhere. In view of such clear admission of P.W. 7, we are of the opinion that P.W. 7 is a bought up witness only to suit the purpose of the police. If we look at the evidence of P.W. 7, who is the witness for last seen circumstance as well as recovery of M.O. 1, it is clear that he is not telling the truth before the Court with regard to last seen circumstance. If we look at the evidence of P.W. 7, who is the witness for last seen circumstance as well as recovery of M.O. 1, it is clear that he is not telling the truth before the Court with regard to last seen circumstance. He has admitted that he has not stated before the police that he was not well and that he went to Bangalore for treatment on 23-2-2009 and that he was in Bangalore for two weeks etc. It is clearly admitted by P.W. 7 that after returning from Bangalore, he did not go out of the village and after he returned from Bangalore, he came to know about the murder of Narayanamma. He did not inform anybody in the village about P.W. 6 (wrongly typed as P.W. 7 in deposition of P.W. 7) and himself seeing the deceased with the accused persons. He even did not state about the said fact before his wife, his son and other family members in his village. All these admissions of P.W. 7 clearly disclose that he is not a reliable witness and that his version is not trustworthy, more particularly, when he has not signed the mahazar in the house of accused no.1, wherein recovery of M.O. 1 was allegedly made. Moreover there are no specific marks on M.O. 1 to show that the same belongs to the deceased. It is not uncommon in this part of the State to have Thali, Laxmi coin in the Mangalya chain. Mangalya chain itself is not recovered. However, the small gold thread is allegedly recovered as M.O. 1. 12. The evidence of another mahazar witness-P.W. 13 is also untrustworthy. Though he has deposed in the examination-in-chief that accused no.1 took them to a room in his house and M.O. 1 was brought by accused no.1 from a electrical junction box fixed to the wall of the said room, he has given certain answers in the cross-examination which disclose that he is not a truthful witness. In the cross-examination, he has deposed that since he was knowing that the police are coming, he went near the said temple at about 3.00 p.m.; about 50 to 60 people had assembled near the said temple, that number of persons were there including Nanjundappa, Venkataswamy, Rathnakumar, Gangappa, etc. None of them came with the police to the house of accused no.1. None of them came with the police to the house of accused no.1. It is specifically deposed by P.W. 13 that Nanjundappa (P.W. 7) did not come to the house of accused no.1 with the police at the time of recovery. On the other hand, one Srinivasagowda, S/o. Thammanna came with the police along with accused no.1 at the time of recovery. He has also deposed that the police did not obtain the signature of P.W. 7-Nanjundappa near the scene of offence. However, P.W. 13 has put his signature at Ex. P. 4 in front of the house of accused no.1 and that Ex. P. 4 was written in front of the said house. According to him, police were near the house of accused no.1 from 3.00 p.m. to 4.00 p.m. and there were 50 to 60 people near the house of accused no.1-Manjunath. He also admits that there are no special marks on M.O. 1. This admission of P.W. 13 clearly reveals that neither P.W. 7 nor P.W. 13 are reliable witnesses. P.W. 13 excludes the presence of P.W. 7 in the house of accused no.1 at the time of alleged recovery. Apart from P.W. 13, other 50-60 persons were present in front of house of accused no.1. The version of P.W. 13 will have to be viewed keeping in mind that he went near the temple since he came to know that the police would be coming near the temple. There is no reason as to why P.W. 13 should take extra interest to go to temple and wait near the temple for the purpose of recovery. Having regard to the aforementioned facts and circumstances, we are of the considered opinion that the aspect of recovery also is not proved by the prosecution beyond reasonable doubt. Though certain material on record is attempted to be brought by the prosecution with regard to recovery of M.O. 1, we find that such attempt is halfhearted. The evidence of P.W. 7 and P.W. 13 is not trustworthy and believable. Thus we conclude that the aspect of recovery of M.O. 1 also fails and the same is held to be not proved. 13. The next circumstance relied upon by the prosecution is the recovery of gold ingot M.O. 9 from the shop of P.W. 5. The evidence of P.W. 7 and P.W. 13 is not trustworthy and believable. Thus we conclude that the aspect of recovery of M.O. 1 also fails and the same is held to be not proved. 13. The next circumstance relied upon by the prosecution is the recovery of gold ingot M.O. 9 from the shop of P.W. 5. P.W. 5 has deposed that a person known to him from Pattan Village came to his shop five to six times and the said person had brought a two row Mangalya sara in the month of February 2009 for selling on the ground that he has some financial difficulty. It is further deposed by P.W. 5 that the said Mangalya sara was melted and was converted as gold ingot marked as M.O. 9. Firstly, it is not clear as to whether P.W. 5 knew P.W. 12 or not. He has merely deposed that one person from Pattan Village came and sold mangalya sara to him. We are at a loss to understand as to who that person was. In the examination-in-chief itself, P.W. 5 has deposed that he is not sure as to whether the said person was Lakshman or not. Moreover, P.W. 12 has turned hostile to the case of the prosecution. Even in the cross-examination, P.W. 12 did not give admission in favour of the prosecution. 'Therefore, it is not clear as to whether accused no.1 handed over the alleged Mangalya chain to P.W. 12, who in turn sold the same to P.W. 5. The evidence relied upon by the prosecution is vague. As mentioned supra, P.W. 5 himself was not sure about the name of the person who handed over Mangalasutra to him. Moreover, there cannot be any special marks on the gold ingot. It would be very easy for the prosecution to get gold ingot from the pawn broker shop and contend that the gold ornaments recovered are melted. The entire materials will have to be scrutinised carefully. It is for the prosecution to prove its case beyond reasonable doubt. Since, P.W. 12 has turned hostile to the case of the prosecution, it cannot be said that the recovery of gold ingot has something to do with the accused. 14. The last circumstance is with regard to recovery of veil-M.O.11 under panchanama-Ex. P. 9. P.W. 16 is the witness for the said mahazar. Since, P.W. 12 has turned hostile to the case of the prosecution, it cannot be said that the recovery of gold ingot has something to do with the accused. 14. The last circumstance is with regard to recovery of veil-M.O.11 under panchanama-Ex. P. 9. P.W. 16 is the witness for the said mahazar. According to P.W. 16, on 15-8-2009, accused no.2 led police and panchayathdars to her house in the village and took out the veil (duppatta of chudidar) from the trank, which was kept below the cot. We have already clarified that the entire investigation was done only on 15-8-2009. The said witness clearly admits that he is not able to give the boundaries of house of accused no.2 Prabhavathamma. He is not able to tell the colour of veil (M.O. 11); that about 50 to 60 villagers had assembled near the said temple and it was about 4.00 or 5.00 p.m. at that time. Be that as it may, there are no special marks on the veil. So also the prosecution has failed to prove that the death is homicidal in nature. Thus, it is not clear as to whether the veil-M.O.11 so seized under Ex. P. 9 was used for the commission of offence or not. It is not uncommon to have veil/duppatta in every house of the village. 15. Since, it is not proved by the prosecution beyond reasonable doubt that the death was homicidal in nature, the seizure of veil at the instance of accused no.2 cannot be said to be incriminating circumstance against the accused, more particularly, when it is not uncommon to have veil in every house of the village and there are no special marks on the said veil. 16. Having regard to the aforementioned discussion and entire material on record, we are of the opinion that though the Trial Court is justified in acquitting the accused for the offences punishable under Sections 302 and 392 of IPC, it has erred in convicting accused 1 for the offence punishable under Section 379 of IPC. Since the circumstance of the recovery of M.O. 1 is also not proved before the Court satisfactorily, the accused shall be given benefit of doubt. 17. Accordingly, following order is made: (i) Crl. A. No. 1073 of 2012 filed by the State is dismissed. (ii) Crl. A. No. 779 of 2015 filed by accused no.1 is allowed. Since the circumstance of the recovery of M.O. 1 is also not proved before the Court satisfactorily, the accused shall be given benefit of doubt. 17. Accordingly, following order is made: (i) Crl. A. No. 1073 of 2012 filed by the State is dismissed. (ii) Crl. A. No. 779 of 2015 filed by accused no.1 is allowed. (iii) Accused No. 1-K. Manjunatha is acquitted of all the charges levelled against him as well as for the offence punishable under Section 379 of IPC. The fine amount if any, deposited by accused No. 1 shall be refunded to him by the concerned Court.