JUDGMENT : This appeal is directed against the judgment of conviction and sentence passed by the Principal Sessions Judge, Shivamogga in Sessions Case No.131/2014 for the offences punishable under Sections 394 and 397 of IPC sentencing the accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for 2 years for the offence punishable under Section 397 r/w. Section 394 of IPC. 2. The brief facts of the case of the prosecution are as follows: On 18.05.2007 at about 12.00 noon, accused who was known to the family of CW7 Sharadamma entered into the her house situated at 60 feet road, 2nd Cross, 1st Stage of Vinoba Nagar, Shivamogga and realizing that CW6 was alone in the house he robbed her mangalasutra, weighing about 40 gms. worth Rs.36,000/- by sprinkling chilly powder into her eyes and mouth and also assaulted her with a knife and caused grievous injury. 3. On the filing of the complaint a crime came to be registered against the accused for the offences punishable under Section 394 of IPC. At the time of framing of the charges, since accused caused grievous hurt to the victim, offence under Section 397 of IPC is also registered against the accused. Charge was framed against the accused for the offences punishable under Sections 394 and 397 of IPC. Accused has pleaded not guilty and claims to be tried. In order to substantiate the case against the accused, prosecution in all examined 5 witnesses as PWs. 1 to 5 and marked the documents as Exs. P1 to P10. Statement of accused under Section 313 of Cr.P.C. was also recorded wherein accused has denied the incriminating material against him. He has also not chosen to lead evidence on his behalf. 4. The court below, after hearing the arguments advanced by the learned Public Prosecutor for the State and the counsel, on appreciation of the oral and documentary evidence let in by the prosecution, by the impugned judgment of conviction and order of sentence, convicted the accused for the offences punishable under Sections 394 and 397 of IPC and imposed the sentence as stated supra. Being aggrieved by the same, the present appeal is preferred by the accused. 5. Heard Sri N.R. Krishnappa, learned counsel for the appellant and Sri K. Nageshwarappa, learned Government Pleader for the State. 6. Being aggrieved by the same, the present appeal is preferred by the accused. 5. Heard Sri N.R. Krishnappa, learned counsel for the appellant and Sri K. Nageshwarappa, learned Government Pleader for the State. 6. The learned counsel appearing for the appellant has taken me through the evidence of PWs. 1 and 3, who are the eyewitnesses to the incident, PW2 is a panch witness to the mahazar Ex.P3, PW4 was the PSI of Shivamogga Police Station and PW5 was the medical officer of Nanjappa Hospital, Shivamogga who examined the injured. 7. It is contended that PWs. 1 and 3 are the neighbours of the victim, their houses are far from the victim’s house and there is possibility to hear the sounds of victim‘s house and without appreciating this aspect the lower court has gravely erred in convicting the appellant and the same is liable to be set aside. 8. It is further contended that the prosecution has not examined the important witness, i.e., the victim before the lower court, to establish the guilt. However the victim was not alive and this aspect is not at all considered by the court below, as such the conviction held by the court below is unsustainable in the eye of law. 9. It is further contended that according to the evidence of PW1, in the house of victim, she stays alone whenever her husband goes out of town and PW1 used to visit her house twice or thrice and enquire about her well being. But in her cross-examination PW1 has clearly stated that she did not see the appellant going to the house of victim and she did not know the appellant personally. In her cross-examination she has also stated that the victim suffers from fits, BP and she is a diabetic patient and for that every day she used to take insulin injection and without considering all these aspects the court below has erred in convicting the accused. 10. It is further contended that PW3 clearly states in her cross-examination that the victim’s clothes was blood stained, but the Investigating Officer has not seized the said clothes and this aspect has not been considered by the court below while appreciating the evidence. Therefore it requires re-appreciation of the evidence independently for the charges levelled against the accused. 11. 10. It is further contended that PW3 clearly states in her cross-examination that the victim’s clothes was blood stained, but the Investigating Officer has not seized the said clothes and this aspect has not been considered by the court below while appreciating the evidence. Therefore it requires re-appreciation of the evidence independently for the charges levelled against the accused. 11. Nextly, it is contended that PW2 is a hearsay witness and he is a friend of victim’s son and he is also a mahazar witness and he has not identified the mangalya chain and this aspect is also not considered by the court below. 12. Lastly, it is contended that the evidence on record was enough to create suspicion and the appraisal of evidence on record by the court below suffers from illegality and submits that there is perversity in the order passed by the court below. Urging all these grounds, learned counsel prays for setting aside the order of conviction and acquit the accused of the offences punishable under Sections 394 and 397 of IPC. 13. Learned Government Pleader for the State supports the impugned judgment of conviction and sentence and submits that the court below has rightly appreciated the materials on record and also the evidence of the witnesses and is justified in convicting the accused for the offences punishable under Sections 394 and 397 of IPC and it does not call for any interference at the hands of this Court. 14. It is contended that on 18.05.2007 at about 12.00 noon when the victim was alone in the house accused came inside the house and robbed her mangalasutra weighing about 40 grams worth Rs.36,000/-. He also assaulted her with a knife and caused grievous hurt to her and the same is established by the evidence of PW1 and PW3 who were the eyewitnesses to the incident. It is in the evidence of PW1 that she stays in the opposite house of the victim and it is her practice that whenever her husband is not in town she used to visit her house 2 – 3 times a day. It is in the evidence of PW1 that she stays in the opposite house of the victim and it is her practice that whenever her husband is not in town she used to visit her house 2 – 3 times a day. On 18.05.2007 at about 12.00 noon, she heard a noise from the house of the victim and she knocked the door but the door was not opened, she thought that the victim might be suffering from fits and she peeped inside the window and she saw that victim was lying near the door and one person was sitting on her body. At that time, son of PW1 came there and PW1 asked him to close the backdoor as someone is attacking the victim and by that time the other neighbours also came there and they broke open the door. When they went inside they saw the person being the accused standing and there was some injuries on the stomach of the victim and there was also chilly powder spread on the floor and knife was also there. But the mangalyasara of the victim was missing. 15. It is in the evidence of PW3 that he is the neighbour of the victim. On 18.05.2007 at about 12.00 noon, when he heard some noise he went near the house of the victim and saw through the window accused sitting on the victim and immediately they broke open the door and caught hold of the accused. The victim could not speak. The mangalasutra was not in her neck and the same was in the pocket of the accused. 16. Hence, learned Government Pleader submits that the evidence of PWs. 1 and 3 proves beyond reasonable doubt the involvement of the accused in the crime and he robbed the mangalasutra from the neck of the victim and also assaulted her with a knife and caused grievous injury. The court below, after appreciating the materials on record in proper perspective has rightly convicted the accused and interference by this court is not warranted. 17. Keeping in view the submissions made by the learned counsel for the appellant and learned Government Pleader for the respondent/State, the point that arises for consideration in this appeal is, Whether the court below was justified in convicting the accused for the offences punishable under Sections 394 and 397 of IPC? 18. 17. Keeping in view the submissions made by the learned counsel for the appellant and learned Government Pleader for the respondent/State, the point that arises for consideration in this appeal is, Whether the court below was justified in convicting the accused for the offences punishable under Sections 394 and 397 of IPC? 18. On hearing the contentions advanced by the learned counsel for the parties and on an evaluation of the material on record, it is to be seen that PW-1 Jyothi is an eyewitness to the incident. In her evidence she has stated that her house is opposite to the house of the victim and whenever husband of the victim was not in house she used to visit the house of the victim once or twice a day. On 18.05.2007 at about 12.00 noon when she was standing outside her house she heard some noise and when she went and knocked the door no one opened the door and she peeped through the window and saw victim lying on the floor and accused was sitting on her body. By that time, son of PW1 came there and she asked him to close the back door and other neighbours came there and broke open the door and found the accused standing and the victim had injuries on her stomach and chilly powder was spread on the floor and knife was also lying there. PW1 is the panch witness for seizure mahazar at Ex.P2. 19. In her cross-examination PW1 stated that there is a road of 15 ft. in between the house of victim and her house. The distance between the gate of the house of the victim and the main door of the house is about 2 ft. PW1 has not seen the accused going inside the house of victim. She denied the suggestion that PW1 has given false complaint against accused. 20. PW2 Seetharam in his evidence stated that on 18.05.2007 he along with CW2 Narayanarao went to Doddapete Police Station. There he saw the accused and Police took the chain from the pocket of the accused and the same was seized by the police under mahazar at Ex.P2. PW2 is the panch witness for mahazar Ex.P2. 21. P3 Siddarammappa is also one of the neighbours of the victim. There he saw the accused and Police took the chain from the pocket of the accused and the same was seized by the police under mahazar at Ex.P2. PW2 is the panch witness for mahazar Ex.P2. 21. P3 Siddarammappa is also one of the neighbours of the victim. In his evidence, he stated that on 18.5.2007 at about 12.00 noon when he heard some noise near the house of the victim, he immediately went there and through the window he saw the victim lying down and accused was sitting on her. They broke open the door and caught hold of the accused. Mangalasutra was not in the neck of the victim but it was found in the pocket of the accused. On the floor, chilly powder was spread and a knife was lying and victim sustained injuries on her stomach and bangle pieces were also lying there. 22. In the course of cross-examination, PW3 has stated that when they went inside the house of victim, she showed by sign that mangalasutra is missing and when accused was asked for mangalasutra he took the same from his pocket and showed to them and again he kept the same in his pocket. He also states that he does not remember the colour of the clothes accused was wearing. 23. PW4 Eshwaraiah was the PSI of Doddapete Police Station at the time of occurrence of the crime. He states in his evidence that on 18.05.2007 when he was on duty, at about 1.30p.m. PW1 Jyothi and CWs. 7 to 10 produced the accused before him and he registered FIR. He also seized the mangalasutra from the accused as per seizure mahazar at Ex.P3. At about 3.00 to 3.30 p.m. he, along with the accused and panchas, went to the scene of occurrence of the crime and drew spot mahazar as per Ex.P2 and seized Mos. 1 to 4 and also prepared rough sketch of the place. After coming back to the Police Station he subjected the seized property to P.F.69./2007 and 70/2007 as per Exs. P8 and P9 and submitted the same to the court and sent the accused to the court along with remand application. He then visited the hospital and recorded the statement of the victim and handed over the case to CPI for further investigation. P8 and P9 and submitted the same to the court and sent the accused to the court along with remand application. He then visited the hospital and recorded the statement of the victim and handed over the case to CPI for further investigation. He has further stated that CPI, after collecting the injury certificate, filed the charge sheet against the accused. 24. In the course of cross-examination, he denied the suggestion that the accused went to the house of the victim to give clothes and she has given him rotti and at that time she fell down due to giddiness and when he was trying to help her, the neighbours came and mistook him as assailant and the same was under a mistaken notion. 25. PW5 Dr. Vishwanath in his evidence stated that on examination of injured Sharadamma aged 70 years who was brought by Jyothi for treatment alleging assault, he found the injuries inside her mouth and also on the stomach. The doctor has opined that the same may be due to the use of a sharp object. 26. On re-appreciation of the entire evidence on record, firstly there is no evidence of the victim since by the time the evidence was recorded, the victim Sharadamma died. The only eyewitness to the incident is the victim. When her evidence is not recorded it cannot be believed that the accused has committed the offences stated supra. The accused being friend of the car driver of son of the victim, he used to come to their house. Even at the said time also he states in his statement that he came to give clothes to their house and he was also eating the rotti given by the victim. When she fell down due to giddiness he tried to help her and the same has been mistook by the neighbours that he was assaulting the victim and trying to rob the mangalasutra. Therefore, the evidence of PWs. 1 and 3 cannot be believed in its entirety and the accused may be given benefit of doubt, instead of that he was convicted for the offences by the trial court. The same requires to be appreciated in a proper perspective keeping in view of the evidence of PWs. 1 and 3. These witnesses are vital to the case of the prosecution in order to establish the guilt against the accused. 27. The same requires to be appreciated in a proper perspective keeping in view of the evidence of PWs. 1 and 3. These witnesses are vital to the case of the prosecution in order to establish the guilt against the accused. 27. The fact that the accused is not a habitual offender and the prosecution has not placed any concrete evidence in order to prove the guilt against the accused that the accused had committed the offence by entering into the house of the victim Sharadamma and also snatched the mangalasutra from her neck and also caused injuries over the person of the victim Sharadamma. In this case though mangalasutra said to be seized by the Investigating Officer during the course of investigation as found in the person of the accused, the same has not been marked to establish the guilt against the accused. Eventhoguh MOs 1 to 4 chilly power, knife, bangle pieces and bolt were marked by the prosecution they have failed to mark the very important object, i.e., the mangalasutra said to be snatched from the neck of the victim Sharadamma and also no endevourance has been made by the Investigating Officer for having produced the same and also to establish the guilt against the accused. Therefore, the clinching evidence relating to the said crime is important to prove the guilt against the accused. The same has not been appreciated by the court below in a proper perspective. The trial court has misdirected and misread the entire evidence of the prosecution. Therefore, in this appeal it is required to be re-appreciated as there is perversity committed by the trial court in convicting the accused. 28. Therefore, keeping in view the peculiar circumstances of the case and for the foregoing reasons, the point framed by this court is answered in the negative and consequently the appeal is allowed. The judgment of conviction and order of sentence dated 13.10.2015 passed by the Principal Sessions Judge, Shivamogga in S.C. No. 131/2014, convicting the accused-appellant herein for the offences punishable under Sections 394 and 397 of IPC is hereby set aside. Consequently, the accused is acquitted of the charges levelled against him.