JUDGMENT : 1. The appellant/accused No.1 who is convicted for the offences punishable under Sections 302, 397 and 449 of the Indian Penal Code (‘IPC’ for short) and sentenced to undergo imprisonment for life, simple imprisonment for three years and rigorous imprisonment for a period of five years and fine of Rs.5,000/-, respectively, has preferred this Appeal challenging the validity of the judgment of conviction and order of sentence dated 10.11.2017 passed in S.C.No.56/2014 on the file of the VI Additional District and Sessions Judge, Tumakuru. Brief facts of the case are: 2. The complainant by name P.K.Thanujamma, milk vendor, as usual went to the house of the deceased Yashodhamma on 10.09.2013 at about 7.00 am to lend milk and when there was no response, grew suspicious, went inside the house as doors were kept open and found Yashodhamma lying dead on the floor near the kitchen. Immediately she informed the neighbours who in turn informed the children of the deceased, who were residing at Bengaluru. After the news spread, the complainant visited the police station and lodged the complaint. The police registered a case initially against unknown person based on the complaint lodged by Thanujamma-P.W.1 under Section 302 and 392 of IPC in Crime No.161/2013 on 10.09.2013 at about 10.00 AM. After thorough investigation, police filed Charge sheet against the appellant and another accused person by name T.Sundar, Son of K.Thangavelu Acharya. During the course of investigation, the police seized M.Os. 6, 7 and 8 which are gold ornaments and M.O.9-mobile phone of the deceased from the house of one Kempegowda.H.K.-P.W.18 and the said gold ornaments marked as M.Os.6, 7 and 8 were identified as that of the deceased. 3. After receipt of the Charge Sheet, the learned Magistrate took cognizance of the offence alleged against the accused persons and committed the matter to the Sessions Court, as the offences were exclusively triable by the Sessions Court. 4. After the case committed to the Sessions Court, the learned Sessions Judge secured the presence of the accused persons and framed the Charge for the offences punishable under Sections 302, 397 and 449 r/w 34 of the IPC. The Charges were explained to the accused persons in the language known to them and after understanding the substance of the Charges, accused persons denied the Charges and claimed for trial. 5. The Charges were explained to the accused persons in the language known to them and after understanding the substance of the Charges, accused persons denied the Charges and claimed for trial. 5. In order to bring home the guilt of the accused, prosecution in all examined 20 witnesses as P.Ws.1 to 20 and relied upon 28 documentary evidence which were exhibited and marked as Exs.P.1 to 28. M.Os.1 to 13 were also marked comprising of M.Os.6 to 8 which are gold ornaments. Defence marked contradictions as found in the testimony of prosecution witnesses Exs.D.1 to 8. 6. On conclusion of the prosecution evidence, the learned Sessions Judge recorded the statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure. The accused persons denied all the incriminating circumstances that were found against them. They neither offered any explanation with regard to incriminating materials found against them nor lead any defense evidence. Thereafter, the Sessions Judge heard the arguments on both side in detail and passed the judgment of conviction and order of sentence against the accused No.1 alone, for aforesaid offences and acquitted accused No.2 of all Charges. Hence the present Appeal. 7. We have heard the learned counsel for the parties. 8. Sri Hashmath Pasha, learned Senior Counsel for the appellant/accused No.1 contended that the impugned judgment of conviction and order of sentence passed against the appellant is opposed to law, facts and circumstances, and probabilities of the case. He further contended that the entire case of the prosecution is based on circumstantial evidence, and prosecution has miserably failed to establish any one of the circumstances much less all circumstances and therefore, the impugned judgment has resulted in miscarriage of justice. 9. Learned Senior Counsel further contended that the Trial Court erred in recording the conviction against the appellant/accused No.1 especially, when the very Court acquitted accused No.2 on the basis of the evidence and common Charge and when the Charge was framed with the aid of Section 34 of the IPC. He also contended that against the Order of acquittal of accused No.2, State has not preferred any Appeal and therefore logically the present appeal of the Appellant has to be allowed in toto. 10. Learned Senior Counsel further contended that the incident is said to have occurred in the intervening night of 9/10 September 2013. He also contended that against the Order of acquittal of accused No.2, State has not preferred any Appeal and therefore logically the present appeal of the Appellant has to be allowed in toto. 10. Learned Senior Counsel further contended that the incident is said to have occurred in the intervening night of 9/10 September 2013. It is only after Thanujamma noticed that the deceased was lying dead, criminal law was set into motion and the entire case of the prosecution from the inception was against unknown culprits and there is no material on record to connect the accused persons to the crime and therefore, the impugned judgment of conviction against the appellant alone is bad in law. Learned Senior Counsel further argued that on 25.09.2013 the appellant was arrested based on the voluntary statement of accused No.2 and the appellant/accused No.1, the police proceeded to the house of P.W.18-Kempegowda.H.K. who is the uncle of P.W.19-Sachin and recovered M.O.13-Stereo, wherein, M.Os.6 to 9 were said to have been hidden by the accused persons and based on the same, police have implicated the accused persons in the crime, and the same is not established as the recovery is not proved in accordance with law. Learned Senior Counsel further argued that based on the recovery of M.Os.6 to 9 alone, the conviction order passed against the appellant for the offences punishable under Sections 302, 397 and 449 of the IPC cannot be sustained at any stretch of imagination and at best, the case would fall under Section 411 of the IPC and prayed to allow the Appeal. 11. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor vehemently contended that the accused persons have not claimed ownership over M.Os.6 to 8, the gold ornaments seized under Ex.P.4-mahazar from the house of P.W.18-Kempegowda H.K. He further pointed out that in order to conceal the crime, accused have hidden M.Os.6 to 9 inside M.O.13-stereo and kept it in the house of P.W.18. He further contended that from the evidence of P.W.19 it is found that P.W.19 is the class mate of accused No.1 and accused No.1 had kept M.O.13 in the house of P.W.18, and P.W.18 has supported the case of the prosecution. He further contended that from the evidence of P.W.19 it is found that P.W.19 is the class mate of accused No.1 and accused No.1 had kept M.O.13 in the house of P.W.18, and P.W.18 has supported the case of the prosecution. The seizure of M.Os.6 to 9 from the house of P.W.18 which were kept in M.O.13 clearly establishes the guilt of the accused and therefore, recovery is the strongest circumstance and there is no explanation offered by the appellant/accused No.1 with regard to recovery and therefore, conviction order passed against the appellant/accused No.1 is perfectly justified. Learned Additional State Public Prosecutor also contended that mere acquittal of accused No.2 has not caused any serious dent to the case of the prosecution and even in the absence of Appeal by the State against acquittal of accused No.2, State can very well oppose the present appeal on merits and prayed for dismissal of the Appeal. 12. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration is: “Whether the Appellant/accused No.1 has made out a case to interfere with the finding of the Trial Court convicting him for the offences punishable under Sections 302, 397 and 449 of IPC, in the facts and circumstances of the present case?”. 13. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including original records, carefully. 14. This Court being the appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses - (i) P.W.1-P.K.Thanujamma, neighbour and milk vendor of the house of deceased deposed that deceased Yashodhamma was residing alone in her house at Jaladagere; On 10.09.2013, at 7.00 am, she went to the house of the deceased to supply milk. Since there was no response, she went inside the house and found that Yashodhamma was lying dead on the floor. She informed the said fact to one Sunandamma and lodged the complaint as per Ex.P.1. The police came and drawn the spot mahazar as per Ex.P.3. Ex.P.2. is the photo of the dead body and supported the prosecution case. Since there was no response, she went inside the house and found that Yashodhamma was lying dead on the floor. She informed the said fact to one Sunandamma and lodged the complaint as per Ex.P.1. The police came and drawn the spot mahazar as per Ex.P.3. Ex.P.2. is the photo of the dead body and supported the prosecution case. (ii) P.W.2-Narendra Kumar, son of the deceased residing at Bengaluru, deposed that his mother Yashodhamma was residing in Jaladagere village and he used to visit her once in a week. On 10.09.2013, at 7.30 am, he received the information that his mother was killed. Immediately he rushed to the village and saw that the dead body of his mother was lying near the kitchen and her ornaments were missing. On 25.09.2013 police called him and showed accused No.1 and M.Os.6 to 9, and he identified them and supported the prosecution case. (iii) P.W.3-K.Chandrashekar, panch witness to mahazars Exs. P.3 to P.5 deposed that on 25.09.2013, Kunigal police called him to the police station wherein accused Nos.1 and 2 were present. Police conducted personal search of accused Nos.1 and 2. M.Os.10 to 12-mobile phones were seized. Thereafter, accused Nos.1 and 2 took himself and the CPI to Nagamangala and told that they have kept the jewels inside the tape recorder in Sachin's house and supported the prosecution case. (iv) P.W.4-Sandeep-panch witness to Exs.P.3 to P.5 deposed on par with P.W.3 and supported the prosecution case. (v) P.W.5-Sunandamma, deposed that on 10.09.2013 at 7.30 am, P.W.1-Thanujamma came and informed that Yashodamma is dead. Around 8.30 am, she went and saw. By that time, police had come and inquest was drawn as per Ex.P.1, in her presence M.Os.1 and 2 were seized and supported the prosecution case. (vi) P.W.6-G.Sreenivas, witness to the spot mahazar and inquest deposed that on 10.09.2013 at 7.45 am, he received the information about the death of Yashodhamma and went to her house. Police conducted the spot mahazar as per Ex.P.3 and seized M.Os.1 to 5, and supported the prosecution case. (vii) P.W.7-B.C.Gangadhar, panch witness to Ex.P.6 deposed regarding seizure of clothes of the deceased in CPI Office and supported the prosecution case. (viii) P.W.8-Basavaraju, panch witness to seizure of mobile deposed that on 13.10.2013, PSI called him to act as panch for seizure of one mobile from Santhosh which was given to him by accused No.2. (vii) P.W.7-B.C.Gangadhar, panch witness to Ex.P.6 deposed regarding seizure of clothes of the deceased in CPI Office and supported the prosecution case. (viii) P.W.8-Basavaraju, panch witness to seizure of mobile deposed that on 13.10.2013, PSI called him to act as panch for seizure of one mobile from Santhosh which was given to him by accused No.2. Ex.P.7 is the mahazar and M.O.9 is the mobile, and supported the prosecution case. (ix) P.W.9-Santhosh @ Govindaraju, panch witness to seizure of mobile under mahazar Ex.P.7, turned hostile. (x) P.W.10-Y.M.Krishnamurthy, deposed that he came to know that Yashodhamma was killed. He went to the spot at 8.30 am and he wrote the complaint as per Ex.P.1 as narrated by P.W.1, and supported the prosecution case. (xi) P.W.11-Dr.Sumathi, deposed that on 10.09.2013, as per the requisition of the police, she conducted the post mortem examination over the dead body of deceased Yashodhamma and opined that cause of death was due to asphyxia as a result of strangulation (manual). Ex.P.9 is the post mortem report, Ex.P.10 is the opinion regarding towel and M.O.1 is the towel, and supported the prosecution case. (xii) P.W.12-Gurunath, Head Constable, deposed that as per the directions of CPI, on 24.09.2013, along with ASI and others he went to Nagamangala and apprehended accused No.2 near T.B. of Nagamangala. On the information given by accused No.2, on 25.09.2013, accused No.1 was arrested and produced before the CPI. He signed Ex.P.3, Ex.P.4 and Ex.P.5 and supported the prosecution case. (xiii) P.W.13-Shivakumar, Head Constable, deposed that on 10.09.2013, he was deputed to escort the dead body of Yashodhamma for post mortem. Accordingly he escorted the dead body and after the post mortem the clothes of the deceased M.Os.3 to 5 given by the doctor were brought and produced in the police station which were seized under mahazar-Ex.P.6, and supported the prosecution case. (xiv) P.W.14-Prakash, police constable deposed that on 10.09.2013 at 7.30 am, PSI recorded Ex.P.1-complaint which he carried and handed over to H.C.169 at 9.50 AM in the police station, and supported the prosecution case. (xv) P.W.15-Gangaraju, Head Constable attached to the Investigating Officer deposed that he was the computer operator and on laptop, he prepared Ex.P.5-inquest, Ex.P.2-spot mahazar, and mahazars Exs.P.3, P.5 and P.6, and supported the prosecution case. (xv) P.W.15-Gangaraju, Head Constable attached to the Investigating Officer deposed that he was the computer operator and on laptop, he prepared Ex.P.5-inquest, Ex.P.2-spot mahazar, and mahazars Exs.P.3, P.5 and P.6, and supported the prosecution case. (xvi) P.W.16-Chandrashekar, Head Constable, deposed that on 10.09.2013 when he was the SHO of Amruthur police station, at 10.00 am P.W.14 presented the complaint-Ex.P.1 sent by PSI which was registered in Crime No.161/2013. Ex.P.12 is the FIR and supported the prosecution case. (xvii) P.W.17-Manjunath, PSI, Amruthur Police Station deposed that on 10.09.2013, he received information over phone about the death of yashodhamma at Jaladigere village. He reached the spot at 8.30 am. The complaint Ex.P.1 given by P.W.1 was sent to the police station through P.C.397. Ex.P.1(d) is his endorsement. He requested the Superintendent of Police to send the dog squad and finger print experts. Further investigation was taken over by CPI, and supported the prosecution case. (xviii) P.W.18-Kempegowda, resident of Nagamangala deposed that P.W.19 is his nephew and he is under his care. P.W.19, accused Nos.1 and 2 were known to each other. About two years earlier, accused No.1 had given him a car stereo to keep for some time in his house and he would take back later. On 25.09.2013, at about 12.00 noon, the police enquired about car stereo. He handed over the same to the police. Inside the said stereo gold jewels were there and the same were seized under mahazar-Ex.P.4 by the police, and supported the prosecution case. (xix) P.W.19-Sachin Kumar, deposed that his uncle P.W.18 told that accused No.1 had kept one car stereo with him about 10 to 12 days prior to 25.09.2013 and on 25.09.2013 police came and seized the said car stereo, and supported the prosecution case. (xx) P.W.20-H.N.Dharmendra, CPI, Kunigal, deposed that on 10.09.2013, he took up further investigation of the case, reached the spot at 9.15 am and conducted further investigation and filed the charge sheet, and supported the prosecution case. 15. From the evidence on record, it emerges that the criminal law was set into motion by P.W.1. On 10.09.2013, as usual, she went to the house of Yashodhamma for milk vending and there was no response. She got suspicion and went inside the house as the door was kept open and saw that Yashodhamma was lying dead on the floor near the kitchen. On 10.09.2013, as usual, she went to the house of Yashodhamma for milk vending and there was no response. She got suspicion and went inside the house as the door was kept open and saw that Yashodhamma was lying dead on the floor near the kitchen. She informed the neighbours and the children of the deceased who were admittedly residing at Bengaluru. The Police came to the spot, enquired P.W.1 and took complaint from her as per Ex.P.1. A criminal case came to be registered against unknown persons for the offences punishable under Sections 302 and 397 of the IPC. Thereafter, the police, during the course of investigation arrested accused No.2 on 24.09.2013. On the basis of the voluntary statement-Ex.P.20 of the accused No.2, police came to know the involvement of accused No.1 in commission of the offence and arrested the accused No.1 on 25.09.2013. On the basis of the voluntary statement of the accused No.1 as per Ex.P.21, the police secured the panch witnesses and proceeded to the house of P.W.18-Kempegowda and seized M.O.13-stereo at the instance of accused No.1. When the accused persons were on direction by Police, opened stereo box-M.O.13, wherein M.O.6-gold chain, M.O.7-four gold bangles, M.O.8-a pair of ear studs and M.O.9-mobile phone of the deceased were hidden and the same were seized under Ex.P.4. Thereafter, police completed the investigation and filed charge sheet against accused Nos.1 and 2. 16. In the light of the above material facts, as rightly argued on behalf of the appellant, the entire case of the prosecution rests on circumstantial evidence. The evidence on record and the call records do not conclusively establish that the accused Nos.1 and 2 were near the place of the incident as on the date of the incident. More over necessary certificate as required under Section 65B of the Indian Evidence Act, 1872, is not produced and therefore, electronic evidence would not prove the case of the prosecution in establishing the last seen theory. In the case on hand, accused No.1 is the neighbour of the deceased and their houses are situated opposite to each other. Therefore, even if the call records is taken into consideration, presence of the accused in the vicinity is natural in view of the fact that the of house of accused and deceased are situated opposite to each other. Further, there is no other evidence to prove last seen theory. Therefore, even if the call records is taken into consideration, presence of the accused in the vicinity is natural in view of the fact that the of house of accused and deceased are situated opposite to each other. Further, there is no other evidence to prove last seen theory. None of the prosecution witnesses have deposed about the motive for the incident. The only circumstance that prosecution relied upon is recovery of gold ornaments i.e., M.Os.6 to 8 at the instance of accused Nos.1 and 2 from the house of P.W.18, under Ex.P.4. In a matter of this nature, especially where the case is based on circumstantial evidence, recovery of gold ornaments at the instance of accused assumes significant importance and it is a very strong circumstance. But, that itself will not be sufficient enough to infer that accused and accused alone has committed the offence of murder of deceased. 17. It is well established principle of law that any amount of suspicion would not take the place of proof and prosecution has to travel a long distance between may be proved and actual proof. Therefore, in the absence of any clinching evidence on record to establish the motive, preparation and commission, in order to establish the nexus between recovery of M.Os.6 to 8 and death of deceased having been in the same incident, the Charge under Section 302 of the IPC looses its significance, since no prosecution witnesses have spoken about involvement of accused Nos.1 and 2 in the incident to explain nexus between death of Yashodhamma and accused Nos.1 and 2. This takes us to next aspect i.e., recovery of M.Os.6 to 9. 18. It is pertinent to note that there is no claim made by accused No.1 as to ownership of M.Os.6 to 9. M.Os.6 to 8 being valuable gold ornaments found in the house of P.W.18 hidden in M.O.13 clearly indicates that accused No.1 alone had the knowledge of hiding of ornaments M.Os.6 to 8 in M.O.13. None else would have known this fact. Therefore, to that extent circumstance as to recovery stands proved. There is some force in the arguments of learned Senior Counsel that while recording the statement of accused under Section 313 of the Code of Criminal Procedure, no specific question is put to the accused persons as to recovery of M.Os.6 to 8 hidden in M.O.13. Therefore, to that extent circumstance as to recovery stands proved. There is some force in the arguments of learned Senior Counsel that while recording the statement of accused under Section 313 of the Code of Criminal Procedure, no specific question is put to the accused persons as to recovery of M.Os.6 to 8 hidden in M.O.13. However, mere non questioning about incriminating circumstance alone would not cause serious dent to the case of the prosecution in the absence of any prejudice caused to the accused during trial. 19. As contemplated under Section 27 of the Indian Evidence Act, discovery of fact, at the instance of accused whether it amounts to confession or not, which is in the knowledge of the accused who is in custody may be proved against the accused. The Trial Court, on cumulative consideration of the entire evidence on record, found that no materials are found against accused No.2 to convict him for the Charges leveled against him and as such, acquitted him in the very same judgment. 20. Admittedly, State has not preferred any appeal against the order of acquittal recorded by the trial Court in the impugned judgment as against accused No.2. It is pertinent to note that the charge was framed by invoking Section 34 of IPC which pre-supposes the alleged sharing of common intention by accused Nos.1 and 2. In view of the fact of non-filing of appeal against the order of acquittal by the State, Sri Hashmath Pasha, learned Senior counsel contended that the appellant before this Court is also entitled for order of acquittal. The said submission of the learned counsel for the appellant cannot be brushed aside lightly. 21. However, in the absence of evidence on record, the trial Court recording an order of acquittal insofar as a particular accused, and State not appealing against such accused, it would not efface the action attributable to yet another accused in the same incident; more so, when sufficient evidence is available against that particular accused. 21. However, in the absence of evidence on record, the trial Court recording an order of acquittal insofar as a particular accused, and State not appealing against such accused, it would not efface the action attributable to yet another accused in the same incident; more so, when sufficient evidence is available against that particular accused. In the case on hand, there is sufficient material as against accused No.1, especially, recovery of material objects 6 to 9 which were hidden in M.O.13 from the house of PW.18 under Ex.P4 -mahazar and non-claiming of ownership of M.Os.6 to 8 by accused No.1; not offering any explanation whatsoever about M.Os.6 to 8, the argument of learned counsel for the appellant that accused No.1 should also be acquitted by taking note of acquittal of accused No.2, cannot be countenanced in law. 22. From the above discussion, on cumulative consideration of the material on record, we are of the considered opinion that the prosecution evidence is hardly sufficient to establish any one of the ingredients much less all ingredients to attract offence punishable under Sections 302 and 449 of the Indian Penal Code. Therefore, the impugned judgment to that extent needs to be set-aside. 23. Another interesting fact that is to noticed by us in this Appeal is that the Trial Court proceeded to frame the Charge under Section 397 of the Indian Penal Code. For ready reference, Section 397 of IPC is culled out hereunder: “397. Robbery, or dacoity, with attempt to cause death or grievous hurt-If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.” 24. On careful reading of Section 397 of IPC, it is crystal clear that the said provision does not contemplate any substantive offence. It is only a punishment Section and not a charging Section. Therefore, in the absence of charge under Section 392 or 395 of IPC, the charge under Section 397 alone cannot be maintained against the accused. Section 397 IPC only prescribes a minimum punishment of seven years for the proved of offence either under Section 392 or 395 of IPC. Charge under Section 397 of IPC, simpliciter is a defective charge. Therefore, in the absence of charge under Section 392 or 395 of IPC, the charge under Section 397 alone cannot be maintained against the accused. Section 397 IPC only prescribes a minimum punishment of seven years for the proved of offence either under Section 392 or 395 of IPC. Charge under Section 397 of IPC, simpliciter is a defective charge. Offence under Section 397 of IPC must always be framed along with Section 392 or 395 of IPC as the case may be. On this regard, our view is fortified by the dictum of the Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Ilyas reported in (2009)1 SCC 365 , wherein, at paragraphs 10 and 11 it held as under: "10. Learned counsel for the respondent on the other hand submitted that Section 397 does not speak of any substantive offence. The factual scenario has been correctly analysed by the High Court. Therefore, no person can be charged or convicted under Section 397 alone. It regulates the punishment in a given situation. The emphasis is on use of deadly weapon. The conclusions arrived at by the High Court are absolutely sketchy. It came to abrupt conclusions that the accused must have been shown to the witnesses. There is no foundation to such a plea. First information report was lodged under Section 394 IPC and charge was accordingly framed. Because of the use of deadly weapon, the trial court convicted the accused under Section 397 IPC. The trial court could have altered the charge, but that was not done. The High Court could have altered the conviction and imposed adequate sentence. There was no prejudice involved. 11. Since the High Court's reasonings were perverse the impugned judgment is set aside. However, the respondent is convicted for offence punishable under Section 394 IPC for which he was originally charged. He is sentenced to undergo rigorous imprisonment for 5 years. He shall surrender to custody forthwith to serve the remainder of sentence." 25. Applying the above principles to the case on hand, the Trial Court was not justified in framing the Charge against the accused for the offence punishable under Section 397 of the IPC, alone. The material on record depicts that the Charge should have been under Section 392 and also under Section 397 of the Indian Penal Code. Applying the above principles to the case on hand, the Trial Court was not justified in framing the Charge against the accused for the offence punishable under Section 397 of the IPC, alone. The material on record depicts that the Charge should have been under Section 392 and also under Section 397 of the Indian Penal Code. In the absence of Charge under Section 392, Charging only under Section 397 of the IPC is therefore, incorrect and to that extent, the Trial Court erred in law in framing the proper Charge. Be that as it may, the accused persons also did not oppose the framing of charge under Section 397 of the Indian Penal Code nor took any steps in seeking alteration of the Charge, but participated in the Trial. Nevertheless, the material on record clearly depicts that the Charge should have been framed under Sections 392 and not under Section 397 of the IPC only. 26. It is settled principle of law that whenever the charge is framed for higher offence, the Court retains the power to convict an accused for a lesser offence even in the absence of a charge being framed for lesser offence. The same power can also be exercised by this Court being the Appellate Court and action attributable to the accused in the case on hand can be punished if not under Section 302 IPC, but under Section 392 of IPC. In view of the recovery of M.Os.6 to 8 being the valuable gold ornaments and M.O.9 being mobile phone belonging to the deceased which was recovered under Ex.P4 -mahazar as is deposed to by PW.18 mahazar witness to Ex.P4, who did not posses any previous enmity or animosity against the accused; non-explanation of accused and non-claiming of ownership over M.Os.6 to 9 which were hidden in M.O.13, it must be inferred that gold ornaments are robbed by accused No.1. Therefore, we are of the considered opinion that the material available on record would establish necessary ingredients to attract the offence under Section 392 of IPC and no material is found so as to convict the accused for the offence punishable under Section 302 of IPC. 27. The Hon'ble Supreme Court in the case of Rajkumar @ Raju vs. State (NCT of Delhi reported in AIR 2017 SC 614 , at paragraphs 12 and 13, held as under: “12. 27. The Hon'ble Supreme Court in the case of Rajkumar @ Raju vs. State (NCT of Delhi reported in AIR 2017 SC 614 , at paragraphs 12 and 13, held as under: “12. The facts in Sanwat Khan [Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54 : 1956 Cri LJ 150] bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of PW 12 is to be discarded on the ground that such evidence is vague (there is no mention of the date on which PW 12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16-9-1991) the last seen theory built up on the evidence of PW 5 and PW 7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that PW 5 and PW 7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12-9-1991 and that they were going away to some other place. Even if the evidence of PW 12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of PW 5 and PW 7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused. 13. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming.” 28. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming.” 28. Applying the above principles to the case on hand, the prosecution has not propounded that there was use of deadly weapon in the incident. What has been seized is only towels marked at M.Os 1 and 2. Seizure of towels is hardly sufficient to establish that the act of murder and robbery have taken place in the same transaction. 29. From the above discussion, we conclude that the accused has made out ground to interfere with the impugned judgment of conviction and order of sentence and is entitled to an order of acquittal for the offences punishable under Sections 302 and 449 of the IPC. However, material on record especially receiving of gold ornaments (M.Os.6 to 8) having been established, the appellant should be convicted for the offence punishable under Section 392 of the IPC. Accordingly, we pass the following: ORDER (i) The Criminal Appeal filed by the appellant/ accused No.1 is hereby allowed in part. (ii) The impugned judgment of conviction and order of sentence dated 10.11.2017 made in S.C.No.56/2014 on the file of the VI Additional District and Sessions Judge, Tumakuru, is hereby set-aside. (iii) The appellant/accused No.1 is hereby acquitted for the offences punishable under Sections 302, 397 and 449 of the Indian Penal Code. (iv) The appellant/accused No.1 is hereby convicted for the offence punishable under Section 392 of the Indian Penal Code and the sentence already undergone by the appellant/accused No.1 is treated as the period of imprisonment for the offence punishable under Section 392 of the Indian Penal Code and the appellant/accused No.1 is sentenced to pay fine of Rs.2,00,000/-, in default, to undergo simple imprisonment for a period of two years. (v) In exercise of our Appellate powers under the provisions of Section 357(3) of the Code of Criminal Procedure, out of the fine amount of Rs.2,00,000/-(Rupees two lakhs only), three daughters of the deceased shall be paid Rs.50,000/-(Rupees fifty thousand only) each, as compensation, after proper identification. The remaining amount of Rs.50,000/-(Rupees fifty thousand only) shall vest with the State towards defraying expenses. The remaining amount of Rs.50,000/-(Rupees fifty thousand only) shall vest with the State towards defraying expenses. The learned District Judge shall ensure prompt payment of the compensation amount to the daughters of the deceased, on proper identification. (vi) Registry is directed to return the Trial Court Records, forthwith. (vii) The jail authorities are directed to release the appellant/ accused No.1 immediately after production of receipt for having deposited the fine amount. I.A.No.1/2018 is allowed vide separate orders.