The recoveries at the instance of the accused and the seriousness of the offence under S. 396, IPC were crucial in establishing the accused's complicity and determining the quantum of sentence.

( 1 ) THE first of these three appeals, has been preferred by the five accused persons in Sessions Case No. 9/95 which was tried by the learned Addl. Sessions Judge, Kodagu. The Criminal Appeal 718/96 has been preferred only by accused No. 2 and is a Jail Appeal , Crl. Appeal No. 835/96 has been preferred by accused Nos. 4 and 5 and is also a Jail Appeal. This Court appointed learned Advocate Mr. Jagadish Patil as amicus curiae in Crl. A. 835/96. Suffice it to say, that all the accused persons have been duly represented before us. The five accused originally stood charged with an offence punishable under S. 302, IPC and briefly stated, the allegation was that acting conjointly, these persons are alleged to have hired a jeep bearing No. KA 12 M 1474 on the night of 2/3-10-94 and that shortly thereafter they strangulated the driver of the jeep by the name of Yusoof and threw his body by the roadside at Nallihudikeri village and that they thereafter made away with the jeep. It is also alleged that the wrist watch of the deceased was taken away and it is the pros-ecution case that the wrist watch in question as also the jeep and the stepney of the jeep, the jack, the lever and the spanner were all recovered pursuant to statements made by the accused persons while they were in custody. The prosecution relies very heavily on the recoveries because essentially, this is a case of circumstantial evidence in so far as there is no eye-witness to the actual commission of the act of strangulation. The accused came to be arrested on 15-10-1994 and after the completion of the investigation, they were put on trial before the Sessions Court. The prosecution examined as many as 37 witnesses, many of whom are formal witnesses. The prosecution also relied on Exs. P-1 to P-26 as also the material objects MOs. 1 to 14. It is relevant for us to mention here that having regard to the complexion of the case, the charge was thereafter altered to one under S. 396, IPC. The learned trial Judge found all the five accused guilty of the offence with which they were charged, convicted them and sentenced them to suffer rigorous imprisonment for life. The present set of appeals are directed against that conviction and sentence.

( 2 ) AT the hearing, the accused have been represented by learned advocate Mr. H. S. Chandra Mouli and the learned advocate Mr. Jagadish Patil, appointed amicus curiae and the State had been represented by the learned Senior Prosecutor Mr. B. R. Nanjundaiah. The record of the case is relatively heavy and we have been very ably assisted by the learned advocates who have represented the two sides and as we shall presently point out, apart from an elaborate debate on several of the factual aspects, the case does involve several points of law which have also been well researched and expounded.

( 3 ) MR. Chandramouli did point out to us at the commencement of his submissions that the offence punishable under S. 396, IPC is a far more serious offence than the one of dacoity with which the accused were originally charged and he therefore submitted that the alteration of the charge at a subsequent stage of the trial would vitiate the entire proceeding. We have heard the learned counsel on both sides as regards this aspect of the case but we do not see much justification for this grievance being made. It is well settled law that if the charge is altered, that the accused must be afforded a full opportunity of meeting that charge even if this involved recalling of the witnesses because no prejudice should ultimately occur. This is the ultimate test that emerges through an interpretation of the relevant provisions and the case law and from that point of view, we have carefully ascertained first of all as to what was the original charge and to what was the altered one. One of the original charges was under S. 302, IPC which is as serious an offence as the one contemplated under S. 396, IPC in so far as the quantum of punishment is con