The case of the prosecution is that on 22.10.2000, between 8.15 a.m. and 8.45 a.m., some persons with an intention to commit robbery, gained entry into the house bearing No.30/2, D.V.G. Road, Basavanagudi, Bengaluru. They entered the house and assaulted the deceased Manjula, using a weapon, by cutting her neck and killed her. They robbed certain gold articles from her. When her husband PW-1-Keshav Rao returned home, from his usual morning walk, he saw his wife lying at the portico near the plants. She had sustained a grievous injury on her neck. He alongwith PW-13 viz., the brother of the deceased, shifted her to Mallya Hospital for treatment at about 9.00 a.m., However, she succumbed to the injuries at about 10.30 a.m. Various gold articles were missing. In terms of the complaint filed by PW-13, a case was registered in Basavanagudi police station, in Cr.No.345 of 2000, for the offence punishable under section 302 Indian Penal Code against unknown persons. After completing the investigation, PW-12, the Police Inspector, Basavanagudi Police Station, filed a charge sheet against five accused persons under Section 302 Indian Penal Code. Initially charges were framed for the offence punishable under section 392 r/w 394 Indian Penal Code. Thereafter, charges were re-altered against accused Nos.1 to 5 for the offence punishable under section 396 r/w 34 Indian Penal Code. The accused pleaded not guilty and claimed to be tried.

2. In order to prove its case, the prosecution examined 18 witnesses and marked 33 exhibits alongwith 14 material objects. By the impugned judgment, accused Nos.1 to 5 were found guilty for the offence punishable under sections 396 r/w 34 Indian Penal Code alongwith payment of fine of Rs.10,000/-. A reference was made by the trial court which has been numbered as Criminal Referred Case No.2 of 2011. Accused Nos.2 and 3 have filed Crl.A.No.1033 of 2011 and accused Nos.4 and 5 have filed Crl.A.No.563 of 2012.

3. The plea of the appellants is that the trial court committed an error, in misreading the evidence and the material on record. The trial court failed to consider the fact, that the prosecution has not established its case beyond all reasonable doubt, for the offences charged against them. That so far as the provision of Section 396 of IPC is concerned, there is no recovery of any weapon by the prosecution. There is no material to indicate that these five accused committed the murder as well as robbed the articles, on the deceased at the same point of time. There is no evidence to indicate that the murder has been committed by the appellants. That even the so-called recoveries are not with reference to accused Nos.1 and 5. That the recoveries against accused Nos.2, 3 and 4 have not been proved by the prosecution. Hence, it is pleaded that the appeals be allowed, by acquitting the accused.

4. On the other hand, Sri. H.N. Nilogal, learned Special Public Prosecutor, for the respondent-State, defends the same. He contends that substantial evidence has been let in, in proof of guilt of the accused. That substantial recoveries have been made from accused Nos.2, 3 and 4. That, at the behest of accused Nos.1 to 5, they were led to the scene of offence. That even though no recovery of any weapon has been made, the other material evidence on record, would clearly indicate that all the accused have committed the offence punishable under section 396 of the Indian Penal Code. Therefore, he pleads that the appeals be dismissed by upholding the judgment of the trial court.

5. Heard learned counsels and examined the records.

6. PW-1 is the husband of the deceased. He has stated in his evidence, that he would go for a morning walk every day at about 6.00 a.m. On 22.10.2000, he left home at 8.15 a.m., since it was drizzling. He returned home from his morning walk at 9.15 a.m., He saw that the portico gate was locked from inside. He banged on the portico gate. It did not open. From the said grill gate, he saw his wife M