Point of law : 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.

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. 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 miscarriag