P. LAKSHMANA REDDY, J. ( 1 ) THIS is an appeal filed against the conviction and sentence dated 30-9-2005 in S. C. No. 234 of 2004 on the file of the iii Additional Sessions Judge (Fast Track court), Asifabad. ( 2 ) BRIEF facts of the case are: the Circle Inspector of Police, Asifabad filed this case against the appellant-accused alleging that on 9-7-2003 at about 9 a. m. the appellant-accused committed the murder of volvoji Indara as the said Indara, a widow has developed illicit intimacy with his brother balagoud on account of which frequent quarrels between Balagoud and his wife were occurred. It is also alleged that the appellant-accused after hacking the deceased in her house with an axe came out of the house shouting that he killed the deceased as the deceased was spoiling marital life of his brother and on hearing those cries, the neighbours, daughter-in-law and co-brother-in-law of the deceased came out and went inside the house and found her with bleeding injuries on her body. It is further alleged that on 14-7-2003, the Inspector of Police arrested the accused in the house and the accused made a confession during the interrogation and on his questions, M. Os. 1 to 5 were recovered. Prosecution alleged that the accused committed an offence punishable under Section 302 of the Indian Penal Code. ( 3 ) ON the said allegations, the learned magistrate took the case on file and after observing all formalities duly committed the case to the Court of Sessions, Adilabad district by virtue of the committal Order passed under Section 209 of the Criminal procedure Code. ( 4 ) THE learned Sessions Judge, Adilabad took the case on file as S. C. No. 234 of 2004 and made over the same to the 111 Additional sessions Judge (F. T. C.) Asifabad for trial. ( 5 ) THE learned III Additional Sessions judge, (F. T. C.) Asifabad after hearing both sides framed a charge under Section 302 of the Indian Penal Code against the appellant-accused, read over and explained to him to which he pleaded not guilty and claimed to be tried. ( 6 ) DURING the trial, the prosecution has examined P. Ws. 1 to 19 and got marked exs. P-1 to P-21 and M. Os. 1 to5 were marked. ( 6 ) DURING the trial, the prosecution has examined P. Ws. 1 to 19 and got marked exs. P-1 to P-21 and M. Os. 1 to5 were marked. After prosecution evidence was closed, the accused was examined under Section 313 of the Criminal Procedure Code during which he described the incriminating evidence found against him as false. He did not examine any witness on his behalf. His case is one of total denial. ( 7 ) CONSIDERING the evidence adduced on behalf of the prosecution and the total denial of the accused-appellant, the learned Judge found the accused-appellant guilty of the offence punishable under Section 302 of the indian Penal Code holding that there is circumstantial evidence corroborated by the confession of the accused leading to the recovery of M. Os. 1 to 5. The learned Judge has convicted the accused-appellant for the offence punishable under Section 302 of the indian Penal Code and sentenced him to under go Imprisonment for Life and also to pay a fine of Rs. 200/ -. Aggrieved by the said conviction and sentence, the accused preferred the present appeal contending that , the judgment of the trial Court is contrary to law, weight of the evidence and probabilities of the case. The learned Judge failed to note the circumstances relied on by the prosecution having not been proved by any legal and reliable evidence. The learned judge was wrong in holding that the motive was established by the prosecution. The learned Judge failed to note the evidence of p. Ws. 1 to 3 and 5 to 8 is only hear say evidence and it cannot be relied on. The extra-judicial confession made by P. W. 9 is not true. The learned Judge failed to see that p. W. 18 investigation officer in his cross-examination clearly stated that he had not examined P. W. 9. The learned Judge should have seen that the testimony of P. W. 9 is not reliable because there is political rivalry between P. W. 9 and the accused. The learned judge should have seen that the evidence of p. W. 13 panch witness for recovery cannot be relied upon as he is a stock witness for the police. There are discrepancies between the evidence of P. W. 16 and P. W. 18. The learned judge should have seen that the evidence of p. W. 13 panch witness for recovery cannot be relied upon as he is a stock witness for the police. There are discrepancies between the evidence of P. W. 16 and P. W. 18. The learned judge should have seen that the blouse of the deceased M. O. 4 is blue in colour, where as in Ex. P-21 F. S. L Report, the blouse was black in colour. The learned Judge also failed to see that all the circumstantial witnesses were planted by the prosecution. The learned judge should have seen that P. W. 10 was treated hostile by the prosecution. ( 8 ) THE learned counsel-Ms. A. Gayathri reddy appearing for the appellant-accused vehemently contended that the entire prosecution case has been crooked up on the next day planting witnesses and that though the statements of the witnesses were recorded under Section 164 by the Magistrate, no statement was produced before the Court or supplied the copies of the statements to the accused. Therefore, adverse inference has to be drawn against the prosecution. In. support of hercontention, the learned counsel relied on the decision of this Court reported in sivakoti Daveedu v. State 2005 (2) ALT (Crl.) 240 (D. B. (A. P. ). wherein a division bench of this Court held that as the statements of witnesses recorded by the Magistrate under section 164 of the Criminal Procedure Code are not produced before the Court or given to the accused, adverse inference has to be drawn against the prosecution and conviction and sentence are liable to be set aside. ( 9 ) THE learned counsel for the appellant-accused further submitted that there is no direct evidence to show that the accused killed the deceased and that the prosecution failed to establish the motive for the accused to kill the deceased and that even if it is assumed that the prosecution has established that the deceased had illicit intimacy with the brother of the accused, from that circumstance itself it cannot be said that the accused had motive to kill the deceased. The learned counsel further submitted that when the incident said to have taken place at 9 p. m. , till next day, nobody reported in the police Station and as per the evidence of p. W. 17, who is scribe of the report Ex. The learned counsel further submitted that when the incident said to have taken place at 9 p. m. , till next day, nobody reported in the police Station and as per the evidence of p. W. 17, who is scribe of the report Ex. P-7, he wrote a report to the dictation of the police and the person who said to have given the information to the police is not examined. The learned counsel further submitted that the evidence of P. Ws. 3, 5, 6, 7 and 9 is suffering from improbabilities as they did not try to catch hold of the accused. It is further submitted that it is in the evidence of witnesses that there is no electricity supply in the village during the night time and it was a dark night and there was drizzling and under these circumstances it is impossible for them to see the accused much less with bloodstained axe. She further submitted that on the basis of hearing of the alleged shouts, it cannot be concluded that the accused killed the deceased, who caused injuries to the deceased. ( 10 ) THE learned counsel for the appellant further submits that there are several suspicious circumstances which raised reasonable doubt and the said doubt shall be given to the accused and hence the prosecution has failed to prove its case beyond all reasonable doubt and the conviction and sentence are liable to be set aside. ( 11 ) ON the other hand, the learned Public prosecutor supported the judgment of the trial Court. ( 12 ) THE points that arise for determination in this appeal are (1) whether the prosecution succeeded to prove beyond doubt that the death of the deceased was homicidal death? (2) Whether the prosecution has succeeded to prove beyond all reasonable doubt that the accused is responsible for the homicidal death of the deceased? (3) Whether the conviction and sentence are sustainable in law? (4) To what result? ( 13 ) P. WS. 1 to 3, 5 to 8 have categorically stated that all of them went to the scene of offence and found the deceased lying dead on the cot with bleeding injuries. (3) Whether the conviction and sentence are sustainable in law? (4) To what result? ( 13 ) P. WS. 1 to 3, 5 to 8 have categorically stated that all of them went to the scene of offence and found the deceased lying dead on the cot with bleeding injuries. Investigating officer also stated that he found the dead body in the house of the deceased and he held inquest over the dead body of the deceased and at the time of inquest, the inquest panch opined that the death of the deceased was homicidal. The inquest panchas P. Ws. 11 and 12 stated that they found the injuries on the dead body and in theiropinion the deceased died of the injuries. It is in the evidence that after the inquest was over, the doctor P. W. 16 conducted post mortem examination on 10-7-2003 at 3 p. m. on the requisition of the Inspector of Police (P. W. 18 ). He found the following injuries: "1. Incised wound 2- inches x 1 x 1 inch over head at left tempro peretio region brain depth. The causative weapon is heavy weapon with small striking surface. The injury is antemortem in nature. 2. incised wound 5 x 1- x 5 inches. Brain depth over middle of the left ear across neck brain and bone depth. The cau rative weapon is heavy weapon with small striking surgace. The injury is antimortem. 3. Incised wound 2 x 1 - x 3- inches bacise of neck below hair line bone depth. The caurative weapon is heavy weapon with stall striming surface. The injury is antemortem in nature. 4. Incised wound 2 x 1 x 1 inches over left upper arm lateral side of muscle depth. The caustive weapon is heavy weapon with small striking surface. The injury is antemortem in nature. " ( 14 ) THE doctor further opined that the death of the deceased was due to cardio respiratory arrest due to acute hemorrhage and contusion and laceration of brain following the above injuries. He further opined that the said injuries could have been caused by an axe similar to M. O. 1. Hence we have no hesitation to hold that the death of the deceased is homicidal death. ( 15 ) POINT No. 2:- The burden is on the prosecution to prove that the accused is responsible for homicidal death of the deceased. He further opined that the said injuries could have been caused by an axe similar to M. O. 1. Hence we have no hesitation to hold that the death of the deceased is homicidal death. ( 15 ) POINT No. 2:- The burden is on the prosecution to prove that the accused is responsible for homicidal death of the deceased. The prosecution failed to produce any direct evidence. Prosecution relied on the circumstantial evidence. ( 16 ) ACCORDING to prosecution, the deceased who was widow had developed illicit intimacy with the brother of the accused and on account of that there were frequent quarrels between his brother, his brothers wife and the deceased and therefore, the accused who was the brother of Balagoud decided to kill the deceased in order to save the family of his brother Balagoud. Prosecution relied on the further circumstances that on 9-7-2003 at about 2 p. m. there was a quarrel between the deceased and the wife of Balagound in the field where Balagoud and the deceased were talking and further the said quarrel continued till evening at the house of the deceased and when Balagoud went there and beat his wife and brought back her and that on the same night the murder took place. P. W. 1 mother-in-law of the deceased and P. W. 2 co-daughter-in-law of the deceased have stated that 8 years prior to the death of deceased, she lost her husband and developed illicit intimacy with the brother of the accused. The other witnesses examined for the prosecution also stated the said fact and therefore, we are of the considered view that the prosecution succeeded to prove that the brother of the accused namely Balagoud had illicit intimacy with the deceased. That itself is not sufficient to hold that the accused had sufficient motive to kill the deceased. Prosecution relied on the other circumstances that the accused himself after killing the deceased came out of the house shouting that he killed the deceased. The witnesses P. Ws. 1 to 3,5 and 7 have stated that they heard the shouting of the accused and on hearing those cries, they came out of the house at 9 p. m. and thereafter they went inside the house of the deceased and found the deceased lying dead. The witnesses P. Ws. 1 to 3,5 and 7 have stated that they heard the shouting of the accused and on hearing those cries, they came out of the house at 9 p. m. and thereafter they went inside the house of the deceased and found the deceased lying dead. It is elicited in the cross examination of P. W. 5 that there was no electricity supply in the village and there was darkness in the village. P. W. 7 also admitted that there were heavy rains on that night and there were nc movement of the men in the village at that time. One of them have stated that they have seen the accused shouting, but all of them have stated that they only heard the shouts of the accused. The alleged shouts cannot be treated as a confession in view of the decision in Pandru Khadia v. State of Orissa1992 Crl. LJ. 762. The learned trial Judge also accepted that the said shouting cannot be treated as a confession, but the learned Judge has relied on the said circumstance. None of the witnesses have stated that they have seen the accused coming out of the house of the deceased. So it is not safe to come to the conclusion that the accused has killed the deceased. Further above all, the statements made by these witnesses before the magistrate have not been produced before the Court. The copies were also not furnished to the accused. There is absolutely no explanation by the prosecution as to why the statements have not been produced before the Court. As seen from the evidence of p. W. 19, he collected certified copies of 161 cr. P. C. statements of witnesses Vuppula venkatesham, P. Ws. 3, 4, 5, 6, 7 and 9, but, those statements were not produced before the Court. The prosecution failed to explain why their statements were not produced before the Court. In Sivakoti Daveedus (1st cited supra), the division bench of this court held that when the statements recorded under Section 164 of the Cr. P. C. are not furnished to the accused and are not produced in the Court, adverse inference can be drawn against the prosecution and the conviction and sentence can be set aside. In fact in the cited case, there were direct witnesses also, whereas, in the instant case, there is no direct evidence. P. C. are not furnished to the accused and are not produced in the Court, adverse inference can be drawn against the prosecution and the conviction and sentence can be set aside. In fact in the cited case, there were direct witnesses also, whereas, in the instant case, there is no direct evidence. The circumstance of the accused shouting that he killed the deceased is not in accordance with the probabilities also. P. W. 9, Upa-Sarpanch of the village on whose evidence, the trial Court has placed much reliance, stated that the accused while going out informed him that the deceased was having illicit intimacy with his brother and thereby she was spoiling the marital life of his brother and so he would go and kill her and after killing the deceased, accused came out at 9 p. m. with blood stained axe shouting that he killed the deceased. This witness did not choose to prevent the accused from going to the house of the deceased nor tried to catch hold of the accused to hand over to the police nor reported the same to the police immediately. Therefore, his evidence is highly improbable. Further, it was elicited in the cross examination thatthere is political rivalry between him and the accused. Under those circumstances, it is not safe to rely on the evidence of P. W. 9. The evidence of the other witnesses that they heard the shoutings of the accused is also improbable to believe. Further there is delay in giving report to the police. Further as seen from the evidence of the doctor, the deceased died on account of the hemorrhage creates a suspicion that nobody attended on the deceased immediately. The evidence of P. Ws. 1 to 8 is that they immediately rushed to the house of the deceased. If their evidence is true, they would have prevented the hemorrhage to save the life of the deceased. Therefore, their version cannot be considered. Regarding the alleged confession leading to the discovery of M. 0. 1 axe, the evidence adduced on behalf of prosecution is not reliable and trust worthy. Both the panch witnesses p. Ws. 13 and 14 admitted that by the time they went to the house of accused, the panchanama was already written. P. W. 14 stated that he signed in the recovery panchanama in the Police Station. 1 axe, the evidence adduced on behalf of prosecution is not reliable and trust worthy. Both the panch witnesses p. Ws. 13 and 14 admitted that by the time they went to the house of accused, the panchanama was already written. P. W. 14 stated that he signed in the recovery panchanama in the Police Station. Further according to the prosecution, the accused was arrested on 14-7-2003. The offence took place on 9-7-2003. One of the inquest panchas stated that on the date of murder itself the accused went to Police Station. Therefore, we are not inclined to believe the alleged confession leading to discovery of m. O. 1. ( 17 ) IN our considered view the circumstantial evidence relied on by the prosecution is not sufficient to find the accused guilty. The accused is entitled to the benefit of doubt. Thus this point is answered in favour of the appellant-accused and against the prosecution. Accordingly, the conviction and sentence of the trial Court are not sustainable in law and liable to be set aside. ( 18 ) IN the result, the criminal appeal is allowed and the conviction and sentence imposed on the accused is set aside.