NAIK, J. ( 1 ) THIS is an appeal filed by accused Nos. 1 and 2 challenging the order of conviction and sentence dated 15-5-2004 passed in SC no. 68/2002 by the District and Sessions Judge, Fast Tract Court-II shimoga, convicting the appellants/accused for the offences punishable u/s. 302 and 201 r/w. Section 34 of the IPC, and sentencing them to undergo rigorous imprisonment for life and to pay a fine of rs. 5000/- each, in default of payment of fine, to undergo simple imprisonment for further period of six months for the offence punishable u/s 302 r/w. 34 of IPC and further sentencing them to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 1,000/- each, in default of payment of fine, to undergo simple imprisonment for another period of three months for the offence punishable U/s 201 r/w 34 of IPC. It is ordered that substantive sentences shall run concurrently. ( 2 ) THE case of the prosectuion in brief is that: on 5-3-2002, the complainant-P. M. Rudrappa (PW. 1) had been to his garden land in Sy. No. 90 of Harobenavalli village at about 6. 00 p. m. and found the dead body of a male person aged between 25 to 30 years on the bank of Badhra Left Bank Channel abutting his garden land; he also noticed that the hands of the dead body were tied with the rope and the neck with a wire and the face and other parts were eaten away by the water animals here and there; he suspected that some one must have committed murder and thrown the dead body into channel; he went to Holehonnur police station and lodged complaint as per Ex. P 1 at about 10. 30 p. m. ; that the Police sub-Inspector of Holehonnur police Station (PW. 16), on receipt of complaint from PW. 1 registered a case in Crime No. 37/2002 and forwarded FIR (Ex. P 1 at about 10. 30 p. m. ; that the Police sub-Inspector of Holehonnur police Station (PW. 16), on receipt of complaint from PW. 1 registered a case in Crime No. 37/2002 and forwarded FIR (Ex. P16) to the jurisdictional Magistrate; the further investigation was handed over by PW 16 to the Circle Police inspector (PW17), who took over the further investigation and during the course of investigation, it came to his notice that it was Accused-appellants 1 and 2 herein who are the residents of Bhadravathi and Shimoga respectively had committed the offence of murder, he, after completion of the investigation, filed charge sheet against the accused-appellants herein for the offences punishable U/s. 302,201 r/w. 34 of IPC. It is further case of the prosecution that deceased Manjunath s/o Krishnappa of Zinklane Bhadravathi is said to have fallen in love with Varalakshmi, the sister of the accused No. 1 and was intending to marry her. Varalakshmi's marriage was already fixed with some other boy the accused-appellants apprehending that deceased manjunath might create some problem in the marriage of Varalakshmi, conspired to do away with the life of Manjunath; that on 1 -3-2002, the accused-appellants, with common intention, took deceased manjunath to the arrack shop of Shrikantegowda (PW. 13) and they made him (deceased) to drink arrack and thereafter, they took him (deceased-Manju) in Hero Puck vehicle bearing No. KA-18-6428 to Bilkikere channel of Bhadravathi around 10. 00 p. m. and tied his neck with the cable wire of a mixi tightly and caused asphyxia and thus committed murder of Manju and then thereafter, in order to conceal the evidence of murder, they tied the hands of deceased Manju with a rope and threw the dead body into Bhadra Left Bank Channel and thereby committed the offence punishable U/s. 302,201 r/w 34 of ipc. ( 3 ) THE prosecution, in support of its case, examined as many as eighteen witnesses and got marked 25 documents as Ex. P. 1 to P. 25 and eleven material objects (Mos. 1 to 11 ). On behalf of the accused appellants, except marking the portions of statement of PWs. 2 and 11, no evidence was lead in. ( 4 ) PW. P. 1 to P. 25 and eleven material objects (Mos. 1 to 11 ). On behalf of the accused appellants, except marking the portions of statement of PWs. 2 and 11, no evidence was lead in. ( 4 ) PW. 1 P. M. Rudrappa who owns the garden land abutting to channel near Harobinavalli village and who saw the dead body for the first time has deposed in his evidence that on 5-3-2002 at about 3. 00 p. m. he saw the dead body of a male person aged about 28 years in the channel and the front face of the dead body was eaten by the water animals and the neck of the dead body was tied with electric wire and the hands were tied with the rope and he lodged complaint at 5. 00 p. m. as per Ex. P. 1, on the basis of which, crime was registered against un-known person. ( 5 ) PW. 2 Raju is examined by the prosecution to establish that the deceased Manju was last seen in the company of the appellants-accused and the deceased was being taken away on a two wheeler by the appellants-accused. He has stated in his deposition that he knows deceased Manjunath; he saw the deceased Manjunath on 1-3-2002 in the arrack shop of PW. 13; on that day, two person came to the arrack shop of PW. 13 and took the de ceased Manju on the vehicle on the pretext that they had some work; with him and those two persons are before the Court and among them, the name of one person is Poshak and he does not know the name of another person; 7-8 days thereafter, the police interrogated him about the murder of manjunath and then only he came to know that Manjunatha has been murdered by tying wire. ( 6 ) PW. 3 Hanumanthappa is the uncle of the deceased Manju. He has given evidence to the effect that on 1 -3-2002 deceased Manju remained in the house of his sister upto 5. 00 p. m. and after 8. ( 6 ) PW. 3 Hanumanthappa is the uncle of the deceased Manju. He has given evidence to the effect that on 1 -3-2002 deceased Manju remained in the house of his sister upto 5. 00 p. m. and after 8. 00 p. m. , he left the house; as he was informed that Manju was missing, they made enquiry at several places and three days thereafter, a missing complaint was lodged and during the course of inquiry, Manju's friends informed him that he was in the company of one Rajanna in the arrack shop of Srikanta (PW. 13) and two un-known persons had taken away manju; after six days, he gathered information that a dead body was found in the channel near Harobinavalli and the same was kept in the hospital, he and his relatives went to the hospital and identified the said dead body as that of Manju and found that mixi wire had been tied around his neck and his hands were tied with the rope. ( 7 ) PW. 4 Krishna is the father of deceased-Manju. He has deposed that on the date of incident, deceased-Manju was in the house upto 5. 00 p. m. and he left the house at about 8. 00 p. m. As manju was missing, he made enquiry with several persons and as he could not trace Manju, he lodged missing complaint. Then thereafter, after gathering information that a dead body was in the Meggan hospital at Shimoga, he went and identified the dead body of manjunath on the basis of the clothes worn by him and he identified the pant, shirt and underwear of the deceased as Mos. 1,2 and 3, mixi Wire as MO. 4 and the rope as MO. 5. He further identified the plastic bangle and a ring on the person of Manju as M. Os. 6 and 7. He further deposed that when he made enquiry with PW. 2 Raju, he was not in a position to give the details with whom Manju had gone. ( 8 ) PW. 5 Shivappa is a panch witness for the seizure of Mos. 1 to 7 i. e. , pant (Mo. 1), Shirt (MO. 2), underwear (MO. 3), Mixi wire (MO. 4), rope (MO. 5), plastic bangle (MO. 6) and one ring (MO. 7)which were seized under recovery mahazar Ex. P. 3. ( 9 ) PW. ( 8 ) PW. 5 Shivappa is a panch witness for the seizure of Mos. 1 to 7 i. e. , pant (Mo. 1), Shirt (MO. 2), underwear (MO. 3), Mixi wire (MO. 4), rope (MO. 5), plastic bangle (MO. 6) and one ring (MO. 7)which were seized under recovery mahazar Ex. P. 3. ( 9 ) PW. 6 Jayalingappa is a panch witness for the spot mahazar ex. P. 4. As he has not supported case of the prosecution, he has been treated hostile. ( 10 ) PW. 7 Indushekar is a police constable who kept watch over the dead body and after post mortem handed over the body to the relatives of Manju and thereafter produced Mos. 1 to 7 which were found on the dead body before the investigation officer. ( 11 ) PW. 8 Basavaraju is the Head Constable who apprehended the accused-appellants on 6-3-2002 at about 7. 45 p. m. near the shop of one Sreenivas of Jinklane street and produced them before the investigation officer along with his report as per Ex. P. 5. ( 12 ) PW. 9 Manjunatha is another police constable. He has stated in his evidence that he carried the seized article MO. 4 (Mixi wire) to the Doctor Rajashekarappa for examination and submitted a report as per Ex. P. 6. ( 13 ) PW. 10 Sadashivappa is a resident of Jinklane area. He has stated in his evidence that he knows Kumar, Raja (PW. 2), Manju (deceased), as they were doing painting work with him; that he saw the deceased Manju in the company of PW. 2 in the arrack shop of srikantaiah (PW. 13) on 1 -3-2002. He further deposed that on the next morning, the mother of deceased-Manju enquired with him about the whereabouts of Manjunath; that Manjunatha had fallen in love with a girl named Varalakshmi who had five brothers namely, manjunatha, Sashi, Poshaka Dantha, Parashuram and another elder brother; that as deceased Manju had fallen in love with the sister of appellant-accused No. 1, her brothers picked up quarrel with deceased Manju and the police had intervened and resolved the dispute. Even then, the deceased was insisting that he would marry Varalakshmi, the sister of appellant-accused No. 1 and that the accused No. 1 had informed PW. Even then, the deceased was insisting that he would marry Varalakshmi, the sister of appellant-accused No. 1 and that the accused No. 1 had informed PW. 10 that he was against the marriage of his sister with deceased Manju; later PW-10 learnt that Manju; was done to death by tying wire around his neck and his body was thrown into channel. ( 14 ) PW. 11 Jaya who is running a hotel near the arrack shop of sreekantaiah (P W. 13) in Jinklane area has stated in her evidence that she knew Kumar, Raja, Manju, Muruga and accused Poshak and venkatesh as they were her customers and they were frequently visiting her shop. On the date of incident, she found Raju (PW. 2) and Manju (deceased) were fully drunken and they had been to her shop to eat bondas, then thereafter, the accused-appellants came to her hotel and took deceased-Manjunath at about 8. 00 p. m. on a two wheeler. Then thereafter, she learnt that Manju died. ( 15 ) PW. 12 Dr. K. N. Rajashekharappa is the Medical Officer who has conducted post mortem examination over the dead body of deceased Manju. He has stated in his evidence that on 6-3-2002, on the requisition of Holehonnur Police Station, he conducted post mortem examination over the dead body of un-knownmale person aged between 28 to 30 years. After conduct of postmortem examination, he preserved the viscera for chemicalanalysis and also preserved tissue underneath ligature mark. On examination he found that the hair on the scalp was scanty and easily were coming out, body was swollen, blisters were present all over body, skin pealed off in some places, veins were prominent over the body, the structure around mouth and on both ears were eaten away by water animals, the mandible, teeth were exposed, the tongue was swollen and caught between the teeth. He issued post mortem examination report as per Ex. R7. After receipt of chemical examination report, he has rendered opinion stating that the cause of death is due to asphyxia. He has further stated that the ligature material situated around the neck and twisted and removed while conducting the examination and it was plastic electric wire and he has identified the same as MO. 4 and the opinion rendered by him is marked as Ex. P. 8. He has further stated that the ligature material situated around the neck and twisted and removed while conducting the examination and it was plastic electric wire and he has identified the same as MO. 4 and the opinion rendered by him is marked as Ex. P. 8. ( 16 ) P W. 13 Srekantegowda is the owner of toddy shop in Jinklane area. He has deposed that Raju (PW. 2), the deceased Manju, one muruga, Sadashiva and others were frequently visiting his toddy shop that on the date of incident he had seen Manju in his shop along with raju (PW. 2) and PW. 2 Raju and Manju consumed two packets of arrack and at that time when they were consuming arrack, some one came and took Manju and as he was sitting in the cash counter, he did not notice the persons who had taken Manju. As he has not supported the case of the prosecution, he has been treated hostile. ( 17 ) PW. 14 Jaffermohiddin is a panch witness for the recovery mahazar Ex. P. 14, under which, one Hero Puch motor cycle, Mixi electric wire, half burnt cigarettes pieces (Mos. 4,8,9 and 10) were seized at the instance of the accused person, on the basis of the voluntary statements made by the accused as per Ex. P. 20 and P. 21. ( 18 ) PW. 15 K. S. Mukkannaiah is the Assistant Executive Engineer. He has stated in his evidence that the investigation officer forwarded a mixi along with electric wire to him and sought for his opinion. On verification, he found that the said Mixi was not in working condition and the wire was also found to be unfit for use and accordingly he furnished his report as per Ex. P. 15 and he has identified the Mixi and wire as Mos. 8 and 4 respectively. ( 19 ) PW. 16 K. Onkarappa who was the Station House Officer at relevant point of time has deposed that on 5-3-2002 at about 7. 00 p. m, the complainant PW. 1 appeared in the police station and lodged complaint as per Ex. P. 1 and on the basis of which, he registered a case in crime No. 37/2002 and forwarded FIR. , (Ex. 00 p. m, the complainant PW. 1 appeared in the police station and lodged complaint as per Ex. P. 1 and on the basis of which, he registered a case in crime No. 37/2002 and forwarded FIR. , (Ex. P. 16) to the jurisdictional Magistrate, after visiting the place were the dead body was found, he deputed two constable to watch the dead body and thereafter hand over further investigation to PW. 17, as the offence is heinous offence. ( 20 ) PW. 17 N. Lingareddy who is the investigating officer in the case he has deposed that he took over further investigation in crime no. 37/2002 from PSI. , (PW. 16), he visited the place where the dead body was lying on 6. 3. 2002 at about 6. 00 a. m. , he drew spot panchaname as per Ex. P. 2, prepared the spot sketch as per Ex. P. 17, inquest panchanama as per Ex. P. 18, got the photographs of the place and dead body as per Ex. P. 9, he forwarded the dead body for post mortem examination and seized the clothings found on the person of manjunath which were seized under Ex. P. 3, he interrogated Raja (PW. 2) on 9-3-2002 who stated before him that it is the accused-appellants herein who took the deceased with him on Hero Puch motor cycle, he recorded the statements of witnesses on 11-3-2002. He has further deposed that on 16-3-2002, his staff apprehended the accused and produced them before him along with report Ex. P. 5 and on 17-3-2002, on the basis of the voluntary statements of the accused as per Ex. P 20 and 21 he drew mahazar Ex. P. 14 under which Hero puch motor cycle (MO. 11) and half burnt cigarette pieces (MOs. 9 and 10) and after receipt of the post mortem examination report and fsl reports, and after completing the investigation, he filed charge sheet against the accused-appellants for the offences punishable u/s. 302,201 r/w. 34 of IPC. PW. 18 Dr. Chandrashekar has stated that on 4-4-2002 Police constable Basavanthappa brought sample of ligature mark with a request to furnish his opinion as to whether the ligature mark was prior to death or subsequent to death. He has stated that as the said ligature sample was fully decomposed, he could not render his opinion and accordingly, he submitted his report as Ex. P. 13. He has stated that as the said ligature sample was fully decomposed, he could not render his opinion and accordingly, he submitted his report as Ex. P. 13. ( 21 ) THE Trial Court, after conclusion of the trial and on the basis of the oral and documentary evidence placed on record, held that the prosecution has established its case beyond reasonable doubt and held that the accused-appellants are guilty of having committed the offences punishable u/s. 302,201 r/w 34 of IPC. , and sentenced them as stated herein before. ( 22 ) WE have heard Sri S. G. Bhagavan, Learned Counsel appearing for the accused-appellants and Sri G Bhavani Singh, learned SPP, appearing for the State and perused the material on record. Having regard to the contentions urged by the learned counsel and the learned SPP. , the points that arise for our consideration are: 1. Whether the finding of the trial Court that the prosecution has proved beyond reasonable doubt that the accused persons on 1-3-2002 with the common intention to murder the deceased Manjunath, S/o krishnappa took the deceased from the arrack shop of cw. 7 Shrikantegowda (PW. 13) at Zinklane, bhadravathi around 10. 00 p. m. in Hero Puch, two wheeler KA-18 6428 to Bilkikere Channel bund and tied his neck with the cable wire of a mixi and put a knot and pulled it tightly which act has resulted in asphyxia and caused death of the deceased and that they have committed such act intentionally or knowingly that their act would cause homicidal death of the deceased and thereby committed offence punishable u/s. 302 r/w. 34 IPC. , and that the prosecution has proved that the accused persons, on the said date, time and place mentioned, after murdering the deceased, had intentionally tied the hands of the deceased with a rope and threw his dead body in the Badhra Left Bank channel which runs from Bilkikere Village to Hosudi, with an intention to erase the evidence of their act of murder and thereby committed offence punishable u/s. 201 r/w. 34 IPC is justified or calls for interference in this appeal? 2. Whether sentence imposed upon the appellants calls for interference in this appeal? 3. What Order? 2. Whether sentence imposed upon the appellants calls for interference in this appeal? 3. What Order? ( 23 ) WE answer the Point No. 1 by holding that the prosecution, with the above said circumstantial evidence, has not proved beyond reasonable doubt on the basis of circumstantial evidence that forms complete chain pointing unerringly to the guilt of the accused-appellants only. Therefore, the Trial Court, has committed an error in appreciating the oral and documentary evidence in proper perspective, has arrived at a wrong conclusion that the prosecution has proved beyond reasonable doubt that it is the accused who committed murder of deceased Manjunath and thereby committed offence punishable u/s. 302,201 r/w. 34 of IPC. , and consequently, both the accused-appellants are liable to be acquitted of the charges levelled against them and consequently point No. 2 is answered in the affirmative and point No. 3 as per the final order for the following reasons: reasons ( 24 ) THE learned counsel appearing for the appellants-accused has taken us through the evidence of the prosecution and the cross-examination of the respective witnesses. As stated supra, in the absence of eyewitnesses to the incident, the case of the prosecution is mainly based upon the circumstantial evidence viz. , the witnesses (PWs. 2, 10 and 11) who had last seen the deceased Manju in the company of the appellants-accused, recovery of the material objects in the presence of panchas and the abscondence of the accused. ( 25 ) SRI S. G Bhagavan, Learned Counsel appearing for the appellants-accused vehemently contended that the circumstances must be so complete that it would exclude every other hypothesis and unequivocally point to the guilt of the accused; that the evidence of pw. 2 that he had seen the deceased on 1st March in the arrack shop of PW. 13 and that two persons took him (deceased-Manju) in a two wheeler and one of them is Poshkadantha @ Poshi and the name of the other person is not known to him and then thereafter, after a period of 7-8 days, the police had apprehended PW. 2 and they had detained him for about 10-12 days would go to establish that even the investigating agency had in fact suspected the role of PW. 2 in commission of the alleged crime; that the evidence of PW. 2 and they had detained him for about 10-12 days would go to establish that even the investigating agency had in fact suspected the role of PW. 2 in commission of the alleged crime; that the evidence of PW. 2 is unreliable, as he has stated that himself and the deceased Manju were in the arrack shop of Srikantegowda (PW. 13) at 7. 00 p. m. , and that deceased Manju had consumed two packets of arrack and then thereafter, PW. 2, deceased Manju went to the hotel of Jaya (PW. 11)to eat bonda and at that time, the appellants-accused went to the said shop and called the deceased Manju to go to Bilike; the deceased-Manju asked PW-2 to go back and that he would accompany the accused-appellants; that there is material contradiction in the evidence of PW. 2 with regard to the deceased Manju being taken by the appellants-accused and he having last seen the deceased in the company of the appellants-accused. At one point of time, he (PW. 2)has stated that the deceased-Manju was taken by the appellants-accused from the hotel of PW. 11 Jaya, whereas on the other he has stated that the appellants-accused took him from the arrack shop of pw. 13 Srikantegowda. He further contended that PW. 11 Jaya has stated in her evidence that PW. 2 Raju and deceased Manju were fully drunk and that they were in her shop at about 8. 00 p. m and it was improbable for the appellants and deceased Manju to commute 6-7 kms distance that too on a village road; that it is highly improbable for PW. 11 jaya to identify the appellants-accused, in view of her admission in the cross-examination to the effect that she had seen the appellants-accused as they were moving around in front of her shop and mat she has admitted that she did not personally know the accused-appellants; that the prosecution has utterly failed to establish any motive for the commission of the offence and the motive alleged as regards the love affair between the deceased Manju and Varalakshmi, the sister of appellant-accused No. 1 is a trivial in nature. ( 26 ) PER contra, learned State Public Prosecutor has contended that the material on record with regard to the deceased-Manju found in the company of the appellants-accused prior to his death; the deceased Manju having fallen in love with Varalakshmi, the sister of appellant-accused No. 1; that the recovery of the Mixi cable wire at the instance of the appellants-accused and Hero Pouch vehicle would clearly establish that the appellant-accused, on 1 -3-2002 with the common intention to murder the deceased Manjunath took him from the arrack shop of PW. 13 in Hero Puch to Bilkikere channel and committed his murder by tying his neck with the cable wire of a Mixi and with an intention to conceal the commission of offence, threw his dead body in the Badhra Left Bank Channel and thereby committed the offences punishable u/s. 302,201 r/w. 34 of IPC. , and the Court below, after appreciating the evidence in a proper perspective has arrived at proper conclusion and the same does not call for interference by this Court. ( 27 ) ON re-appreciation of the evidence on record we find that the evidence of PW. 1 P. M. Rudrappa is only to the effect that on 5-3-2002 he found the dead body by the side of his land in the channel, the hands of the dead body were tied with rope and there was a wire tied around the neck of the dead body and after noticing the dead body, he lodged the complaint as per Ex. P 1; that on receipt of the complaint, the police arrived at the spot and drew mahazar Ex. P. 2 for which he subscribed his signature. It is brought on record in the cross-examination of this witness mat face, nose, eyes and ears of the dead body were found eaten away by the water animals; that when he lodged complaint, it was at about 7 o' clock and that the police arrived at the scene of occurrence at 7. 00pm. This part of the cross-examination does not discredit the evidence of PW. 1 to hold that he had seen the dead body and lodged complaint to the police as per ex. P. 1 ( 28 ) THOUGH PW. 00pm. This part of the cross-examination does not discredit the evidence of PW. 1 to hold that he had seen the dead body and lodged complaint to the police as per ex. P. 1 ( 28 ) THOUGH PW. 2 Raju has stated that he saw two person taking away deceased-Manju on a vehicle, he has stated in his examination-in-chiefitsel that appellant-accused No. 1 is Poshak and he does not known the name of the appellant-accused No. 2. He has admitted in his evidence that the persons who had taken Manju on the vehicle informed him that they had some work with Manju and they had taken away Manju with them. Seven-Eight days subsequently thereafter, the police made enquiry with him. In the cross-examination, he has admitted that the police had detained him in the police station for about 10-12 days. He has stated that he has not made any statement before the police pertaining to his detention. He has stated that till 7. 00 p. m. himself and Manju were in the arrack shop of Srikantegowda (PW. 13) and they had consumed one packet of arrack and from the said shop, Manju was taken in a vehicle by two persons; that he has not made any statement as per Ex. D. 1 that himself and Manju were near the bonda shop of Jaya when the said two person had taken manju. He has also admitted in the cross-examination that he has seen the accused for the first time in the Court after he had last seen them near the arrack shop of Srikantegowda. His admission in the cross-examination that he had been detained in the police station for about 10-12 days after the date of incident would clearly establish that even the investigating agency suspected the role of PW. 2 Raju in the commission of offence and they were not sure at that stage as to who had committed the murder of Manju. ( 29 ) PW. 3 Hanumanthappa, the uncle of deceased-Manju has stated that he came to know from the friends of Manju that Manju was in the company ofpw. 2 Raju in the arrack shop of Srikantegowda and from there, two persons had taken him away and later on 6-3-2002 he learnt that a dead body was found in the channel near harobinavalli and the dead body was shifted to the hospital. 2 Raju in the arrack shop of Srikantegowda and from there, two persons had taken him away and later on 6-3-2002 he learnt that a dead body was found in the channel near harobinavalli and the dead body was shifted to the hospital. Then thereafter, himself and his sister's son went to the hospital and identified the dead body to be that of Manju. He also found the wire around the neck of Manju and the hands were also tied with rope. His evidence is only to the effect that he, after coming to know about the dead body being kept in the hospital, he went to the hospital and identified the same. The said aspect is not seriously disputed by the defence. ( 30 ) THE evidence of P W. 4, the father of deceased-Manju is only to the effect that he had seen Manju in the house at 5. 00 p. m. and he (deceased-Manju) left the house at 8. 00 p. m. and as Manju did not returned to the house, he made enquiry with PW. 2 Raju and PW. 2 raju informed him that two persons had taken Manju along with them; that he had also lodged missing complaint, but this missing complaint alleged to have lodged by Krishna, the father of the deceased is not forthcoming in the present case. PW. 4 has identified the pant, shirt, underwear, rope, plastic bangle, ring which were marked as Mos. 1 to 7. He has stated in his examination-in-chief itself that PW. 2 Raju informed him that Manju was taken on a scooter, whereas PW. 2 Raju has stated in his evidence that Manju was taken by two persons on a hero Puch. PW. 4 has stated in his cross-examination that on the date of incident, Manju was in the house at about 7. 30 or 8. 00 p. m. and he was not aware as to where Manju had gone and only after finding the dead body in the channel, he came to know that dead body was shifted to the hospital and thereafter, he went to the hospital and identified the dead body. Baring this, nothing has been elicited by the prosecution to establish the guilt of the accused persons. ( 31 ) THE cross-examination of P W. 5 who is a panch witness for seizure of Mos. 1 to 7 under Ex. Baring this, nothing has been elicited by the prosecution to establish the guilt of the accused persons. ( 31 ) THE cross-examination of P W. 5 who is a panch witness for seizure of Mos. 1 to 7 under Ex. P. 3 seizure mahazar does not discard his evidence of he having acted as pancha for the seizure mahazar ex. P. 3 and seizure of Mos. 1 to 7. As stated earlier, PW. 6 another panch witness for Ex. P. 4 spot mahazar has turned hostile. ( 32 ) TO establish the circumstance of last seen the deceased Manju in the company of the accused-appellants herein, the prosecution is strongly relying upon the evidence of P W. 10 Sadashivappa and P W. 11 smt. Jaya and PW. 13 Srinkategowda, the owner of the arrack shop. PW. 13 has since turned hostile to the prosecution case, the only material remains is the evidence of PWs. 10 and 11. ( 33 ) PW. 10 Sadashivappa, in his cross-examination has admitted that sister of the appellant-accused No. 1 was married prior to the death of Manju; that after seeing Manju on 1-3-2002 he later on saw the dead body in the burial ground; that he had seen PW. 2 Raju in the arrack shop of Srikantegowda and then thereafter, he had not seen him at all. He has also admitted in his cross-examination that he has not made any statement before the police to the effect that the deceased manju had fallen in love with Varalakshmi, the sister of appellant-accused No. 1 and that he does not even know the name of the father of the appellant-accused No. 1. Then remains the evidence of PW. 11 jaya, who claims to know the appellants-accused, as they were moving around in front of her shop. She has admitted in her cross-examination that accused-appellants had never been to her shop and for the first time she had seen the appellants-accused taking the deceased. She also admitted that the appellants-accused did not purchase any eatables on the date from her shop while the appellants-accused leaving away along with deceased Manju. This evidence of PW. 11 Jaya that Manju was taken by the appellants-accused from her hotel/shop on a motorcycle is belied by the evidence of PW. 2 Raju who has stated that the appellants-accused took Manju on a motor cycle from the toddy shop of PW. This evidence of PW. 11 Jaya that Manju was taken by the appellants-accused from her hotel/shop on a motorcycle is belied by the evidence of PW. 2 Raju who has stated that the appellants-accused took Manju on a motor cycle from the toddy shop of PW. 13 Srikantegowda. The fact of taking away of manju from toddy shop of P W. 13 Srikantegowda, as stated by P W. 2 raju cannot be treated as last seen circumstance as against the appellants-accused. According to PW. 11 Jaya, it was near her shop, the appellants-accused took deceased Manju along with them. So, the only evidence that should be relied upon by the prosecuting agency would be the evidence of PW. 11 Jaya. Admittedly, the accused-appellants were not known to P W. 11 and she saw them for the first time only in the Court, as admitted by her in her cross-examination. There is no test identification parade held by the prosecuting agency. The Hero Pouch vehicle on which deceased Manju is alleged to have been taken by the appellants-accused has also not been identified by pw. 11 Jaya. ( 34 ) ON perusal of the evidence of investigating officer PW. 17 n. Lingareddy, it is seen that the deceased Manju was last seen in the company of the accused on 1-3-2002, dead body was found on 5-3-2002 and the complaint is lodged by PW. 1 on 5-3-2002, PW. 2 raju was interrogated on 9-3-2002 and the statement of PW. 11 jaya has been recorded on 11-3-2002 but till 16-3-2002 the investigation officer has not made any efforts to trace the accused and only on 16-3-2002 he gave instruction to his subordinate staff (PW. 8)to search for the appellants-accused and to apprehend them. ( 35 ) AS regards the last seen circumstances, the Hon"ble Supreme court, in the case of JASWANT GIR vs STATE OF PUNJAB' has held as under: "a part from the extra-judicial confession which we shall advert to a little later, the main incriminating fact relied upon is that the deceased was last seen by PW. 14 in the company of the appellant and the other accused and that he was given a lift in the vehicle belonging to the appellant. In order to establish that the vehicle belonged to or was in de facto possession of the appellant, some evidence has been let in. 14 in the company of the appellant and the other accused and that he was given a lift in the vehicle belonging to the appellant. In order to establish that the vehicle belonged to or was in de facto possession of the appellant, some evidence has been let in. The "last seen" evidence is sought to be established by the testimony of PW. 14. At the outset, we must observe that there is a serious doubt cast on the version of PW. 14 about the deceased going in the vehicle of the appellant. The destination of the deceased was Pehowa whereas the vehicle had come from Pehowa and was proceeding towards Devigarh, which is in a different direction. Prima facie there is no apparent reason why the deceased would have chosen to go in the vehicle which was proceeding to some other destination. The High Court resorted to a guess that the deceased would have been lured to consume liquor or his relatives might be there at Devigarh. Without probing further into the correctness of the "last seen" version emanating from PW. 14's evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time gap between the deceased boarding the vehicle of the appellant and the time when PW. 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the "last seen" evidence, even if the version of PW. 14 in this regard is believed. ( 36 ) IN the instant case, deceased-Manju is alleged to have been last seen in the company of the appellants-accused on 1 -3-2002, the dead body is found on 5-3-2002 by the complainant (PW-1), the person (PW-2) who saw the deceased-Manju in the company of appellants-accused was interrogated on 9-3-2002 and the statement of PW. 11 Jaya has been recorded on 11-3-2002 but till 16-3-2002 the investigation officer has not made any efforts to apprehend the appellants-accused. 11 Jaya has been recorded on 11-3-2002 but till 16-3-2002 the investigation officer has not made any efforts to apprehend the appellants-accused. As regards the last seen circumstance the Hon'ble supreme Court in the case of STATE OF GOA vs SANJAY thakran AND ANOTHER has held: "from the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased as the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased as the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. " Therefore, the circumstances of "last seen" and finding of the dead body after 5 days and detection of crime after 12 days does not establish the involvement of appellants-accused involved in the commission of offence, because there is a long gap between they (accused-appellants) being found in the company of deceased and the detection of the commission of the crime. The material of the prosecution and the evidence on record may lead to a grave suspicion about the involvement of the appellants/accused in the commission, of offence suspicion however strong cannot take the place of proof. This is a case based on circumstances but there are several loose links, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. ( 37 ) THE Trial Court, while appreciating the material on record has arrived at a wrong conclusion that the evidence of PW. 2 Raju, PW. 10 sadashivappa and PW. 11 Jaya who have stated that they have last seen the company of the deceased-Manju and the appellants-accused is sufficient to hold that the accused-appellants are guilty of having committed the murder of Manju is erroneous. The other circumstances of recovery of Mixi cable wire, Hero Pouch motor cycle also do not establish any links in the chain of circumstances to hold that the accused-appellants are guilty of the alleged offence of murder. In fact, the witnesses have not even identified the Hero Puch motor cycle recovered at the instance of the accused-appellants who claim to have seen the deceased Manju in the company of the accused-appellants and he being taken on a two wheeler. In fact, the witnesses have not even identified the Hero Puch motor cycle recovered at the instance of the accused-appellants who claim to have seen the deceased Manju in the company of the accused-appellants and he being taken on a two wheeler. The fact that the investigation officer who claims to have come to know about the involvement of the accused-appellants on 9-3-2002 itself on interrogation of PW. 2 does not make any efforts to apprehend the accused and he entrusted the job of apprehending the accused to the Police Constable PW. 8 only on 16-3-2002 and the accused appellants were apprehended on 16-3-2002 i. e. , after a long gap of more than one week which also appears to be artificial. Added to this, the fact that the investigating agency had suspected the involvement of PW. 2 Raju who was with the deceased-Manju and had consumed liquor in the arrack shop of pw. 13 on the date of incident, in the commission of offence and they (Police) having detained PW. 2 in the police station for about 10-12 days also create some serious doubts on the version of PW. 2, PW. 10 and PW. 11. The above circumstances do not lead the irresistible conclusion that the accused-appellants had killed the deceased and had thrown the dead body in the channel. In view of the time gap between the circumstance of last seen the detection and registration of case, interrogation of PW. 2 and arrest of the accused-appellants, grave suspicion arises with regard to the testimony of the witnesses who have spoken to about "last seen" aspect. Under the circumstances, the dictum laid down by the Hon"ble Supreme Court referred supra would be squarely applicable to the present case. Thus, we hold that in the absence complete chain of circumstantial evidence it is not possible to convict the accused-appellants solely on the basis of the "last seen" evidence. ( 38 ) IN view of the above, we find that the trial Court fell in error in convicting the accused-appellants for the offence punishable under section 302,201 r/w. 34 IPC. Consequently, the order of conviction and sentence passed by the trial Court is erroneous and calls for interference by this Court. Accordingly, we answer points for determination and pass the following. ORDER the appeal is allowed. Consequently, the order of conviction and sentence passed by the trial Court is erroneous and calls for interference by this Court. Accordingly, we answer points for determination and pass the following. ORDER the appeal is allowed. The order of conviction and sentence passed by the District and Sessions Judge, Fast Track Court-II, shimoga dated 15-5-2004 in SC No. 68/2002 is set aside and the accused-appellants are acquitted of the charges levelled against them and are directed to be set at liberty forthwith if they are not required in any other case.