A. GOPAL REDDY, J:- These two 'appeals are preferred by Santhavarapu Venkateshwarlu (A2) and Thammishetti Ankamma (A.I) against the very same judgment dated 18.4.2006 passed by the V Additional District and Sessions Judge, (III Fast Track Court) Nalgonda at Miryalguda, in S.C. No.443 of 2005 whereby and whereunder the learned Sessions Judge convicted Al for the offence punishable under Section 302 IPC and A2 for the offence punishable under Section 302 read with Section 34 IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs.5,OOO/- each, in default, to suffer rigorous imprisonment for one year. They were also convicted for the offence punishable under Section 20 I IPC and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,OOO/each, in default, to suffer simple imprisonment for three months. Both the sentences were ordered to run concurrently. 2. The substance of the charges framed against the accused are that on 28/29.12.2004 at about 1.00 a.m. near Rallavagu Thanda in the village limits of Bothalapalem, Al committed murder of one Thammisheti Nagulumeera (hereinafter referred to as 'the deceased') by strangulating him with towel and pressing his throat with her right leg, and thereafter A1 and A2 dragged the dead body of the deceased to a distance with an intention to screen the evidence. 3. The prosecution story as narrated during the course of trial, briefly stated as follows. 4. Al is a resident of Yemmajigudem Village. A2 is the resident of Thakkellapadu Village. PW.13 is the son of Al and PW.14 is the elder brother of the deceased. They are also the residents of Yemmajigudem Village. Al is the wife of the deceased. Al married the deceased about 20 years back and they were blessed with children. The deceased and Al left their village Yemmajigudem of Bellamkonda MandaI about 14 years back for eking out their livelihood by means of stone cutting and resided at Dachepally Village. A2, who is working in powder mill at Dachepally, used to attend cooli work for loading stones in the Tractor. He used to visit the stone cutting place of the deceased and made friendship with AI. In that process, he also developed illicit intimacy with A.I since six years. When the said illegal intimacy has come to the notice of the deceased, he started harassing Al and A2 to discontinue their intimacy. He used to visit the stone cutting place of the deceased and made friendship with AI. In that process, he also developed illicit intimacy with A.I since six years. When the said illegal intimacy has come to the notice of the deceased, he started harassing Al and A2 to discontinue their intimacy. As the deceased is an obstacle in continuing their illicit intimacy, they decided to do away with the deceased. About four years back, the deceased shifted his house along with Al and children to his native place Yemmajigudem Village and thus he has become obstacle for Al and A2 to fulfill their sexual desire. But Al used to visit Dachepally and continued her illicit intimacy with A2. On 28.12.2004, the deceased and Al visited Dachepally, as the younger father-in-law of Al died. After burial of the dead body, Al took the deceased to the" check post of Dachepally at about 9.00 pm. and visited the powder mill where A.2 was working. After completion of his duty A2 came out, met AI, and decided to eliminate the deceased. They went to the check post of Dachepally as per their pre-plan and took the deceased to Rallavagu Thanda in a lorry at about 11.00 p.m. They went to the house of PW.7 and consumed liquor. From there, they went to the house of PW.6 where A2 and deceased consumed liquor. Further, they took J.D. Liquor for Rs.20/- in a plastic bottle and while proceeding towards Bette Thanda they met PW.8 on the road. Al told that the deceased is her husband and proceeded further. At about 1.00 a.m. they reached near the hillock situated near Rallavagu Thanda where A.2 consumed liquor and also made the deceased to consume liquor, which was brought by them. When the deceased was in intoxicated condition, A.2 caught hold of his legs and hands while Al took the towel of the deceased, and strangulated him with the towel and forcibly killed him by pressing his throat with her right leg. Later Al and A2 went to the house of PW.6, handed over the empty liquor bottle, which was taken by them. They again consumed liquor of Rs.10/- and went to the scene of offence to see whether the deceased died or not. After confirming that the deceased died, they dragged the dead body to a distance. Later Al and A2 went to the house of PW.6, handed over the empty liquor bottle, which was taken by them. They again consumed liquor of Rs.10/- and went to the scene of offence to see whether the deceased died or not. After confirming that the deceased died, they dragged the dead body to a distance. Al took the towel of the deceased, A2 removed the shirt of the deceased and covered the dead body with lungi and reached to the canal culvert and hid the objects. Later they went to Dachepally and boarded the lorry. 5. On 29.12.2004, at about 9.00 a.m. when PW.1 the Village Secretary of Bothalapalem was at his house, PW.3-the village servant of the Bothalapalem came to PW.I and informed about the presence of male dead body at Bolligutta Thanda by the side of the road. Then PW.1 along with PW.2 and others went to the scene of offence and found the dead body. After noticing the dead body, PW.I gave Ex:P.1 report at P.S. Wadapalli on the same day at 10.30 a.m. PW.16-S.I of Police, Wadapally received Ex.P1 report from PW.1 and registered the same as a case in Crime No.114 of 2004 and issued F.I.R under Ex.P.30. He recorded the statement of PW.I in the police station, visited the scene of . offence, conducted scene of offence panchanama under Ex.P.8 in the presence of PW.1 0 and others, and drew rough sketch of the scene of offence under Ex.P.10. The photographs of the deceased were taken by PW.4. Thereafter, PW.I6 conducted inquest over the dead body of the deceased before the presence of panchas, recovered MO.1-lungi from the dead body of the deceased and sent the dead body for post-mortem examination. PW.9-the Civil Assistant Surgeon in the Government Area Hospital, Miryalaguda, received requisition from PW.16 on 30.12.2004 at 12.30 p.m., conducted autopsy over the dead body of the deceased and issued Ex.P.6-post-mortem report opining that the cause of death was strangulation with rough object leading Asphyxia. PW.15-C.1. of Police, Miryalaguda took up investigation on 30.12.2004. He recorded statements of PWs.5, 14, 13, 7 and 8, arrested A.1 and A2 on 31.12.2004 near Durga Rao Hotel, Dachepally, interrogated them in the presence of PWs.ll~ and 12-panchas and recorded their confessional statements. In pursuance of their confessional statements, Al and A2 led PW.15 and panchas to the outskirts of Bothalapalem Village. He recorded statements of PWs.5, 14, 13, 7 and 8, arrested A.1 and A2 on 31.12.2004 near Durga Rao Hotel, Dachepally, interrogated them in the presence of PWs.ll~ and 12-panchas and recorded their confessional statements. In pursuance of their confessional statements, Al and A2 led PW.15 and panchas to the outskirts of Bothalapalem Village. Al went underneath the culvert and brought the towel used by them for commission of offence. PW.15 seized the towel under the cover of recovery panchanama in the presence of panchas. Then A2 went inside the culvert and brought white shirt of the deceased, which was seized by PW.15 under the cover of panchanama. Then Al and A.2 led PW.15 and panchas to the house of PW.6 for recovery of empty water bottle. Exs.P.25 and 26 are the confessional statements of Al and A2. EX.P.27 and 28 are recovery panchanamas of MO.2-towel and MO.3shirt of the deceased. PW.15 produced the accused before the Magistrate for their remand, and after completion of investigation, he filed charge-sheet before the Judicial First Class Magistrate, Miryalguda. 6. The learned Magistrate took cognizance of the case in P.R.C. No.24 of 2005 and committed the same to the Court of Session, Nalgonda, who framed three charges against the accused for the offences punishable under Sections 302 IPC, Section 302 read with 34 IPC and Section 201 IPC and read over and explained the same to the accused, for which the accused pleaded not guilty and claimed for trial. 7. In order to substantiate the charges, the prosecution examined 16 witnesses, marked 30 documents and exhibited 3 material objects, namely, lungi, towel and shirt. No oral or documentary evidence has been adduced in defence of the accused. 8. After evaluating the evidence adduced by the prosecution, the learned Sessions Judge accepted the case of the prosecution and found the accused guilty of the offences for which they have charged and sentenced them as aforementioned. Aggrieved by the conviction and sentence A.1 filed Crl. A. No.1783 of 2006 and A.2 filed Crl. A. No.788 of 2006. 9. Smt. A. Gayatri Reddy learned Counsel appearing for appellant-A.2 contended that the entire case rests upon the circumstantial evidence. The accused and the deceased were last seen together by PW.8, who has not supported the case of prosecution. Aggrieved by the conviction and sentence A.1 filed Crl. A. No.1783 of 2006 and A.2 filed Crl. A. No.788 of 2006. 9. Smt. A. Gayatri Reddy learned Counsel appearing for appellant-A.2 contended that the entire case rests upon the circumstantial evidence. The accused and the deceased were last seen together by PW.8, who has not supported the case of prosecution. Similarly, the accused and the deceased said to have consumed liquor, which was purchased from PW.6, and consumed the same at the house of PW.7, but PWs.6 and 7 have not supported the case of prosecution and they were declared hostile. In view of the same, mere establishing that there was an illegal intimacy between A.l and A.2, the accused cannot be convicted for the major offence without proving the same beyond reasonable doubt. 10. Sri B. Parameswara Rao, learned Counsel appearing for appellant-A. 1 adopted the arguments made by Smt. A. Gayatri Reddy. 11. The learned Additional Public Prosecutor is fair enough in conceding that 85 2008(2) AlD (Crl.) August the last scene theory cannot be applied in this case since PW.8 has not supported the case of prosecution. He also contended that the evidence of PW.13-son of Al and PW.14-elder brother of the deceased, proves the illicit contact of A2 with AI, as such no other person is inimical to the deceased except A.2. 12. In the light of the submissions made by both the Counsel as referred to above, the points that arise for consideration are whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt, whether the circumstantial evidence let in by the prosecution is complete and incapable of explanation of any other hypothesis except that of the guilt of the accused, and whether the conviction and sentence is liable to be set aside or modified. 13. PW.I, who is Panchayat Secretary at the relevant point of time, on the information passed on by PW.3, visited the scene of offence along with PWs.2 and 3 and on seeing the dead body and the ligature marks on the neck of the dead body, lodged Ex.P.1 report with the police, on the basis of which PW.l6-S.1. of Police registered a case in Crime No.114 of 2004 for the offences punishable under Sections 302 IPC against unknown persons. 14. of Police registered a case in Crime No.114 of 2004 for the offences punishable under Sections 302 IPC against unknown persons. 14. PW.2 accompanied PW.I after knowing about the presence of dead body of a male person by the side of the road leading to Bolligutta Thanda from Bothalapalem Village. 15. PW.3, who is the village servant working under PW.I, on 28/9.12.2004 at about 8.00 a.m. first saw the deceased lying by the side of the road leading to Bolligutta Thanda from Bothalapalem Village and informed the same to PWs.1 md 2. Then they went to the place of dead body and noticed the same. 16. PWA photographed the dead body of a male person and handed over the photos with negatives to the police. EX.P.2 is the bunch of photos with negatives four in number. 17. PW.5 was deputed by PW.16-SubInspector of Police by giving the photographs of unidentified dead body. 18. PWs.6 to 8 are the important witnesses to the case of prosecution to connect the accused for commission of offence. PW.6 did not support the case of prosecution and he was declared hostile._ Nothing has been elicited in his cross-examination to prove that the accused and the deceased have purchased liquor on the date of incident and that A.2 and the deceased consumed liquor at his house at 11 p.m. and left the house. 19. PW.7 also did not support the case of prosecution and hence he was declared hostile. 20. PW.8, who has last seen the accused and the deceased at 12 midnight on 28/29.12.2004, stated that at about 12 midnight, when he was going to attend calls of nature, he saw one male and one female person_ going together towards Rallavagu Thanda, but he did not talk to the~. He could not identify those two persons noticed by him due to dark night. Since he did not support the case of prosecution, he was declared hostile. 21. PW s.11 and 12, who are the witnesses to recovery of MOs.2 and 3, also did not support the case of prosecution and they were declared hostile. 22. PW.13, who is the son of the deceased and A.I deposed that he got suspicion that the person, who has illicit contact with A.1, might have killed his father. In his cross-examination he stated that A.1 and the deceased alone went to Dachepally prior to his death. 22. PW.13, who is the son of the deceased and A.I deposed that he got suspicion that the person, who has illicit contact with A.1, might have killed his father. In his cross-examination he stated that A.1 and the deceased alone went to Dachepally prior to his death. PW.5 came to his house with the photo of his deceased father and he identified the photo as that of his father. 23. PW.14-the elder brother of the deceased also spoke about the illegal intimacy between A.1 and A.2. He also deposed that nobody has got interest or enmity to kill the deceased except A.1 and A.2 due to their extra marital life. 24. The entire case of the prosecution rests upon the circumstantial evidence only. The accused were last seen together by PW.8 at 12 midnight and he has not supported the case of prosecution. 25. The Supreme Court in Sharad Biridhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , laid down certain guidelines for conviction on the basis of circumstantial evidence, which have to be fulfilled before the accused is convicted on the basis of circumstantial evidence, which read as follows: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence, and a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 26. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence, and a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 26. In the light of the legal principles laid down by the Supreme Court as referred to above, we have to consider the circumstantial evidence let in by the prosecution on the touchstone of law relating to circumstantial evidence, whether the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellants have committed the crime. 27. The lower Court at Paragraph 21 enumerated the circumstances proving the guilt of the accused, stating that Al and the deceased last seen together and left their house in the morning on 28.12.2004 to attend the death ceremony of Cellaguruvu Venkateshwarlu as spoken to by PWs.3 and 14; the body of the deceased was noticed for the first time at about 9 a.m., at Bolligutta Thanda on 29.12.2004; the evidence of PW.8 shows that he haS seen one male and female near to the scene of offence at 12 midnight; and no iota of evidence- is on record to show that any other person has got interest to kill the deceased except A.1 and A2; the above circumstances clinchingly show the illicit contact between Al and A2. So all the chain of circumstances would link the version of the prosecution that it is only Al and A2, who have strangulated the deceased between 12.00 midnight and 1.00 a.m. on the intervening night of 28/29.12.2004, which is also supported by the medical evidence. 28. At Paragraph-13 of the judgment, the learned Sessions Judge observed that PWs.6 to 8 have not supported the case of prosecution and were declared hostile. Nothing has been elicited in the cross-examination by the Public Prosecutor to prove that the deceased and the accused went to the house of PW.6 and consumed liquor. Similarly, it was also not elicited from the evidence of PW.7 that the accused and the deceased visiting his house and his supplying liquor worth Rs.20/-. 29. PW.8 though declared hostile, his evidence was taken into consideration. Similarly, it was also not elicited from the evidence of PW.7 that the accused and the deceased visiting his house and his supplying liquor worth Rs.20/-. 29. PW.8 though declared hostile, his evidence was taken into consideration. He stated that he has seen one male and female persons going towards Rallavagu Thanda at 12.00 midnight, but he has not talked with them and he could not identify the persons noticed by him due to darkness. Simply because the said witness has not been cross-examined by the defence, the suggestion made by the prosecution will not amount proving the guilt of the accused. 30. PW.13, who is the son of A.1 and the deceased, identified the dead body of the deceased in the photo shown to him by the police. He deposed that on 28.12.2004 morning his deceased father and mother (A.1) went to Dachepally after hearing the death news of his junior paternal grandfather. But the time gap between noticing the dead body and their leaving the house is more than 24 hours. Therefore, the last seen theory alone is not sufficient to prove the guilt of the accused. It is well settled that last seen theory comes into play where time gap between point of time when accused and deceased were last seen alive and deceased was found dead was so small that possibility of any person other than accused being author of crime becomes impossible (Ram reddy Rajesh khanna Reddy and others v. State of Andhra. Pradesh, AIR 2006 SC 1656 ) 31. The motive for the crime, as was projected by the prosecution, was Al 'has got illicit contact with A2 during his 10 years stay at Dachepally, as per the evidence of PW.14. He testified that nobody has got interest or enmity to kill the deceased except Al and A2 due to their extra marital affair. 32. The above evidence only goes to show that there was an illegal intimacy between Al and A2 to draw an inference for motive to kill the deceased. But the said circumstance of illegal intimacy/motive by itself alone is not sufficient to prove the guilt of the accused and to convict A2 for the offence under Section 302 read with Section 34 IPC (see State of UP. and others v. Pa/tan Mallah and others, AIR 2005 SC 733 = (2005) 3 SCC 169 ). 33. But the said circumstance of illegal intimacy/motive by itself alone is not sufficient to prove the guilt of the accused and to convict A2 for the offence under Section 302 read with Section 34 IPC (see State of UP. and others v. Pa/tan Mallah and others, AIR 2005 SC 733 = (2005) 3 SCC 169 ). 33. Once the prosecution failed to establish that the deceased was in the company of A.l and A2 and last seen by PW.8, there is a missing link to connect the accused for commission of offence. Mere illegal intimacy between A.1 and A2, and the fact that the death of the deceased is homicidal are not enough to come to a conclusion that the accused are responsible for commission of offence. 34. In Ram reddy Rajesh Khanna Reddy and another v. State of Andhra Pradesh (supra), the Supreme Court while reiterating the settled legal position on circumstantial evidence observed as under: It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may be, cannot be a substitute for a proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. 35. In view of the same, the conviction and sentence recorded by the lower Court against the accused for the offences under Sections 302, 302 read with 34 IPC and Section 201 IPC are not sustainable and the same are liable to be set aside. 36. In the result, the criminal appeals are allowed and the conviction and sentence imposed against appellant-A.1, namely, Thammishetti Ankamma, W/o. Nagulumeera and appellant-A.2, namely, Santhavarapu Venkateshwarlu, S/o. Saidulu, by the V Additional District and Sessions Judge, in S.C. No.443 of 2005 for the offences punishable under Sections 302 read with 34 IPC and Section 201 IPC are set aside. They shall be set at liberty forthwith, if they are not required in any other case.