Judgment :- N.V. Ramana, J. This criminal appeal is directed against the judgment dated 08.08.2008, passed by the VIII Additional District and Sessions Judge (FTC), Visakhapatnam, in S.C. No. 5 of 2008, convicting the appellants-accused for the offences under Section 302 read with Section 34 IPC and sentencing them to undergo imprisonment for life and to pay fine of Rs.500/-each, in default to undergo simple imprisonment for two months each, and further convicting them for the offence under Section 379 IPC and sentencing them to suffer imprisonment for a period of six months each. Briefly stated, the case of the prosecution is that P.W.3 is the mother of the deceased, namely Pondara Raju. The deceased, P.W.5 and L.Ws. 8 to 11 used to live in opposite rooms in the house of P.W.7 at Chattivanipalem and became friends. About fifteen days prior to the incident on 05.06.2006, the deceased along with P.W.5 came from Thippanaputtuga, Ichapuram Mandal to Gajuwaka and joined in A.B.B.S. Talent Training Centre of P.W.4 at Autonagar, for industrial training. As the accused did not have any earnings for their livelihood, they decided to kill the deceased and take away his motorcycle and his personal belongings. Therefore, the accused used to move closely with the deceased and visit the hotel of P.W.6 for meals. P.W.5 and L.Ws. 8 to 11 and others witnessed the same. They convinced the deceased to go with them to Anakapalle for a ride on his motorcycle. Accordingly, on the night of 5.06.2006 at about 8.00 pm, both the accused waited at the bus stop of Chattivanipalem Main Road. When the deceased came from the photo studio along with P.W.5, the accused took the deceased towards Anakapalle on his motorcycle by leaving P.W.5 there. At about 9.00 or 10.00 pm, they stopped the motorcycle at the wine shop of P.W.11. The deceased purchased three beer bottles, some stuff and cigarettes. Later, they came to Jalagalamadumu Junction, Anakapalle. The accused and the deceased parked the motorcycle in a thatched hut situated by the side of the road and went into a sugarcane field and sat there and consumed beer. After consuming the beer, the accused tried to steal the motorcycle. As the deceased resisted, the accused attacked the deceased with the empty beer bottles. The accused and the deceased parked the motorcycle in a thatched hut situated by the side of the road and went into a sugarcane field and sat there and consumed beer. After consuming the beer, the accused tried to steal the motorcycle. As the deceased resisted, the accused attacked the deceased with the empty beer bottles. Accused No.1 beat the deceased with the empty beer bottle on his head, while accused No.2 strangulated the neck of the deceased with a thin wire and killed him. The accused later snatched the gold chain from the neck of the deceased weighing about three grams. They tried to secure the key of the motorcycle, and as they could not trace it, they left the scene of offence and went directly to Chattivanipalem. At about 1.00 pm, when both the accused came to their room, P.W.5 saw the accused moving hurriedly to their room. They packed their luggage and left their room. When P.W.5 enquired the accused about the deceased, the accused did not give any reply and went away. On 06.06.2006 in the morning, on information P.W.1 visited the scene of offence, saw the dead body of the deceased and presented a complaint at Anakapalle Town Police Station at about 11.00 am. P.W.13, based on the complaint lodged by P.W.1, registered a case in Crime No. 138 of 2006 under Section 302 IPC. Thereafter, P.W.17 took up investigation. During the course of investigation, P.W.17 on 06.06.2006 at about 12.00 pm, visited the scene of offence, seized the blood stained earth, controlled earth, broken glass bottles, cigarette butts, key chain of the motorcycle, thin wire etc. under cover of Mediators Report in the presence of two mediators, namely P.W.8 and L.W.15. Thereafter, he held inquest over the dead body of the deceased from 1.00 pm to 4.00 pm in the presence of P.Ws. 1, 2 and L.W.2 and the panchayatdars, P.W.8 and L.W.15. He established the identity of the deceased with the Driving Licence available in the toolbox of the motorcycle. P.W.13 passed on the information to P.W.3. P.W.17 also examined and recorded their statements. L.W.19 took the photographs of the scene of offence. P.W.17 prepared rough sketch of the scene of offence. L.W.20 examined the scene of offence and traced the chance prints. After conducting inquest, the dead body was sent to Government Hospital, Anakapalle for autopsy under escort of L.W.24. P.W.17 also examined and recorded their statements. L.W.19 took the photographs of the scene of offence. P.W.17 prepared rough sketch of the scene of offence. L.W.20 examined the scene of offence and traced the chance prints. After conducting inquest, the dead body was sent to Government Hospital, Anakapalle for autopsy under escort of L.W.24. P.W.17 examined P.W.11 and recorded his statement. P.Ws. 3 to 5 and L.Ws. 8 to 11 identified the dead body of the deceased. On 07.06.2006, at about 4.00 pm, P.W.17 visited Chattivanipalem and examined the rooms of both the accused in the presence of mediators, namely P.Ws. 6 and P.W.9 and seized a newspaper and small bundles of thin wire under cover of Mediator’s report. Thereafter, he examined P.Ws.3 to 5, 6, 7 and L.Ws. 8 to 11 and recorded their statements. P.W.10, the Medical Officer, who conducted post mortem examination, issued post mortem certificate opining that the deceased died due to Asphyxia due to strangulation ligature. P.W.17 arrested accused No.1 on 16.06.2006 at about 4.00 pm at Vuppugonduru near Ongole junction and recorded his confessional statement in the presence of P.Ws. 13 and 14 and seized stolen gold chain of the deceased. Based on the confessional statement of accused No.1, P.W.17 arrested accused No.2 on 16.06.2006 at 6.00 pm at Railway Station, Ongole and recorded his confessional statement in the presence of two mediators, P.Ws. 13 and 14 and sent them to judicial custody. The Finger Prints of the accused and the chance finger prints traced at the scene of offence were sent through SDPO, Anakapalle to Forensic Science Laboratory, Hyderabad, for comparison. He preserved the saliva of the accused along with cigarette butts that were sent to RFSL, Visakhapatnam, for comparison through SDPO, Anakapalle. P.W.12 conducted Test Identification Parade of the accused and P.Ws.3, 4, 11 and others identified the accused. After completion of investigation, P.W.17 filed the charge sheet against the accused. The learned Sessions Judge framed the charges under Section 302 read with Section 34 IPC and Section 379 IPC against the accused. The accused pleaded not guilty for the said charges and claimed to be tried. The prosecution, in order to establish the said charges, examined P.Ws.1 to 17 and got marked Exs.P1 to P31 and M.Os.1 to 7. On behalf of the defence, neither any witness was examined nor any documents were marked. The accused pleaded not guilty for the said charges and claimed to be tried. The prosecution, in order to establish the said charges, examined P.Ws.1 to 17 and got marked Exs.P1 to P31 and M.Os.1 to 7. On behalf of the defence, neither any witness was examined nor any documents were marked. The learned Sessions Judge, upon appraisal of the evidence on record, found the appellants-accused guilty for the offences under Section 302 read with Section 34 IPC and convicted and sentenced them to undergo imprisonment for life and to pay fine of Rs.200/-, in default to undergo simple imprisonment for two months; he also found the appellants-accused guilty for the offence under Section 379 IPC and sentenced them to undergo simple imprisonment for six months. Both the sentences were ordered to run concurrently. Questioning the said conviction and sentence, the appellants-accused, who are two in number, have preferred the present appeal. Heard the learned counsel for the appellants and the learned Public Prosecutor for the State. Now the point that arises for consideration in this criminal appeal is: Whether the prosecution could establish the charges under Section 302 read with Section 34 IPC and Section 379 IPC against the appellants-accused beyond all reasonable doubt? The prosecution, to prove the guilt of the accused for the charges framed, has examined as many as seventeen witnesses as P.Ws.1 to 17. P.W.1 is the Village Revenue Officer, Anakapalle, who found the dead body of the deceased at surgarcane fields and reported the matter to police. He stated that on being informed by ryots that they found a dead body at Jalagala Madumu, he went there along with one Talyari and found a dead body of a male person lying in feeder canal by the side of sugarcane fields of Ponnada Sanjeeva Rao. He also found broken glass pieces, wire (telephone) and burnt cigarette butts. He noticed a ligature mark around the neck of the deceased. Then he drafted Ex.P1-report and presented the same to Anakapalle Town Police Station. Then P.W.13-Sub Inspector of Police, registered the same as crime. Thereafter, P.W.13 along with his police constables came and held inquest over the dead body of the deceased. The police seized glass pieces, telephone wire, cigarette butts and prepared observation-cum-seizure report in their presence. Then he drafted Ex.P1-report and presented the same to Anakapalle Town Police Station. Then P.W.13-Sub Inspector of Police, registered the same as crime. Thereafter, P.W.13 along with his police constables came and held inquest over the dead body of the deceased. The police seized glass pieces, telephone wire, cigarette butts and prepared observation-cum-seizure report in their presence. That M.O.1 is the broken glass pieces of beer bottles, M.O.2 is the telephone wire and M.O.3 is cigarette butts and cigarette packet. He stated that he was present at the time when inquest over the dead body of the deceased was conducted by the police. In his cross-examination, P.W.1 stated that he does not know what was written by the police in the inquest report. He also found one red broken bangle piece at the scene of offence and that he noticed a gold chain lying at the scene of offence, and he did not affix his signature on any of the slips of M.Os. 1 to 3. P.W.2 is the brother-in-law of Ponnada Sanjeeva Rao, at whose sugarcane fields the dead body of the deceased was found. He stated that he is looking after the sugarcane fields of his brother-in-law and that he noticed a dead body of a male person, and he also noticed broken glass pieces of beer bottles, broken bangle pieces, telephone wire and burnt cigarette butts and burnt match sticks. P.W.3 is the mother of the deceased. She stated that she came to know her son was murdered near a sugarcane field at Anakapalle. On the next day of the incident, she went to Anakapalle Police Station. That she saw the dead body of the deceased at the Government Hospital, Anakapalle and identified him to be her son. She stated that her son completed Intermediate, and after the death of her husband, her son came to Visakhapatnam in pursuit of employment and joined an institute in Autonagar, Gajuwaka. Her son and P.W.5 both joined in the said course, and her son was staying in a rented house near to the institute. Her son was using the motorcycle belonging to his father. The belongings of her son i.e. gold chain, cell phone and some cash were found stolen. M.O.4 is the gold chain and M.O.5 is a piece of M.O.4. In her cross-examination, she stated that she identified M.Os. Her son was using the motorcycle belonging to his father. The belongings of her son i.e. gold chain, cell phone and some cash were found stolen. M.O.4 is the gold chain and M.O.5 is a piece of M.O.4. In her cross-examination, she stated that she identified M.Os. 4 and 5 when they were shown to her by the police only after she went there from the hospital. That four or five days after the death of her son, she again went to the Anakapalle Police Station and then the police showed her the accused. P.W.4 is the owner of the institute in which the deceased was studying. He stated that he knows the deceased. That he also knows the accused because he has seen them at Anakapalle Police Station. In his cross-examination, he stated that the police took some students studying in his institution for interrogation. P.W.5 is the roommate of the deceased in the rented room of one Pardesamma. He stated that the deceased also belongs to his village. That along with them, four others also used to stay. Himself, the deceased and another, shifted to another accommodation in the same locality. That he knows the accused who used to stay in the room opposite to their room. On 05.06.2006, himself and the deceased after returning from the institute, went to a photo studio. After taking the photos, while they were returning on the motorcycle, he saw the accused at Autonagar Bus Stop. The deceased stopped the motorcycle and asked him to go to the room and that he will go along with the accused. Then the deceased and both the accused went on the motorcycle. On that day, at about 10.00 pm, when he telephoned to the mobile number of the deceased, the deceased informed him that they will come within a short time and asked him and the other room mate to take food without waiting for him. That at about 1.00 am in the night, both the accused came, while the deceased did not. When he asked the whereabouts of the deceased, the accused replied that the deceased did not come along with them and that the accused proceeded to their room, packed their clothes in a hurried manner and left the room. When himself and his roommate questioned the accused, they informed them that the deceased will come later. When he asked the whereabouts of the deceased, the accused replied that the deceased did not come along with them and that the accused proceeded to their room, packed their clothes in a hurried manner and left the room. When himself and his roommate questioned the accused, they informed them that the deceased will come later. Thereafter, he did not see the accused. On the next day, they informed P.W.4 that the deceased was missing. Thereafter, P.W.4 went to Gajuwaka Police Station to give a report. Later, they received a phone from the village that the deceased died near Anakapalle. In his cross-examination, he stated that two days prior to the death of the deceased, they shifted to their room, and admitted that before the police he stated that they shifted the room five days prior to the death of the deceased. He further admitted that the accused did not visit the new room and that he cannot say exactly when the accused visited their old room. He stated that he does not know whether accused are related to each other and that he never saw the accused going with the deceased on his motorcycle prior to 05.06.2006. He stated that he telephoned the deceased on 05.06.2006 from a local coin box. That he never visited the room of the accused. That he does not know whether there were broken bangle pieces found at the scene of offence. The deceased used to get phone calls from friends, but he does not know whether they are from girl friends or boy friends. He admitted that the room of the accused is not visible from their new room. He enquired with the accused about the deceased at their old room. He further admitted that their new room and the room of the accused are not situated in the same street. On that night, from 12.00 am to 1.00 am, they tried to contact the deceased, but his mobile phone was switched off. He has seen the accused only once when they were taking their luggage and that too on the road which is near to the old room. P.W.6 is the owner of the mess where the deceased and others used to have lunch and dinner. He has seen the accused only once when they were taking their luggage and that too on the road which is near to the old room. P.W.6 is the owner of the mess where the deceased and others used to have lunch and dinner. He stated that the deceased used to come alone and have lunch and dinner in their mess and the police informed him that the deceased was murdered. P.W 7 is the owner of the room of the accused. He stated that the accused stayed in their house for rent for one month. He stated that he came to know through police that the deceased was murdered. P.W.8 is Councillor of 15th Ward of Anakapalle. He is mediator to seizure of M.Os. 1 to 3 and Ex.P2-observation report and also Ex.P3-inquest report. P.W.9 is Instructor in the institute run by P.W.4. He is mediator to Ex.P4-mediator’s report and seizure of M.O.6-newspapers. P.W.10 is the Civil Assistant Surgeon, who conducted autopsy over the dead body of the deceased. He stated that on receipt of requisition from the Anakapalle Town Police Station, he conducted autopsy over the dead body of the deceased. That he found the following external injury: Ligature mark: A dark brown hard parchmentized ligature mark present on and around the neck 32 x 3 cms length at the level of thyroid cartilage region. There is no definite patter. There is no definite knot mark. The ligature mark is transversely passing all around the neck. He further stated that he also found internal injuries. The sub-coetaneous tissues and neck muscle are bruised under the ligature mark. The fracture of both greater coronae of thyroid bone and superior horns of thyroid cartilage are present. He further stated that except the above injuries, he did not find any other ante-mortem injuries. He opined the cause of death of the deceased is Asphyxia due to strangulation by ligature. The said injuries are sufficient to cause the death of a person in the ordinary course of nature. In his cross-examination, he stated that it will take one hour for 30 ml of liquor to digest, and that if a person who consumed 30 ml of liquor dies within one hour after consumption, traces of the same will be found in the stomach. In Ex.P5-post mortem report, he noted that the stomach of the deceased was empty. In his cross-examination, he stated that it will take one hour for 30 ml of liquor to digest, and that if a person who consumed 30 ml of liquor dies within one hour after consumption, traces of the same will be found in the stomach. In Ex.P5-post mortem report, he noted that the stomach of the deceased was empty. He stated that there is possibility of a person receiving injuries to his hand, if wire like M.O.2 is used for strangulation. P.W.11 is a Cashier-cum-Sales Man in a Wine Shop. He stated that he never saw the accused and that he cannot identify them. He denied that he identified the motorcycle on which the accused and another person came to his shop to purchase liquor on 05.06.2006. He stated that the police brought the two accused on that day, and that he identified the accused before the AJFCM at Anakapalle and Sub-Jail. In his cross-examination, he stated that both the accused were shown to him prior to the Test Identification Parade and that they were brought to his shop and that is the reason why he identified them in the Test Identification Parade and in the Court. P.W.12 is the AJFCM who conducted Test Identification Parade. He stated that he recorded the statements of P.Ws. 7 and 11 to know the physical features and identification particulars of the suspects and that P.Ws. 7 and 11 identified the accused. P.W.13 is the S.I. of Police, who registered the crime, based on Ex.P1-report given by P.W.1 and issued Ex.P7-FIR. P.W.14 is panch witness to the confessional statement of accused Nos. 1 and 2 under Exs.P8 and P9. He turned hostile. He did not support the case of the prosecution that accused No.1 is the person who got down from the auto and handed over the gold chain to the S.I. of Police. P.W.15 is the Inspector of Police. At the time when the incident took place, he was S.I. of Police. He stated that on receipt of requisition from P.W.17, he visited the scene of offence, examined the broken pieces of beer bottles and developed three chance finger prints out of the broken pieces of beer bottles and labelled them as A, B and C. He further stated that he got the chance fingerprints photographed by a photographer of the Clues Team. On examination of the photocopies of the chance prints, he found the photocopies of the chance prints labelled as ‘B’ unfit for comparison for want of ridge characterises; the photocopies of chance prints labelled as ‘A’ and ‘C’ were fit for comparison, and accordingly communicated the report to P.W.17. He further stated that upon receipt of finger print slips of the two accused, he compared them with the chance finger prints and found that the chance finger prints labelled as ‘A’ was identical to the right middle finger impression of accused No.1 and the chance finger prints labelled as ‘C’ was identical to the right thumb impression of accused No.2. Accordingly, he sent Exs.P10, P11, P12 and P13-charts showing the comparison of identical ridge characteristics of chance prints, while Ex.P14 is his report. In his cross-examination, he admitted that there is no recorded evidence to show whether the chance finger prints marked as A and C are collected from a single broken beer glass bottle piece or from two pieces. He also admitted that he did not note down the length and breadth of the broken glass pieces from which the chance prints were collected. He admitted that he is a subordinate to his Inspector and that he has no recorded evidence to show that he marked copies to his Inspector and that the Inspector had acknowledged the same from 06.06.2006 to 19.06.2006. He denied the suggestion that he did not go to the scene of offence on 06.06.2006 along with the Clues Team and collected the chance prints from the broken beer glass pieces. He also denied the suggestion that the finger prints and chance finger prints belong to the same persons and that he is obliging the Inspector of Police. He stated that he prepared the report basing on the finger prints taken from the accused only and not from chance finger prints. P.W.16 is the Inspector of Police, Finger Print Expert, who forwarded the report of P.W.15 to the Inspector of Police. P.W.17 is the Inspector of Police, who conducted investigation. He stated that immediately after registration of the crime, he visited the scene of offence and found the dead body of the deceased lying with scuffle marks, a pair of footwear, cigarette butts, broken beer bottles, one cut piece of gold chain and seized them. He prepared observation report and inquest report. He stated that immediately after registration of the crime, he visited the scene of offence and found the dead body of the deceased lying with scuffle marks, a pair of footwear, cigarette butts, broken beer bottles, one cut piece of gold chain and seized them. He prepared observation report and inquest report. He sent the dead body of the deceased for postmortem examination to P.W.12. Thereafter, he visited the place where the accused and the deceased resided and also the Wine Shop and after examining the witnesses recorded their statements. On 16.06.2006, he arrested accused No.1 and recorded his confessional statement in the presence of mediators and recovered the gold chain, and thereafter, he arrested accused No.2. In his cross-examination, he admitted that after he went to the house of the accused, he sent word to P.W.7. The wire bundle was found in the open terrace of the house of the accused. He did not have any communication with the police of Ongole District. He admitted that he did not note down the length and breadth of the gold chain which he seized from the scene of offence. M.O.5 was about ¼ mm in length and that he did not get it tested whether it is gold or not. He denied that M.O.5 is not the piece of chain recovered by him, and that it is not the piece of M.O.4. He admitted that in Ex.P3, it is mentioned that a gold chain was seized, but in respect of seizure, it is mentioned that it is a piece of gold chain. He admitted that when they saw accused No.1, they found him walking. That he arrested accused No.1 at 4.00 pm in the evening and made entry at 8.00 am on 17.06.2006 in the Sentry Diary about the arrest of the accused. That they have taken two sets each of finger prints of both the accused also two sets of toe prints. He denied the suggestion that he did not arrest the accused on 16.06.2006 at Ongole and seized M.O.4 from him and that he brought the accused three to four days prior to his arrest and showed their arrest on 16.06.2006. He also denied the suggestion that the Clues Team did not come to the scene of offence and that he himself had taken the chance finger prints. Thus, admittedly, there are no eyewitnesses to the incident. He also denied the suggestion that the Clues Team did not come to the scene of offence and that he himself had taken the chance finger prints. Thus, admittedly, there are no eyewitnesses to the incident. The entire case of the prosecution is based on circumstantial evidence. The law is well settled that when the case of the prosecution is wholly dependant on circumstantial evidence, presumption of innocence of the accused must have a dominant role. Therefore, before examining whether the prosecution could prove its case by connecting the accused to the death of the deceased based on the circumstantial evidence, we feel it appropriate to refer to the decisions of the Apex Court, which laid down the principles that govern the consideration of circumstantial evidence. The Constitution Bench of the Apex Court in Govinda Reddy v. State of Mysore ( AIR 1960 SC 29 ), quoted with approval the principles laid down by it in relating to circumstantial evidence, in Hanumant Govind Nargundkar v. State of M.P. ( AIR 1952 SC 343 ). They are – … in cases where the evidence is of a circumstantial nature, the circumstances which lead to the conclusion of guilt should be in the first instance fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be sown that within all human probability the act must have been committed by the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be sown that within all human probability the act must have been committed by the accused. In Mahmood v. State of U.P. ( AIR 1976 SC 69 ), the Apex Court held when a case is wholly dependant on circumstantial evidence, the Court before recording a conviction on the basis therefore, must firmly be satisfied – (a) that the circumstances from which the interference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt; (b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and (c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him. It is in the light of the above principles governing the consideration of circumstantial evidence, now we shall proceed to examine whether the prosecution could prove the circumstances to connect the accused to the death of the deceased, beyond all reasonable doubt. The first circumstance relied upon by the prosecution to prove its case is motive for the accused to kill the deceased. According to the prosecution, the motive for the accused to kill the deceased is that the accused were not having any earnings, and therefore, they decided to kill the deceased and take away the motorcycle and the gold chain from him. The learned counsel for the appellants contended that there is no evidence produced by the prosecution to prove the motive of the accused to kill the deceased. To consider whether the prosecution could prove the motive of the accused to kill the deceased, it would be appropriate to consider the evidence placed by the prosecution. Ex.P3-inquest report shows that the motor cycle of the deceased bearing No. AP 30D 4622 was found parked on its stand near the scene of offence. P.W.1 who lodged Ex.P1-report, in his evidence stated that he noticed a gold chain at the scene of offence. Ex.P3-inquest report shows that the motor cycle of the deceased bearing No. AP 30D 4622 was found parked on its stand near the scene of offence. P.W.1 who lodged Ex.P1-report, in his evidence stated that he noticed a gold chain at the scene of offence. Even though the prosecution sought to prove recovery of gold chain from accused No.1 by examining P.W.14, who stood as mediator to the confession and recovery panchanama, the fact remains that, in his evidence he stated that he did not notice accused No.1 handing over the gold chain to P.W.17. Thus, from this evidence, it would become clear that the gold chain and motorcycle of the deceased were found at the scene of offence itself. If really the accused had the intention to kill the deceased to take away the motorcycle and gold chain, the accused would not have left the motorcycle and gold chain and run away from the scene of offence. Hence, we hold that the prosecution failed to prove the motive for the accused to kill the deceased. The second circumstance relied upon by the prosecution is that the accused were last seen in the company of the deceased. According to the prosecution, the deceased was last seen in the company of the accused by P.W.5 before his death. The learned counsel for the appellant submitted that except the evidence of P.W.5, whose evidence is inconsistent, there is no other evidence. To consider this circumstance, it would be appropriate to refer to the evidence of P.W.5. P.W.5 is the roommate of the deceased. He stated that on the date of incident, after returning from the institute, he and the deceased went to photo studio, and after taking the photos, while they were returning from the photo studio on the motorcycle, they saw the accused at Autonagar Bus Stop. Then the deceased stopped the motorcycle and asked him to go to his room and that he will go along with the accused. Thereafter when the deceased did not return till 10.00 pm, he called the deceased and the deceased told him that he would come in a short period and asked them to take dinner. However, the deceased did not return. Thereafter when the deceased did not return till 10.00 pm, he called the deceased and the deceased told him that he would come in a short period and asked them to take dinner. However, the deceased did not return. At about 1.00 pm, the accused came to him in a hurried manner and when they asked about the whereabouts of the deceased, they stated that he did not come along with them and proceeded to their room, packed their belongings and left the room in a hurried manner. Though P.W.5, in his chief-examination, deposed that the accused informed him that the deceased did not come with them and left to their room, packed their belongings and left the room in a hurried manner, but in his cross-examination, he admitted that two days prior to the death of the deceased, the deceased, himself and another shifted to another room, which is situated in another street, that he never visited the room of the accused and the accused also did not visit their new room, and that the room of the accused is not visible from their new room. When the room of the accused is not visible from the room of P.W.5, which is located in another street, it is highly doubtful that P.W.5 could have witnessed the accused going to their room, packing their luggage and vacating the room in hurried manner. Further, P.W.5 also admitted in his cross-examination that he saw the accused only when they were taking their luggage and that too on the road near the old room. Thus, there is inconsistency in his evidence. It is also unnatural that the accused after committing the offence would go and inform P.W.5 that the deceased did not come along with them. Having regard to the inconsistency in his evidence, as discussed above, the evidence of P.W.5 that the accused came to his room and on his questioning, they informed him that the deceased did not come along with them, and thereafter, he saw the accused leaving their room in a hurried manner after packing their belongings, cannot be believed. Further, in his evidence, P.W.5 stated that at about 10.00 p.m. on 05.06.2006, when he telephoned to the deceased on his mobile number, the deceased informed him that he would come within a short period and asked him to take food without waiting for him. Further, in his evidence, P.W.5 stated that at about 10.00 p.m. on 05.06.2006, when he telephoned to the deceased on his mobile number, the deceased informed him that he would come within a short period and asked him to take food without waiting for him. This was not stated by him before the Investigating Officer-P.W.17, who recorded his statement under Section 161(3) Cr.P.C. This omission in the 161(3) Cr.P.C. statement of P.W.5 creates any amount of doubt on the credibility and trustworthiness of his evidence. Hence, we hold that the prosecution also failed to prove this circumstance to connect the accused to the death of the deceased. The third circumstance relied upon by the prosecution to connect the accused to the death of the deceased is that the accused and the deceased were seen together by P.W.11, who is working as Cashier-cum-Salesman in a wine shop, just before the incident, and that in the Test Identification Parade conducted by P.W.12, the accused were identified by P.W.11. To consider this circumstance, it would be appropriate to refer to the evidence of P.W.11. P.W.11, in his evidence, stated that he never saw the accused. He stated that the accused might have come to the shop, but he does not remember and he cannot identify them. He further stated that he was not examined by the police. He denied that he identified the motorcycle on which the accused and another person came to his shop to purchase wine on the day of the incident. He stated that he identified the accused in the Test Identification Parade conducted by AJFCM, Anakapalle, as also at the Sub Jail, because prior to the Test Identification Parade, the accused were brought to his shop by the police. In view of this evidence of P.W.11, it cannot be said that P.W.11 has actually seen the accused and the deceased just before the incident. Therefore, we hold that the prosecution failed to prove this third circumstance also to connect the accused to the death of the deceased. The fourth circumstance relied upon by the prosecution to connect the accused to the death of the deceased is the arrest of the accused by P.W.17 on 16.06.2006 and recovery of M.O.4-gold chain from accused No.1 and the further arrest of accused No.2 at the instance of A1. The fourth circumstance relied upon by the prosecution to connect the accused to the death of the deceased is the arrest of the accused by P.W.17 on 16.06.2006 and recovery of M.O.4-gold chain from accused No.1 and the further arrest of accused No.2 at the instance of A1. The recovery of M.O.4-gold chain from accused No.1 cannot be believed because P.W.3-mother of the deceased in her evidence stated that M.O.4-gold chain and M.O.5-piece of M.O.4, were shown to her by the police in the Police Station on the very next day of the incident i.e. on 07.06.2006, when she went there from the hospital after seeing the dead body of the deceased. This apart, P.W.1, who lodged Ex.P1-report with P.W.13-Sub Inspector of Police, stated that he noticed a gold chain lying at the scene of offence. Further, P.W. 14, who stood as panch witness to the confession and recovery panchanama, stated that he did not see the handing over of gold chain by the accused and that it was recovered by the police. In view of this evidence of P.Ws. 1, 3 and 14, it cannot be said that M.Os. 4 and 5 were recovered from accused No.1 by P.W.17, basing on his confessional statement. Hence, we hold that the prosecution failed to prove the recovery of M.O.4-gold chain at the instance of accused No.1. The last circumstance relied upon by the prosecution to connect the accused to the death of the deceased is that the chance finger prints developed from prints taken from the broken beer bottles matched with the finger prints of the accused. It is the case of the counsel for the appellants that for taking the chance prints and finger prints of the accused, no permission was taken from the Magistrate, as is required under Section 5 of the Identification of Prisoners Act, 1920. It is also the case of the appellants-accused that they were arrested by the police after three or four days of the incident itself, and kept in police station and shown to have been arrested on 16.06.2006, and P.W.17 has obtained their fingerprints in the police station and sent them to P.W.15. To prove this circumstance, the prosecution relied upon the evidence of P.W.15-Inspector of Police, Finger Print Branch, CID, Srikakulam. At the time when the incident took place, he was Sub Inspector of Police. To prove this circumstance, the prosecution relied upon the evidence of P.W.15-Inspector of Police, Finger Print Branch, CID, Srikakulam. At the time when the incident took place, he was Sub Inspector of Police. It is his evidence that on receipt of request from P.W.17, on 06.06.2006, he visited the scene of offence and examined the broken pieces of beer bottles. That he developed three chance finger prints out of the broken pieces of the beer bottles and labelled them as A, B and C and photographed them. On 10.06.2006, he received the photocopies of the chance prints from the Clues Team. On examination of the photocopies of the chance prints, he found that the chance prints marked as ‘B’ were found unfit for comparison for want of ridge characteristics, while the other two chance prints, marked as ‘A’ and ‘C’ were fit for comparison. Thereafter, P.W.17 collected the fingerprints of both the accused and sent them to him for comparison. On comparison of the photocopies of the chance finger prints with those of the accused, he found that the chance prints marked as ‘A’ tallied with the right middle finger impression of accused No.1, while the chance finger prints marked as ‘C’, tallied with the right thumb impression of accused No.2. That Ex.P11 is the chart and Ex.P14 is his report. The learned counsel appearing for the appellants-accused relied upon the judgments of the Hon’ble Apex Court in Mahmood v. State of U.P. (3 supra) andMohd. Aman v. Babu Khan ( AIR 1997 SC 2960 )and submitted that finger prints were taken without obtaining permission from the Magistrate as contemplated under Section 5 of the Identification of Prisoners Act, 1920, and as such the same is inadmissible in evidence and cannot be looked into and the conviction of the accused based on such evidence cannot be sustained. To consider this contention of the counsel for the appellants-accused, it may be appropriate to refer to the judgments relied upon by the counsel for the appellant. In Mohd. To consider this contention of the counsel for the appellants-accused, it may be appropriate to refer to the judgments relied upon by the counsel for the appellant. In Mohd. Aman v. Babu Khan (4 supra), the Hon’ble Apex Court has given the benefit of doubt to the accused on the ground that the brass jug and other articles seized by the police were kept in the police station for five days without any justifiable reason and also on the ground that the finger prints of the accused were not taken with the permission of the Magistrate in accordance with Section 5 of the Identification of Prisoners Act, 1920, and further observed that though under Section 4 of the Identification of Prisoners Act, 1920, police are competent to take finger prints of the accused, to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence, it is eminently desirable that they were taken before or under the order of a Magistrate. In Mahmood v. State of U.P. (3 supra) also, the Hon’ble Apex Court held that the specimen finger-prints of the appellant were not taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act, which was another suspicious feature about conducting of investigation. Before we go into the relevancy of these judgments to the facts of the case, we deem it appropriate to refer to the relevant provisions of the Identification of Prisoners Act, 1920. Section 2(a) of the Act defines ‘measurements’ which include finger impressions and foot-print impressions. Sections 4 and 5 of the Act read as under: 4. Taking of measurements, etc. , of non-convicted persons-Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. 5. Sections 4 and 5 of the Act read as under: 4. Taking of measurements, etc. , of non-convicted persons-Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. 5. Power of Magistrate to order a person to be measured or photographed-If a Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the First Class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding. By virtue of the powers conferred on it by Section 8 of the Act, the State Government made A.P. Identification of Prisoners Rules, 1975. As per Rule 3 of the said Rules, measurements and photographs can be taken only at (a) Jails (b) Magistrate’s Court (c) police stations and out-posts and (d) police lock-ups. As per Rule 12 (xxiiii) (c), finger prints of all persons, who take part in violent crimes, whether political or non-political, involving injury to body, life or property, can be taken by the police. Rule 2(g) of the Rules defines ‘finger print slip’ means the finger print slip of a suspect taken on Form II (Annexure 1) by the Station House Officer and sent for search to the Bureau at Hyderabad with Form III (Annexure III) in order to know his antecedents. Now, we would like to examine the relevant provisions under the Code of Criminal Procedure. Now, we would like to examine the relevant provisions under the Code of Criminal Procedure. As per Section 2(h) of the Code of Criminal Procedure, ‘investigation’ includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. Under Section 156(1) of Cr.P.C., any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Therefore, the object of investigation is to collect the evidence. A bare reading of the above provisions contained in the Code of Criminal Procedure, the Identification of Prisoners Act and the A.P. Identification of Prisoners Rules, 1975, makes it crystal clear that the police officer has got the power and authority to take the fingerprints of a suspect even without the permission of the Magistrate. In Mohd. Aman v. Babu Khan (4 supra), relied on by the learned counsel for the appellants, the Hon’ble Apex Court, basing on the facts and circumstances of the case, where the articles seized were sent to the Finger Print Bureau five days after they were seized, at para 8 of the judgment observed that though under Section 44 of the Act, the police is competent to take finger prints of the accused, but to dispel and suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence, it is desirable that they were taken before or under the orders of Magistrate. The Hon’ble Apex Court basing on the facts and circumstances of the case, where there are glaring defects in the prosecution case, has made an observation that in those circumstances, it is desirable to take the finger prints to eliminate the possibility of fabrication of evidence which are involved in that case. We are afraid, that this judgment is in any way not helpful to the appellant as that was not the ratio decidendi laid down by the Hon’ble Apex Court that the police has no authority to take the finger prints of the appellants without the permission of the Magistrate. We are afraid, that this judgment is in any way not helpful to the appellant as that was not the ratio decidendi laid down by the Hon’ble Apex Court that the police has no authority to take the finger prints of the appellants without the permission of the Magistrate. Further, in Shankaria v. State of Rajasthan ( AIR 1978 SC 1248 ), when it was contended by the appellant therein that in view of Section 5 of the Identification of Prisoners Act, it was incumbent on the police to obtain the specimen thumb impression of the appellant before a Magistrate, and since that was not done, the opinion rendered by the Finger-Print Expert by using those illegally obtained specimen finger impressions, must be ruled out of evidence, the Hon’ble Apex Court observed that the said contention of the appellant therein appears to be misconceived and held that under Section4 of the Identification of Prisoners Act, police are competent to take the finger prints. The learned Sessions Judge, at para 50 of the judgment, has observed that the fingerprints were obtained from the accused when the accused were in the custody of police and it cannot be said that they are the prisoners detained in any prison and as such it is very much doubtful as to whether the Identification of Prisoners Act is applicable to the person outside the prison. Therefore, the learned Sessions Judge felt that there was no force in the said contention of the counsel for the accused. We are of the view that the observation of the learned Sessions Judge is not tenable. Section 4 of the Identification of Prisoners Act, 1920, provides that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards, shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner, and as such it applies to the appellants-accused in the present case, irrespective of the fact whether the finger prints were taken in jail or when the accused were in the custody of police. In view of our discussion, we hold that the permission of the Magistrate is not necessary for obtaining the finger prints of the accused. In view of our discussion, we hold that the permission of the Magistrate is not necessary for obtaining the finger prints of the accused. Now, we have to examine the manner in which the finger prints were taken and the evidentiary value of the opinion of the finger print expert. Even though P.W.15 upon comparison of the chance finger prints marked as ‘A’ and ‘C’ gave report stating that the chance finger prints marked as ‘A’ tallied with the right middle finger of accused No.1 and the chance finger print marked as ‘C’ tallied with the right thumb impression of accused No.2, the fact remains, P.W.15, in his cross-examination, stated that he has no recorded evidence to show whether the said chance finger prints were collected from a single broken piece or two broken pieces of the beer bottle. He also deposed that he did not note down the length and breadth of the broken glass pieces from which the chance prints were collected. That he has no recorded evidence to show as to how many smudged prints were there on the broken beer bottle pieces. He also admitted that he has no recorded evidence to show that he marked copies to P.W.17 and that he had acknowledged the same. Admittedly, P.W.15 deposed that he did not note down the length and breadth of the broken glass pieces from which the chance prints were collected. In view of non-taking the length and breadth of the chance finger prints from the broken pieces of beer bottles by P.W.15, and there being no recorded evidence produced by P.W.15 whether the chance finger prints were developed from a single piece of broken beer bottle or two pieces of broken beer bottle, we are of the considered opinion that the evidence of P.W.15 cannot be relied upon to connect the accused to the death of the deceased, particularly when there is no evidence produced to show that the accused and the deceased took liquor just before the death of the deceased. The fact that the deceased was not drunk is evident from the evidence of P.W.10, who having conducted autopsy over the dead body of the deceased stated that the stomach of the deceased did not contain traces of alcohol. Hence, we hold that the prosecution failed to prove the last circumstance also to connect the accused to the death of the deceased. Hence, we hold that the prosecution failed to prove the last circumstance also to connect the accused to the death of the deceased. It has become a rule of law that evidence of finger print expert is not a substantive evidence. It is well settled that opinion of expert must always be considered with great caution. Conviction cannot solely be based on expert opinion without substantive corroboration. Hence, we are of the considered opinion that it is highly hazardous to rely on the circumstantial evidence, which is brought on record in a very unsatisfactory manner and which does not inspire confidence in the mind of the Court. In Birdhichand Sarda v. State of Maharashtra ((1985) 1 SCR 98),His Lordships have observed that “A moral conviction strong or genuine cannot amount to legal conviction supported in law, it must be realised that the well established rule of criminal justice is that “foulder the crime higher the proof”. The prosecution having failed to establish the circumstances, much less each circumstance connecting the accused to the death of the deceased beyond all reasonable doubt, the conviction and sentence of the appellants for the charges under Section 302 read with Section 34 IPC and Section 379 IPC, recorded by the learned Sessions Judge, cannot be sustained and is liable to be set aside. In the result, the criminal appeal is allowed. The conviction and sentence imposed against the appellants/accused, by judgment dated 08.08.2008 passed in S.C. No. 5 of 2008 by the VIII Additional District and Sessions Judge (FTC), Visakhapatnam, for the charges under Section 302 read with Section 34 IPC and Section 379 IPC, is hereby set aside. The appellants shall be set at liberty forthwith, if they are not required in any other case, and the fine amount, if any paid by them, shall be refunded.