JUDGMENT U.V. Bakre, J. 1. The appellant before us faced trial in Sessions Case No. 38 of 2009 for offences of sodomy and murder punishable under Sections 377 and 302 of the Indian Penal Code (I.P.C) and he has challenged the Judgment dated 14/2/2011 and order of sentence dated 4/3/2011 passed by the learned Sessions Judge, North Goa, Panaji in the said case. 2. The prosecution case, in short, was as follows: Between 20.00 hours of 11/05/2009 and 08.30 hours of 12/05/2009, the accused had forceful, unnatural anal sex with Dharmalingam, since deceased, at Palm Grove Apartment, Upper Bazar, Ponda Goa. The accused had tied a jute thread around the neck of the deceased and during the course of having unnatural sex with him, the jute thread was pulled back in the process of deriving lust of unnatural sex as a result of which Dharmalingam was strangulated and he died on the spot. 3. The accused pleaded not guilty to the charge explained to him in respect of the said offences and claimed to be tried. 4. The prosecution, in order to establish the charges leveled against the accused, examined altogether 17 witnesses and got several documents exhibited in evidence. The Statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.). He denied the case of the prosecution as put to him in the form of questions and further stated that he was falsely implicated in the case. The accused did not examine any witness in his defence. 5. Upon assessment of the entire material on record, the learned Sessions Judge found the accused guilty of offences punishable under sections 377 and 302 of I.P.C. and convicted and sentenced him to undergo imprisonment for 5 years for the offence under section 377 of I.P.C and to pay fine of Rs. 5000/-in default, to undergo imprisonment for two months. The Sessions Judge also convicted the accused of the offence punishable under section 302 of I.P.C and imposed imprisonment for life and fine of Rs. 5000/-. Both the sentences have been ordered to run concurrently and benefit of set off under section 428 of Cr.P.C. has been given to the accused. The fine amount, if recovered, has been ordered to be paid as compensation to the family of the deceased. 5000/-. Both the sentences have been ordered to run concurrently and benefit of set off under section 428 of Cr.P.C. has been given to the accused. The fine amount, if recovered, has been ordered to be paid as compensation to the family of the deceased. Certain muddemal properties have been ordered to be destroyed after the appeal period is over and the silver lock and key of Rainbow make with no. 4105 and another key bearing no. 4105 have been ordered to be returned to Shri Parthsarathy, PW.11 whereas the brown leather purse has been ordered to be returned to the accused after the appeal period is over. 6. The accused is aggrieved by the impugned judgment and sentence and has preferred the present appeal. 7. We have heard Mr. Menezes, learned counsel appearing on behalf of the accused and Mr. Rivonkar, learned Public Prosecutor appearing on behalf of the State. 8. The witnesses examined by the prosecution and the material documents exhibited through them are as follows: PW.1, Shri Ramesh Parthasarathi, used to take pipeline contracts and the deceased as well as the accused were working with him. He lodged report with the police which is at Exhibit 10. PW.11, Shri Parthasarthy Porshuram is the father of PW.1. PW.2, Shri Dhiraj Naik is the draughtsman attached to Public Works Department, Ponda and he prepared the sketch of the site which is a part of Exhibit 14 colly. PW.3, Shri Gurudas Prabhu is a photographer who took photographs of the site and the surrounding area on 15/5/2009. The phonographs are at Exhibit 11 colly. PW.4, Shri Anish Pitambaram, PW.5, Shri Subin Vergease, PW.7, Shri Gunu Naik, PW.13, Shri Manoj Sondas and PW.17, Shri Mohanraj were all working with Parthasarathi-PW.1. PW.6, Shri Kishor Naik acted as one of the panch witnesses to the panchanama of the scene of offence/sketch and also to the Inquest panchanama, which are at Exhibit 26 colly and Exhibit 27, respectively. PW.8, Shri Dipu Naik acted as a panch witness to the panchanama of recovery of key which is at Exhibit 30. PW.10, Shri Rupesh Ashitkar acted as a panch witness to the panchanama of attachment of belongings of the deceased, which panchanama is at Exhibit 44. PW.9, Dr. Mandar Kantak conducted the post mortem examination on the dead body of the deceased. He also examined the accused. PW.10, Shri Rupesh Ashitkar acted as a panch witness to the panchanama of attachment of belongings of the deceased, which panchanama is at Exhibit 44. PW.9, Dr. Mandar Kantak conducted the post mortem examination on the dead body of the deceased. He also examined the accused. The post mortem examination report is at Exhibit 35 whereas the report of medical examination of the accused is at Exhibit 40. PW.12, Shri Sagar Patyekar is a police driver who drove the jeep which was used during the recovery of key. PW.16, Shri Raghunath Naik was the security in-charge at Nestle India Ltd. Lastly PW.14, Shri Sanjay Dalvi and PW.15 Shri Chetan Patil are the Investigating Officers. 9. Mr. Menezes, the learned counsel appearing on behalf of the accused, while assailing the impugned judgment, pointed out that the case of the prosecution is solely based on circumstantial evidence. He contended that the circumstances brought on record by the prosecution have not all been proved beyond reasonable doubt and that there are various missing links due to which the chain of evidence is not complete. He submitted that though the evidence of PW.9 reveals that there was forceful anal penetration, however, there is no sufficient evidence to hold that there was anal penile penetration. He canvassed that the evidence on record may at the most show that there was intimacy between the deceased and the accused and that they were sometimes found interfering with the private part of each other. According to the learned counsel, the said evidence is not enough to hold that the accused and the deceased were indulging in homosexual intercourse. He submitted that the evidence on record cannot at all prove that the accused and the deceased were last seen together. He also submitted that the recovery of key at the instance of the accused cannot prove anything against the accused since the place of recovery was an open place accessible to others and not a place in exclusive possession of the accused. He further pointed out that the accused was arrested on 16/05/2009, but the recovery panchanama was conducted on 26/05/2009 and this inordinate delay has not been explained. He further submitted that the key allegedly recovered at the instance of the accused has not been tried or tested on the lock. He further pointed out that the accused was arrested on 16/05/2009, but the recovery panchanama was conducted on 26/05/2009 and this inordinate delay has not been explained. He further submitted that the key allegedly recovered at the instance of the accused has not been tried or tested on the lock. He further pointed out that the second key which was produced by PW.1 and attached during the panchanama of the scene of offence was also not tried/tested on the lock. He, therefore, urged that alleged recovery of the key cannot be taken as incriminating circumstance against the accused. He further submitted that the accused had to work at different destinations and therefore, evidence of PW.16 to the effect that the accused did not report for work at Nestle India Ltd., Maulingem Bicholim after 10/05/2009 will not prove that he was absconding. He, therefore, submitted that the learned Sessions Judge has erred in convicting and sentencing the accused. He prayed that the impugned judgment and sentence be quashed and set aside and the accused be acquitted. 10. The learned counsel appearing on behalf of the appellant has relied upon the following judgments: (i) “Raosaheb Balu Killedar Vs. State of Maharashtra” [ 1995 Cri LJ 2632] (ii) “Khudeswar Dutta Vs. State of Assam” [ (1998) 4 SCC 492 ] (iii) “Salim Akhtar alias Mota Vs. State of U. P.” [ (2003) 5 SCC 499 ]. (iv) “Kora Ghasi Vs. State of Orisa” [ (1983) 2 SCC 251 ]. (v) “SharadBirdhichand Sarda Vs. State of Maharashtra” [ (1984) 4 SCC 116 ]. (vi) “Naz Foundation v. Government of NCT of Delhi & Ors. [2010 CRI.L.J. 94]. 11. Per contra, Mr. Rivonkar, the learned Public Prosecutor appearing on behalf of the State, supported the impugned judgment and sentence and submitted that there is evidence on record proving the following circumstances:- (i) half naked dead body of the deceased was found at 08.30 a.m. on 12/05/2009 in the office room which was locked from outside; (ii) the death of the deceased was homicidal due to asphyxia and there was anal intercourse proved by the evidence of the doctor; (iii) the accused and deceased were working with PW.1; (iv) the deceased was sleeping in the office during night time and the accused was staying in a room nearby; (v) the deceased and the accused were homosexuals who used to interfere with private part of each other. (vi) there was dispute between the accused and the deceased about 8 to 10 days prior to the incident; (vii) the key of the lock on the door of the said office was recovered at the instance of the accused and the said key has been identified by PW.7; (viii) the accused was not in his room between 22.00 hours of 11/05/2009 till 01.00 hours of 12/05/2009 and after his return, he looked to be in confused mood. (ix) there is no explanation regarding incriminating circumstances, coming from the accused in his Statement under Section 313 Cr. P.C. 12. The learned Public Prosecutor read out the relevant evidence of witnesses, which according to him, prove all the said circumstances, beyond reasonable doubt. Learned Public Prosecutor submitted that the above circumstances cumulatively prove that the accused alone is guilty of both the offences. He urged that the impugned judgment of conviction and sentence is unassailable and therefore, the appeal deserves to be dismissed. He relied upon the following judgments: (i) “Trimukh Maroti Kirkan Vs. State of Maharashtra” [ (2006) 10 SCC 681 ]. (ii) “ShriWilfred Rozario Fernandes Vs. State of Maharashtra” [2011 ALL MR (Cri) 451. 13. We have minutely perused the record and proceedings in the light of the submissions made by the learned counsel for the parties. 14. The point for determination is whether the conviction and sentence awarded by the learned Sessions Judge against the accused is proper and justified. 15. It is undisputed position that half naked dead body of the deceased was found on the floor near the toilet cum bathroom in the closed office of PW.1 at Palm Grove Apartment, Upper Bazaar, Ponda. There is also no dispute that the death of the deceased was homicidal and that there was recent blunt force anal penetration. 16. The evidence of PW.1, PW.4, PW.5, PW.6, PW.7 and PW.11 is not impeached insofar as the place at which and the circumstances in which the dead body of deceased was found in a semi nude condition, with baniyan and a jute thread around his neck and with both hands tied on the front side with towel. The evidence on record is not shaken with regard to the facts that the office was found closed and the door was locked from outside and it was opened by PW.1 with the key which was in his possession. The evidence on record is not shaken with regard to the facts that the office was found closed and the door was locked from outside and it was opened by PW.1 with the key which was in his possession. The said lock and the key were of make 'Rainbow' and having no. 4105. There are on record the documents like panchanama of Scene of offence and sketch (Exhibit 26 colly) and Inquest panchanama (Exhibit 27) both proved by PW.6; the sketch (Exhibit 14 colly) proved by PW.2 and photographs (Exhibit 16 colly) proved by PW.3. Circumstance no. (i) is therefore proved. 17. PW.9, Dr. Mandar Kantak, the Assistant Lecturer in Forensic Medicine Bambolim, conducted the post mortem examination over the dead body of the deceased Dharamlingam on 13/05/2009 between 9.45 a.m. to 12.30 p.m. He found ligature material around the neck horizontally in form of a brown coir thread. Underneath the ligature material over the skin of the neck, there was a ligature mark in the form of a pressure abrasion. PW.9 has given the description of the ligature material, the manner in which the same was tied around the neck, the size of the pressure abrasion, etc. The second injury noted by him was an abrasion, fresh red, of the size 1 cm. x 1 cm. over the lateral aspect of upper third left leg, 10 cms. below knee prominence and 41 cms. from heel of the left foot caused by blunt object or surface and ante-mortem in nature. A folded purplish white baniyan cloth was seen loosely encircling the upper part of the neck. The loose loop of cloth around the neck was found fitted tightly as a gag at level of the mouth around the face and head. A folded dirty white-brownish towel cloth with red checkered stripes was found tied around both hands on the front side. The faecal matter brownish colour and foul smelling was present at the anal opening. PW.9 preserved the anal hair, anal swabs and smear slides. The faecal matter was cleaned off and it was found that anal orifice was rounded, dilated, roomy and admitted two examining fingers. There was depression on the buttocks towards the anal opening. Absence of fine wrinkles in anal mucosa and two anal tags were seen, one anteriorly and the other posteriorly for mucosa. The faecal matter was cleaned off and it was found that anal orifice was rounded, dilated, roomy and admitted two examining fingers. There was depression on the buttocks towards the anal opening. Absence of fine wrinkles in anal mucosa and two anal tags were seen, one anteriorly and the other posteriorly for mucosa. Triangular areas of tears were seen for the anal sphincter mucosa: one posteriorly at 12 O'Clock, 1 cm. x 1cm x 0.5 cms; one anteriorly at 6 O'Clock position, 1 cm. x 0.5 cms x 0.5 cms and one on the left side at 9 O'Clock position, 1 cm. x 1 cm. X 0.5 cms. Fresh red blood was found on the tear and the tears were ante-mortem and recent prior to the death caused by blunt force penetration akin to hard, stiff, erect, and blunt penis. PW.9 preserved the viscera for chemical analysis and also preserved the scalp hair, right and left nail clippings, two buccal swabs and smear slides, two urethral swabs and smear slides, three anal swabs and smear slides and anal hair samples. PW.9 certified that the cause of death was due to asphyxia as a result of ligature strangulation vide injury no.1 which was ante-mortem and fresh in nature at the time of examination and necessarily fatal in the ordinary course of nature in a person whose hands were tied with towel cloth and a loose loop of baniyan cloth around the neck. He certified that there was evidence of recent, blunt force anal penetration. The autopsy report is at Exhibit 36. PW.9 referred the blood of the deceased for blood grouping to the Blood Bank. The blood group was certified by Dr. Clare D'Melo as “A” Rh negative. 18. The uncontroverted testimony of PW.9 read with his autopsy report and the circumstances in which the dead body of the deceased was found, undoubtedly, prove that the death of the deceased was homicidal and that there was recent blunt force anal penetration. Circumstance no. (ii), as pointed out by the learned Public Prosecutor, is proved beyond doubt. But the above evidence does not establish that there was penile anal penetration. 19. Circumstance no. (ii), as pointed out by the learned Public Prosecutor, is proved beyond doubt. But the above evidence does not establish that there was penile anal penetration. 19. The question is as to whether there was carnal intercourse against the order of nature with the deceased and if yes the same was committed by the accused and further whether the accused is the author of the death of the deceased. 20. PW.1, Shri Ramesh Parthasarathi lodged the report (Exhibit 10) against unknown person for strangulating and killing Dharamlingam. PW.1 and his father PW.11 used to undertake steel pipeline contracts. They had their office in Palm Grove Apartment and there were about 12 labourers working for them. The deceased Dharamlingam was working as pipeline fitter whereas the accused was working as rigger and was assisting the deceased. PW.4, PW.5, PW.7, PW.13 and PW.17 were also working for PW.1 and PW.11. The above facts are stated by all the above witnesses and are not denied by the accused. The above named witnesses have also stated that the deceased used to sleep in the office premises at Palm Grove Apartment, Upper Bazaar, Ponda during night time and that the accused along with other employees namely, PW.4, PW.5 and PW.13 used to stay in a room at Ponda which room was at a distance of 10 minutes walk from the office premises. The circumstances no. (iii) and (iv) are thus proved. 21. PW.1 deposed that the workers were saying that the accused was having homosexual relations with the deceased. Thus, PW-1 is not personally aware of the fact that the accused was having homosexual relations with the accused. PW.4 stated that the relation between the accused and the deceased were intimate and he had seen the accused interfering with the private parts of the deceased and that both were homosexuals. In his cross-examination, PW.4 deposed that he saw the intimate relations between the accused and the deceased about 3 to 4 months prior to this incident and at Bethoda Mcdowel site. He stated that the deceased was like a guide (guru) to him and he did not want to tarnish the name of the deceased and therefore, he had not disclosed about the unnatural relationship between the accused and the deceased to his employer. He stated that the deceased was like a guide (guru) to him and he did not want to tarnish the name of the deceased and therefore, he had not disclosed about the unnatural relationship between the accused and the deceased to his employer. PW.5 stated that the relation between the accused and the deceased were intimate and he had seen the accused interfering with the private parts of the deceased and that both were homosexuals. He deposed that the accused used to fiddle with the private part of the deceased and the deceased with that of the accused and that he had seen this behaviour of both at the construction site on many occasions. In his cross-examination, PW.5 deposed that he had seen the unnatural relations between the accused and the deceased at Nestle factory, Bicholim, but he did not inform his employer about the same. PW.13 stated that there were homosexual relations between the deceased and the accused and that he was told so by the deceased himself. Since the above statement allegedly made by the deceased to PW.13 was not in relation to the cause of death of the deceased, the same is not covered by Section 32 of the Evidence Act and it is not admissible being hearsay. Nobody had seen the accused having carnal intercourse against the order of nature with the deceased. The nature of homosexual relation between the accused and the deceased, as witnessed by the above witnesses, was to the extent of fiddling with the private part of each other. The unnatural offence covered by Section 377 of I.P.C. consists of penetration per annum with another man, woman or animal. The testimonies of PW.1, PW.4, PW.5, PW.7 and PW.13 would at the most establish that there was intimacy between the deceased and the accused and they used to fiddle with the private parts of each other. Even if the accused and the deceased are considered as homosexuals and it is held that the circumstance no. (v) is proved, that is not sufficient to jump to the conclusion that there was relationship of carnal intercourse between the deceased and the accused. Be that as it may, there is no evidence on record to prove that there was carnal intercourse with the deceased committed by any person. (v) is proved, that is not sufficient to jump to the conclusion that there was relationship of carnal intercourse between the deceased and the accused. Be that as it may, there is no evidence on record to prove that there was carnal intercourse with the deceased committed by any person. It is pertinent to note that initially even police were suspecting two persons namely one Naresh Borkar and the accused. 22. On 14/5/2009, PW.9, Dr. Kantak, received request from PW.15, Shri C. L. Patil, the then Police Inspector, of Ponda Police Station to conduct the medical examination of two suspects , namely, Naresh s/o. Sazoro Borkar and Shahul Hamid, the accused. The request letter is at Exhibit 39. PW.9 examined the said Borkar and the accused. The report of medical examination of Naresh Borkar has not been produced on record and there is no explanation as to why the same has not been produced. Insofar as the accused is concerned, PW.9 found that there was nothing to suggest that he was incapable of sexual intercourse/penetration. However, on physical and genital examination, there was no positive genital finding and therefore, no definite opinion as to sexual intercourse/penetration by the accused could be given by PW.9. PW.9 preserved the urethral swabs and smear slides. Even the anal swabs, smear slides and anal hair were preserved for serological and biological examination. The medical examination report of the accused is at Exhibit 40. The accused was also referred to Goa Medical College for blood grouping. PW.9 forwarded the preserved materials to Ponda Police Station along with forwarding note and prescribed form for onward dispatch to CFSL, Hyderabad. The CFSL report regarding the urethral swabs and smear slides, buccal swabs and smear slides, anal swabs and smear slides and anal hair of the accused has been produced on record as Exhibit 70, but the same does not confirm the presence of semen or gonococci on them. 23. Thus, from the evidence of PW.9 and the CFSL report (Exhibit 70), it cannot be certainly said that there was penile penetration into the anus of the deceased. The medical evidence only establishes that there were tears for the anal sphincter mucosa caused by blunt force penetration. That can be by any blunt object. 23. Thus, from the evidence of PW.9 and the CFSL report (Exhibit 70), it cannot be certainly said that there was penile penetration into the anus of the deceased. The medical evidence only establishes that there were tears for the anal sphincter mucosa caused by blunt force penetration. That can be by any blunt object. The medical evidence given by PW.9 does not prove penile penetration and insofar as the accused is concerned, the same does not help the prosecution in any manner as there was no evidence to prove that there was sexual intercourse/penetration by the accused. 24. First of all, therefore, the alleged incidence of carnal inter course, whether consensual or non-consensual with the deceased, by any person is not proved beyond reasonable doubt. The offence punishable under Section 377 of I.P.C. is not proved against the accused. 25. According to PW.1, there used to be quarrels between the deceased and the accused sometimes at the site and sometimes in the office. In his cross-examination, PW.1 stated that he had not personally seen the accused and Dharamlingam fighting with each other. Therefore, his evidence about quarrels between the deceased and the accused is hearsay. PW.13 deposed that there was a quarrel between the deceased and the accused at Bicholim about 8 to 10 days prior to the death of Dharamlingam. He stated that they used to take food at Aunty Bar at Bicholim during their work at Bicholim and one day, the deceased had said something to the accused and in response the accused had assaulted the deceased, due to which the deceased threw the rice plate on the face of the accused in retaliation. According to PW.13, the accused had reacted with anger and had stated that he would teach the deceased a lesson. The above incident of quarrel had not occurred on the date of the death of the deceased and it is not the case of the prosecution that the accused and deceased had not met with each other during the period after the said quarrel and before the death of the deceased. Since there used to be quarrels between the accused and the deceased, such minor quarrel which took place about 8 to 10 days prior to the death of the deceased cannot be taken as so serious to give a cause to the accused to commit murder of the deceased. The circumstance no. Since there used to be quarrels between the accused and the deceased, such minor quarrel which took place about 8 to 10 days prior to the death of the deceased cannot be taken as so serious to give a cause to the accused to commit murder of the deceased. The circumstance no. (vi) that there was some dispute between the accused and the deceased about 8 to 10 days prior to the incident, even if the same is taken to have been proved, is not sufficient to hold that the accused committed the murder of the deceased. 26. Since the prosecution has proved that the office premises in which the deceased was found, was closed from all sides and in front locked from outside, the recovery of the key at the instance of the accused, if proved beyond reasonable doubt, would have assumed much importance if the said key was proved to be of the same lock which was on the door of the office premises. 27. It is duly proved by the evidence on record that one key of lock to the door of office used to remain with PW.1 whereas the second key was kept on the window sill and used by Dharamlingam (deceased) and Guno Naik (PW.7). The office timings were from 08.30 hours to 17.30 hours. PW.7 used to keep the key on the window sill while leaving the office and the deceased used to open the office with that key, stay in the office overnight and used to keep back the key on the window sill in the morning. These facts are duly stated by PW.1 and PW.7 and their testimonies, in this regard, are not at all shaken in the cross examination. 28. PW.8, Shri Dipu Naik acted as one of the panch witnesses for the panchnama of the recovery of the key at the instance of the accused. The said panchanama was conducted by PW.14, PSI, Dalvi. According to PW.8, the accused disclosed in Hindi that he took away the key of the lock which he had put on the office door and had thrown the same on the way while going home and would show that place. Thereafter, according to PW.8, the accused took them near one electric pole in Upper Bazar, Ponda where the street light was burning. Thereafter, according to PW.8, the accused took them near one electric pole in Upper Bazar, Ponda where the street light was burning. There was a small culvert near the electric pole and a lot of garbage at the foot. According to PW.8, they searched for the key but could not find the same and thereafter the accused searched for the same in the garbage and picked up the key and handed over the same to PW.14, P.S.I Dalvi. PW.8 deposed that the key was of steel having silver colour with a hole in the middle and there were scratches to it and a mark 'Rainbow' on one side and no. 4105 on the other side. Photographs of the key were taken and the key was put in a transparent polythene bag which was duly sealed. PW.8 has identified the key, M.O.11 as the same which was recovered at the instance of the accused. In his cross-examination, PW.8 deposed that he had personally seen the key and the number on the key. He identified himself in the photographs at serial nos. 1, 2, 5, 9 and 10 which are at Exhibit 16 colly. He also identified the accused in some of those photographs while searching the key in the garbage and where he is seen with the key. The recovery panchanama is at Exhibit 30. 29. PW.12, Sagar Patyekar, the police driver, deposed that on 29/5/2009, he was told by P.S.I Dalvi that they had to proceed for recovery panchanama in the evening at about 19.15 hours. He stated that one Shahul Hamid was made to sit in the jeep behind and two panchas also sat and he drove the jeep as per the direction of the said accused and took it towards Shantinagar-Ponda near a bridge and they noticed a dry nullah near the said bridge and an electric pole nearby. PW.12 stated that there was garbage near the said electric pole and the accused started searching in the garbage and even one constable started searching in the garbage and the accused retrieved a key from the garbage which was rusty and of silver colour and there was a name inscribed on it and a number 4105. The said key was attached under the panchanama and he had clicked photographs which are at Exhibit 16 colly. 30. The said key was attached under the panchanama and he had clicked photographs which are at Exhibit 16 colly. 30. As already stated earlier, one of the keys of the lock to the door of office premises used to remain with PW.1 and the other was kept on the window sill for the use of PW.7 and of the deceased. PW.1 and PW.7 have described the said key as a silver colour key bearing number 4105 with the name Rainbow and the lock of silver colour having the same name and number. The evidence of PW.1 reveals that he had opened the lock with the key which was in his possession. During the panchanama of the scene of offence and sketch which are at Exhibit 26 colly, the lock bearing the name 'Rainbow' with six levers and having no. 4105 and the key with the same details both of which were produced by PW.1 were attached, packed and sealed. 31. We are not inclined to accept the contention of the learned Counsel appearing on behalf of the accused that where the recovery was effected from a place which was open or accessible to others, the same would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. However, what weight should be given to such recovery made from an open place accessible to others depends upon the facts and circumstances of each case. In the case of “Kora Ghasi” (supra), relied upon by the learned Counsel for the accused, the Apex Court held that no much importance can be attached to the recovery as the same was from an open place accessible to all. In “Trimbak Vs. State of M.P.” ( AIR 1954 SC 39 ), it was held that when the field from which the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. In the case of “Salim Akhtar alias Mota”(supra), relied upon by the learned Counsel for the accused, the Apex Court observed that since the recovery of incriminating articles was from an open place accessible to all, inference of possession by the accused is doubtful. 32. In the case of “Salim Akhtar alias Mota”(supra), relied upon by the learned Counsel for the accused, the Apex Court observed that since the recovery of incriminating articles was from an open place accessible to all, inference of possession by the accused is doubtful. 32. In the present case, the recovery of the key was not only made from an open place accessible to all but also from garbage dumped at that place. We are not impressed by the evidence of recovery of the key in the present case. PW.8 stated that they had first searched for the key but could not find it and thereafter the accused searched for the same, found it and handed over the same to PW.14. However, PW.12 stated that the accused started searching for the key and even one constable started searching for the same and the accused retrieved the same. PW.12 did not state that the panchas had searched for the key. The offence took place on 11/05/2009. The accused was arrested on 16/05/2009 under the arrest panchanama which is at Exhibit 55. However, the recovery panchanama was conducted on 29/5/2009. The delay of about 13 days from the date of arrest in conducting the said panchanama has not been explained. The best evidence to prove that the key recovered at the instance of the accused was the same which was used for closing the lock to the door of the office premises was to try the same on that lock in front of the panchas. However, there is absolutely no evidence on record to show that the said two keys i.e the key (M.O.3) produced by PW.1 and the key (M.O.11) recovered at the instance of the accused were tried on the said lock put to the door of the office premises, in the presence of panchas after they were attached but before they were packed and sealed to prove that the said lock could be opened with the help of the said two keys. If the said key (M.O.11) allegedly recovered at the instance of the accused cannot open the said lock, the position would be wholly compatible with his innocence. Though the said single key (M.O.11) has been identified by PW.7, however the same has not been identified by PW.1. PW.11, the father of PW.1 was not shown the said keys, for him to identify the same. Though the said single key (M.O.11) has been identified by PW.7, however the same has not been identified by PW.1. PW.11, the father of PW.1 was not shown the said keys, for him to identify the same. It is well settled that in criminal trial, if two views are possible and one of them favours the accused, then that which favours the accused should be accepted. In such circumstances, the recovery of a single key at the instance of the accused, even if taken for the time being, to have been proved, cannot definitely prove nexus with the crime. The circumstance no. (vii) i.e. alleged recovery of the key does not inspire confidence and in our considered opinion, cannot be read against the accused. 33. PW.4, Anish Pitambaram along with Subin (PW.5), Manoj (PW.13) and accused was staying in separate room at Ponda, which is at about 10 minutes walking distance from the office. According to PW.4, on 10/05/2009, Subin, accused, deceased and he came back from Nestle company at Bicholim to Ponda and on 11/05/2009, the deceased stated that he had urgent work at Syngenta factory Corlim and left in the morning from the office and came back before 2.00 p.m. in the afternoon. According to him, this was learnt by him from the supervisor. Said supervisor has been examined as PW.17. But PW.17 has not stated so. PW.4 and his room mates, thereafter, took food in the afternoon and slept in the room till around 6.00 p.m. to 6.30 p.m. and he left the room along with Subin and the accused before 7.00 p.m., went to Ponda market area, moved there, had food and drinks and came back to the room around 22.00 hours. PW.4 stated that the accused told him that he had some work and would come later to the room and to keep the room open. According to PW.4, the accused came back to the room after midnight at around 01.00 hours and at this time the accused was drunk and appeared to be in a confused mood. PW.4 asked the accused as to where he had gone, but the accused did not talk to him and went to sleep. PW.4 stated that the accused left the room on the next morning around 08.00 hours, but he did not know as to where he went. PW.4 asked the accused as to where he had gone, but the accused did not talk to him and went to sleep. PW.4 stated that the accused left the room on the next morning around 08.00 hours, but he did not know as to where he went. On 12/05/2009, the supervisor named Mohanraj phoned him before 10.00 hours and informed that some person had killed Dharamlingam. PW.5-Subin Vergease was working with Parthasarthi-PW.1 as welding helper. He corroborated the testimony of PW.4. 34. PW.13-Manoj deposed that on 11/05/2009, the accused, PW.4 and PW.5 had taken leave whereas the deceased went to Sygenta for work and came back to the office during the evening time. PW.13 learnt on the next morning that the deceased had been killed by some person on the previous night. The testimony of PW.13 is not shaken in his cross-examination. 35. The evidence of above witnesses does not reveal that the accused and the deceased were seen together on 11/05/2009 or that on 11/05/2009 after the deceased had returned to the office for sleeping, the accused had also come there. There is no evidence on record to prove that the accused had come to the office on 11/05/2009, at any time. There were other labourers working with PW.1 and PW.11 and any of them could have come to the office. We find that the observation of the learned Sessions Judge that the accused alone had access to the deceased on the night of 11/05/2009 is not borne out from the evidence on record and cannot be accepted. Hence, merely because the accused had left his room by about 22.00 hours and had returned back at about 01.00 hours and appeared to be nervous, etc. that would not be sufficient to prove that the accused committed murder of the deceased. 36. PW.15, P.I. Chetan Patil has produced an attested extract of attendance issued by Nestle India Ltd., Maulingem-Bicholim showing the attendance of the deceased and the accused at internal page 127 as on 10/5/2009. PW.16, Shri Raghunath Naik who was working as security in charge at Nestle India Ltd. at Maulingem Bicholim deposed that his duty was to monitor the movement of the workers and the material and employees of Nestle India Ltd. in and out of the factory premises. He stated that their company maintains Entry Registers of workers and employees. PW.16, Shri Raghunath Naik who was working as security in charge at Nestle India Ltd. at Maulingem Bicholim deposed that his duty was to monitor the movement of the workers and the material and employees of Nestle India Ltd. in and out of the factory premises. He stated that their company maintains Entry Registers of workers and employees. He stated that PW.1 had taken a contract of fluid line as a sub contractor and there were several persons working with PW.1 as labourers including Shahul Hamid, Dharmalingam etc. According to PW.16, on 10/5/2009, the accused reported for work at 09.00 hours and went out at 14.00 hours whereas, Dharmalingam, since deceased, had also joined duty on the same morning at the same time and had left the factory at 14.00 hours like the accused. PW.16 stated that both had not reported for work from the next date. It is the contention of the learned Public Prosecutor that from 11/5/2009 after the incident till the arrest, the accused was absconding and this is another circumstance against the accused. First of all, the accused was not working permanently at any given site. The site of work used to change periodically. The arrest panchanama which is at Exhibit 55 was drawn at Ponda Police Station. There is no evidence on record to establish as to how and why the accused had come at Ponda Police Station for getting arrested. According to PW.14, on the basis of investigation and the statements recorded by him, he suspected the accused and placed him under arrest on 16/05/2009. There is no evidence showing that the accused was hiding somewhere or had gone out of Goa and that he had to be searched and traced. Merely because the accused was arrested by the police on 16/5/2009, i.e. after about 4/5 days from the date of murder of the deceased, it cannot not automatically mean that he was absconding on account of fear. 37. In the case of “Sharad Sarda” (supra), the Apex Court has laid down certain conditions that must be fulfilled before the case against the accused can be said to be fully established on circumstantial evidence. 37. In the case of “Sharad Sarda” (supra), the Apex Court has laid down certain conditions that must be fulfilled before the case against the accused can be said to be fully established on circumstantial evidence. The said conditions are as follow: (1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully 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. 38. It is also well settled that suspicion, howsoever grave it may be, cannot take place of proof. 39. In the present case, as can be seen from the discussion supra, some of the circumstances have not been proved beyond reasonable doubt. Even otherwise, the chain of evidence is not complete and is broken at vital places and the prosecution has not succeeded in proving facts from which a reasonable inference can be drawn regarding the guilt of the accused. Merely because the accused has not given any explanation to any circumstance put to him under section 313 of Cr. P.C., that cannot amount to supplying any link to join the said chain. The ratio laid down in the case of “Trimukh Kirkan” (supra) and “ShriWilfred Fernandes” (supra) is not applicable to the facts of the present case. The circumstance no. (ix) is not relevant in the present case. 40. We do not deem it necessary to refer to other citations relied upon by the learned Counsel for the accused, though we make it clear that we have perused them and considered them as well. 41. The evidence on record is not sufficient to prove the guilt of the accused for the offences for which he has been charged. 40. We do not deem it necessary to refer to other citations relied upon by the learned Counsel for the accused, though we make it clear that we have perused them and considered them as well. 41. The evidence on record is not sufficient to prove the guilt of the accused for the offences for which he has been charged. The impugned judgment of conviction rendered by the learned Sessions Judge, in our view, is not sustainable as the same is not in accordance with the settled principles of criminal jurisprudence. The accused is entitled to be acquitted. 42. In the result: (a) the appeal is allowed. (b) the impugned judgment and order is quashed and set aside. The accused is acquitted of the offence punishable under Sections 377 and 302 of I.P.C. (c) The accused shall be set free, if he is not required in any other case. (d) Muddemal properties shall be dealt with in the manner as directed by the learned Sessions Judge, in the impugned judgment.