JUDGMENT MOHAN M. SHANTANAGOUDAR J.-The judgment and order of acquittal passed by the Fast Track Court-II, Bangalore, in S.C. No. 680/2005 is called in question in this appeal. The accused were tried and acquitted for the offence under Section 302 read with Section 34 of IPC. 2. The case of the prosecution in brief is that both the accused as well as the deceased and PW20 were classmates and friends. All of them were pursuing studies in II Year P.U.C. All four of them failed in the annual examination conducted in the month of April 2004. Accused No. 2, PW20 and deceased got some private jobs and were earning. However, accused No. 1 was unemployed. Since he was in dire need of money, he decided to cheat his own friends. He informed the deceased and PW20 that he knows some official in P.U.C. Board and he can help them to get through P.U.C. examination by making some other person to write the examination for them. In other words, accused No. 1 assured the deceased and PW20 that somebody would impersonate them in the examination for getting them passed; believing the words of accused No. 1, the deceased gave Rs. 2,000/- to accused No. 1 and PW20 gave Rs. 1,500/- to accused No. 1 as advance. Accused No. 2 co-operated with accused No. 1 in respect of these transactions. However, accused No. 1 did not help the deceased in the Supplementary examination and consequently, the deceased used to ask accused No. 1 for refund of money. Since accused No. 1 did not have money to repay, he decided to commit murder of the deceased. At about 3.00 p.m. on 13.02.2005, accused No. 1 contacted the deceased on his mobile phone and asked the deceased to come to the School premises under the guise of helping him in getting through the examination. The deceased informed accused No. 1 that he would reach the School premises by about 6.30 p.m. In the meanwhile, accused No. 1 requested accused No. 2 to help him for the commission of murder of the deceased, for which proposal accused No. 2 readily agreed. An exhibition was arranged by Khadi Board in the School premises. The deceased informed accused No. 1 that he would reach the School premises by about 6.30 p.m. In the meanwhile, accused No. 1 requested accused No. 2 to help him for the commission of murder of the deceased, for which proposal accused No. 2 readily agreed. An exhibition was arranged by Khadi Board in the School premises. The deceased came to the spot about 6.30 p.m. as promised and thereafter all the three i.e., both the accused as well as the deceased went round the exhibition at about 7.30 p.m. The accused took the deceased behind the quarters of watchman under the guise of passing urine. Accused No. 1 took out the kerchief and encircled the same around the neck of the deceased and asked accused No. 2 to hold the kerchief around the neck of the deceased tightly and accused No. 1 took out the knife from his pant and stabbed the deceased on vital parts of the body. Thereafter, he picked up a stone lying by the side and dropped it on the head of the deceased. On being convinced that the deceased has breathed his last, both the accused left the place. While going away, they took the mobile phone and Rs. 820/-from the pocket of the deceased-Sunil Kumar. Accused No. 1 concealed the blood stained clothes and mobile phone of the deceased at a place in his room. On the next day morning, PW1 the brother of the watchman noticed the dead body and approached the police of Central Police Station and lodged the complaint Ex.P1 before the PSI. The said Police Officer has not been examined before the Court. The police after investigation laid the charge sheet against both the accused for the offence under Section 302 read with 34 IPC. 3. In order to prove its case, the prosecution examined 29 witnesses and got marked 51 exhibits and 23 material objects. On behalf of the defence no witness has been examined. The Trial Court on evaluation of the material on record and after hearing acquitted the accused. 4. PW1 is the complainant. He lodged the complaint as per Ex.P1. He is the brother of the watchman. He is not an eye witness to the incident. PW2 is the mother of the deceased. PW3 is the brother of the deceased. Both of them have deposed that the deceased had paid Rs. 4. PW1 is the complainant. He lodged the complaint as per Ex.P1. He is the brother of the watchman. He is not an eye witness to the incident. PW2 is the mother of the deceased. PW3 is the brother of the deceased. Both of them have deposed that the deceased had paid Rs. 2,000/- in favour of accused No. 1 for the purpose of getting him passed in P.U.C. examination. They have also deposed that on the date of the incident, the deceased received 2-3 telephone calls from the accused and consequently the deceased went towards the School premises to meet the accused. In other words, PWs.2 and 3 speak about the aspect of motive and about the receipt of telephone calls of the accused by the deceased to go near the School. PWs.4 and 5 are the mahazar witnesses to Exs.P5 and P6. They have turned hostile. PWs.6 and 7 are the owners of telephone booths who were supposed to speak about the accused making calls to the deceased. They have turned hostile. PW8 has deposed about the last seen circumstance near the spot. PWs.9 and 10 are the Police Constables who participated in the investigation at different levels. PW11 is the attender of the College wherein the dead body was found.PW12 is the Police Constable who took certain materials to the Forensic Science Laboratory. So also PW13 is the Police Constable who took the SIM card of the deceased M.O.5 for verification. PW14 is the Police Constable who carried the FIR to the jurisdictional Magistrate. PW15 is the Officer of the Bharath Sanchar Nigam Limited (hereinafter referred as BSNL for short). He has deposed that the SIM Card M.O.5 does not belong to BSNL. PW16 is the employer of the deceased. He has deposed that the mobile phone M.O.8 and the SIM card were provided to the deceased by the company of PW16 and the said SIM card belongs to BSNL. PW17 is the mahazar witness for seizure of mobile phone calls to the deceased and etc. under Ex.P6.PW18 is the Engineer who gives sketch to the scene of offence as per Ex.P19. PW19 is the Officer of Forensic Science Laboratory. His report is at Ex.P33. The records reveal that the said Officer was taken to the spot itself for collecting the blood stains from the spot. He found the kerchief lying beneath the dead body. under Ex.P6.PW18 is the Engineer who gives sketch to the scene of offence as per Ex.P19. PW19 is the Officer of Forensic Science Laboratory. His report is at Ex.P33. The records reveal that the said Officer was taken to the spot itself for collecting the blood stains from the spot. He found the kerchief lying beneath the dead body. PW20 is the classmate of the accused and deceased. He also had paid money to accused No. 1 for getting him passed in the examination. He has turned hostile. PW21 is the Police Constable who showed the spot to the Engineer for drawing the sketch. PW22 is the Police Constable who carried the dead body to Post Mortem examination. PWs.23 and 24 are the witnesses for inquest panchanama Ex.P38. Both of them have turned hostile.PW25 is the Doctor who conducted post mortem examination and the post mortem report is as per Ex.P39. PW26 is the coin booth operator. He had come to the coin booth to PW27 for operating purposes. The evidence of PWs.26 and 27 is to the said effect. The case of the prosecution is that, from this booth the accused called to the deceased over phone. But their evidence does not reveal so. PW28 is the Investigation Officer who completed the investigation and laid the charge sheet. PW29 is the owner of the shop. He had set up a shop in exhibition. 5. The learned Advocates on record have submitted their respective arguments and have taken us through the material on record including the judgment of the Court below. 6. The following circumstances arise for our consideration: (i) Homicidal death. (ii) Last seen circumstance. (iii) Motive (iv) Abscondance (v) Seizure of mobile phone of deceased from accused No. 1. (vi) Kerchief of accused No. 1 allegedly seized at the behest of accused No. 2. (vii) The accused called the deceased from the telephone booth of PWs.26 and 27 on that day. 7. The death in question is a homicidal death. The same is not in dispute. Even otherwise, the evidence of the Doctor and the Post Mortem report clearly reveals that the death is due to shock and hemorrhage as a result of multiple injuries sustained. The deceased has sustained as many as 17 injuries. Almost all the injuries are either stab wounds or incised wounds. The same is not in dispute. Even otherwise, the evidence of the Doctor and the Post Mortem report clearly reveals that the death is due to shock and hemorrhage as a result of multiple injuries sustained. The deceased has sustained as many as 17 injuries. Almost all the injuries are either stab wounds or incised wounds. From the said material it is clear that the death is homicidal death. 8. The last seen circumstance is spoken to by PW8. It is also relevant to note that PWs.2 and 3 mother and brother of the deceased have also deposed that the deceased received 2-3 calls from the accused in the afternoon of 13.02.2005 and consequently the deceased left the house by telling PWs.2 and 3 that he would go to meet the accused near the school. The statement of PW2 is recorded after one week of the incident in question. PW2 in the cross-examination admitted that the police have recorded her statement only after one week after the incident. She has also deposed that she came to know about the death of her son on 14.02.2005 at about 5.00 p.m., i.e., on the next day of the incident. The same is the evidence of PW3. Both of them did not know about the death of the deceased till 5.00 p.m. of the next day of the incident. Though they made attempts to find out the whereabouts of the accused by contacting their relatives, they did not choose to lodge the complaint for one whole day. Even after coming to know about the death of the deceased on 14.02.2005, PW2 did not venture to go to Police Station and inform about the alleged complicity of accused Nos. 1 and 2. She has also admitted in the cross-examination that the accused had come to her house about three months prior to the incident for the first time. PW3 has also admitted that only once the accused had come to his house that too about three months prior to the incident in question. But the fact remains that PWs.2 and 3 did not see the accused taking away the deceased from that day from the house. The last seen circumstance as aforementioned is spoken to by PW8. PW3 has also admitted that only once the accused had come to his house that too about three months prior to the incident in question. But the fact remains that PWs.2 and 3 did not see the accused taking away the deceased from that day from the house. The last seen circumstance as aforementioned is spoken to by PW8. According to him, he saw the accused with the deceased at about 7.00 p.m. on13.02.2005 in the exhibition and at that point of time, the deceased introduced the accused to PW8. He also saw the news item published in Sanjevani newspaper that the deceased had died. Such newspaper item was read by him on 15.02.2005. However did not choose to contact either the family members of the deceased or the police immediately thereafter. According to PW8, his statement is recorded on 19.02.2005 in the police station. The said statement is not forthcoming on record. On the other hand, the records reveal that the statement of PW8 is recorded on 21.02.2005. Absolutely no valid reasons are forthcoming from the prosecution as to why there is belated recording of the statement of such important witness. Moreover, PW8 has admitted that he is a family friend of the deceased family and that PW3 is his classmate and friend. Even on the date of giving evidence also, he had come to the Court along with PW3. Though he was a close friend of PW3 and though he used to visit the house of deceased/PW3, PW8 did not choose to inform the family members of the deceased about he seeing the deceased together with the accused till 20.02.2005. These facts have made the Trial Court to suspect the genuineness of the version of PW8. In view of the material, the Trial Court in our considered opinion is justified in coming to the conclusion that the last seen circumstance is not proved by the prosecution. 9. So far as the motive is concerned, the two witnesses available are the version of PWs.2 and 3. 10. PW2 has admitted in the cross-examination that she did not know personally about the deceased paying Rs. 2,000/- to accused No. 1. However, she has deposed that she came to know through PW3. The other independent witness relating to motive i.e., PW20 has turned hostile. 10. PW2 has admitted in the cross-examination that she did not know personally about the deceased paying Rs. 2,000/- to accused No. 1. However, she has deposed that she came to know through PW3. The other independent witness relating to motive i.e., PW20 has turned hostile. Though the evidence of PW3 is not shaken in the cross-examination by the defence relating to the circumstance of motive, the Trial Court has proceeded to disbelieve the case of the prosecution in its entirety because of other attending circumstances. The Trial Court on evaluation of the material on record has concluded that the prosecution has tried to improve its case from time to time. 11. So far as abscondance is concerned, there is no material to show that the accused absconded. Nothing is found on record to show that the accused were searched by the prosecution. Only after recording the statements of PWs.2 and 3, the police must have suspected the hands of accused Nos. 1 and 2. Accused No. 2 was arrested on 19.02.2005, whereas accused No. 1 was arrested on 25.02.2005. The incident has occurred on 13.02.2005 and the complaint was lodged on 14.02.2005. Since there is no material to show that the inspite of the efforts by the police the presence of the accused was not secured, the Trial Court has rightly not given much importance to the circumstance of abscondance. 12. The next circumstance relied upon by the prosecution is seizure of mobile of the deceased from the custody of accused No. 1. PW17 is a witness for the said circumstance. According to PW17 the accused had hidden the mobile phone in a plastic cover in his almirah and he produced the same which was seized under Ex.P6. The said seizure was conducted on 19.02.2005, as per the version of PW17. But the evidence of PWs.2 and 3 falsifies the case of the prosecution in respect of seizure of mobile. They have emphatically deposed that they saw the mobile of the deceased in the Police Station on 14.02.2005 itself and the Police showed all the belongings of the deceased including the mobile on 14.02.2005 in the Police Station. Since the mobile was very much in the custody of the police on 14.02.2005 itself, the recovery aspect as spoken to by PW17 falls to the ground. 13. Since the mobile was very much in the custody of the police on 14.02.2005 itself, the recovery aspect as spoken to by PW17 falls to the ground. 13. So far as the seizure of kerchief at the behest of accused No. 2 is concerned, the Trial Court has rightly believed the said circumstance also. There is nothing on record to show that the said kerchief belongs to either of the accused. Though it is the case of the prosecution that the kerchief was recovered from accused No. 2, the same is falsified by the evidence of the Officer of Forensic Science Laboratory PW19. PW19 has deposed that he was taken to the spot to collect the blood stains and he had found the kerchief beneath the dead body of the deceased. There is nothing on record to show that the said kerchief was seized by the police during investigation. Thus it is clear that the seizure of kerchief or recovery of the kerchief is a make believe affair. 14. The last circumstance is that the accused called the deceased over phone from the booth telephone of PWs.26 and 27 on that day. The evidence of PWs.26 and 27 does not help the case of the prosecution, inasmuch as both of them have not stated that the accused had called from their coin booth on that day. 15. In addition to the same, it is relevant to note that SIM Card of the deceased was seized under a separate panchanama Ex.P5. SIM Card is marked at M.O.5. According to the case of the prosecution and according to the evidence of PW. 16 the employer of the deceased the BSNL SIM Card was provided to the deceased. Per contra, the SIM Card seized under Ex.P5 is not belonging to BSNL but belongs to Hutchison Essar Company as is clear from the evidence of PW15 (the Officer of BSNL). 16. Based on the aforementioned shaky material on record, the Trial Court is justified in acquitting the accused. Even on re-appreciation of the material on record, we do not find any ground to interfere with the judgment and order inasmuch as the accused are entitled to get the benefit of doubt. Accordingly, the appeal fails and stands dismissed.