JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of conviction dated 21-7-2011 passed by the Fast Track Court, Mysore in SC No. 279 of 2009, is called in question in this appeal by convicted accused 1. Accused 1 (appellant herein) is convicted and sentenced for the offences punishable under Sections 302 and 201 of Indian Penal Code, 1860. Case of the prosecution in brief is that accused 1 and 2 and the deceased Channaiah were classmates and friends; they had failed in their 2nd year PUC Examinations; supplementary examination of the accused and the deceased was scheduled to commence on 14-3-2009; deceased Channaiah used to go to the house of accused 1 frequently for the purpose of combined studies; he used to go the house of accused 1 at 7.30 p.m. every day and study in his house overnight; he used to sleep in the house of accused 1 and he used to come back to his house in the morning of next day; on 13-3-2009 at 7.30 p.m., the deceased left his house to go to the house of accused 1 in usual manner; however, he did not come back to his house on the next morning; in that regard, P.W. 2, the father of the deceased gave information to Bilikeri Police Station as per Ex. P. 2 informing the police that his son (deceased) and the accused were friends; his son (deceased) used to stay in the house of accused 1 during nights; on 13-3-2009 also the deceased left his house at 7.30 p.m. telling his parents that he would be going to the house of accused 1 for studying; however, on the next day i.e., on 14-3-2009 his dead body was found near electric pole (to which extension wires were drawn), situated in the land of Smt. Jayamma, bearing No. 222 of Dombara Colony near Maradur; based on such information UDR No. 299 of 2008-2009 (5 of 2009) came to be registered in Bilikeri Police Station, Hunasur Taluk; the body was subjected to autopsy on 14-3-2009; however, the Investigating Officer took the post-mortem report only on 11-5-2009; on the very day, another information came to be lodged by P.W. 1 (mother of the deceased) as per Ex. P. 1, wherein she alleges the crime of murder against six persons including the appellant herein; the said information lodged by P.W. 1 as per Ex. P. 1, wherein she alleges the crime of murder against six persons including the appellant herein; the said information lodged by P.W. 1 as per Ex. P. 1 came to be registered in Crime No. 152 of 2009 in Bilikeri Police Station for the offence punishable under Section 302 read with Section 34 of IPC; the Investigating Officer-P.W. 20 completed the investigation and laid the charge-sheet against accused 1 and 2; however, the charge-sheet is not filed against four others whose names were mentioned in Ex. P. 1. 2. In order to prove its case, the prosecution in all has examined 20 witnesses and got marked 27 Exhibits and 6 material objects. On behalf of the defence, no witness is examined and no document is marked. On evaluation of the material on record, the Trial Court has convicted accused 1 (appellant herein) for the offences punishable under Sections 302 and 201 of IPC and acquitted accused 2 for the offence with which he was charged. 3. Sri Santhosh G. Bhat, learned Advocate appearing on behalf of accused 1-appellant herein taking us through the material on record and the judgment of the Court below vehemently submits that the Trial Court is not justified in convicting the appellant (accused 1) merely on assumptions and conjunctures; the evidence of the prosecution is unreliable; none of the circumstances relied upon by the prosecution is proved beyond reasonable doubt; the statements of the important witnesses though are recorded and though such witnesses are stated in the charge-sheet, are not examined before the Court; the statements of the witnesses who are examined before the Court are recorded after about six months of the date of the incident; though all the important witnesses were very much present before the Police at the time of drawing panchanama, the police did not venture to record the statements of such witnesses; belated recording of the statements of the important witnesses would definitely give rise to suspicious; such inordinate delay by the police in recording the statements during the course of investigation has remained unexplained. He further submits that the reasons assigned and the conclusion reached by the Trial Court are improper and incorrect. Learned SPP appearing for the State argued in support of the judgment of the Court below. 4. P.Ws. 1 and 2 are the parents of the deceased. He further submits that the reasons assigned and the conclusion reached by the Trial Court are improper and incorrect. Learned SPP appearing for the State argued in support of the judgment of the Court below. 4. P.Ws. 1 and 2 are the parents of the deceased. P.W. 1 (mother of the deceased) lodged the information as per Ex. P. 1 on 11-5-2009 though the incident has taken place on 13-3-2009. She has deposed about the circumstance relating to motive and the last seen circumstance. P.W. 2 (father of the deceased) has lodged the information as per Ex. P. 2 on 14-3-2009, i.e., immediately after seeing the dead body of the deceased in the land of Smt. Jayamma, based on which UDR No. 5 of 2009 came to be registered. P.Ws. 3, 4, 5, 6 and 8 have deposed about the inquest panchanama at Ex. P. 2. P.W. 5 is the witness for seizure mahazar at Ex. P. 4 under which iron rod (M.O. 6) is seized based on the statement of accused 1 and 2. The recovery of M.O. 6 is made jointly at the instance of accused 1 and 2. P.W. 7 is the cousin of the deceased. She has deposed about the love affair between the deceased and the sister of accused 1 (P.W. 16). P.W. 9 has deposed that he heard certain noise from the side of bus stand during night of 13-3-2009. P.W. 10 is the photographer who captured the photographs of the dead body. P.Ws. 11, 12 and 13 are the officials of Village Panchayat who have spoken to about revenue extracts and demand register relating to the scene of offence, etc. P.W. 14 is the doctor who conducted the post-mortem examination. Ex. P. 19 is the post-mortem report and Ex. P. 20 is the opinion of the doctor relating to the weapon used for commission of offence. P.W. 21 is the Assistant Sub-Inspector of Police attached to Bilikeri Police Station, who registered the crime and sent the FIR to the jurisdictional Magistrate as per Ex. P. 21. P.W. 16 is the sister of accused 1. She has turned hostile to the case of the prosecution. P.Ws. 17 and 18 are the Police Constables who participated during the investigation at different levels. P.Ws. 19 and 20 are the Investigating Officers. P.W. 20 laid the charge-sheet. 5. There are no eye-witnesses to the incident in question. P. 21. P.W. 16 is the sister of accused 1. She has turned hostile to the case of the prosecution. P.Ws. 17 and 18 are the Police Constables who participated during the investigation at different levels. P.Ws. 19 and 20 are the Investigating Officers. P.W. 20 laid the charge-sheet. 5. There are no eye-witnesses to the incident in question. Case of the prosecution fully rests on the circumstantial evidence. The circumstances relied upon by the prosecution are as under: (i) Motive for commission of offence. (ii) The deceased and the accused were last seen together immediately prior to the incident. (iii) Hearing of certain sound near the bus stand. 6. Re. Motive.--Case of the prosecution is that accused 1 and 2 and deceased were friends and classmates; the deceased used to go to the house of accused 1 every night for studying; he was in love with the sister of accused 1 which was the not relishable by accused 1; hence, accused 1 hatched the plan in collusion with accused 2 to do away with the life of the deceased. In order to prove the aspect of motive, prosecution has relied upon the evidence of P.Ws. 1, 2 and 7. Among them, P.Ws. 1 and 2 (parents of the deceased) have specifically deposed that they did not know about the love affair between the deceased and the sister of accused 1 (P.W. 16). They have also admitted that they came to know about such love affair through some persons, only after the incident in question. In the cross-examination they deposed that the deceased was sincere and sensitive boy and he was intelligent than the accused. They also admitted that the deceased and accused 1 were close friends and they used to study together. Thus, practically, the evidence of P.Ws. 1 and 2 clearly reveal that they did not suspect the hands of accused at any point of time and they did not know the love affair of the deceased and P.W. 16. It is also the version of P.Ws. 1 and 2 that accused 1 was a good friend of the deceased. However, the evidence of P.W. 7 would prima facie reveal that the deceased was loving P.W. 16 (sister of accused 1) and that he had requested P.W. 7 not to disclose the said facts to anybody. It is also the version of P.Ws. 1 and 2 that accused 1 was a good friend of the deceased. However, the evidence of P.W. 7 would prima facie reveal that the deceased was loving P.W. 16 (sister of accused 1) and that he had requested P.W. 7 not to disclose the said facts to anybody. It is further version of P.W. 7 that accused 1 had threatened her with dire consequences if she discloses about his love affair to anybody. In the cross-examination, P.W. 7 has admitted that she was in love with a boy by name Harish. Suggestion is made by the defence that P.W. 7 also loving Prasanna and they were talking amicably and loving. However, such suggestion is denied by her. It is admitted by P.W. 7 that she had consumed poison since her love affair was disclosed to the villagers and that she was admitted to the hospital. It is further admitted by P.W. 7 that she had consumed poison two months prior to the incident in question. It is further deposed by P.W. 7 that it is but natural in the villages that the students preparing for examinations to have combined study in one of the houses; the accused never approached her after the incident in question. She has never stated before the police that there was love affair between the deceased and sister of accused 1 (P.W. 16). Only on being told by Marilakkaiah (not examined) and Doddalakkaiah (P.W. 3), she came to know of the aforementioned facts. These admissions of P.W. 7 would make it clear that she has not come to the Court with free mind and her version before the Court is not true. It is also depicted that she has deposed before the Court as told by Marilakkaiah and P.W. 3. She is a tutored witness. Added to it, her statement is recorded after about five months after the incident in question. The discussion as made supra would lead us to conclude that the prosecution has not proved the circumstance of motive against the accused. 7. Re: last seen circumstance: The prosecution has relied upon the evidence of P.Ws. 1, 2 and 3. Among them, P.Ws. Added to it, her statement is recorded after about five months after the incident in question. The discussion as made supra would lead us to conclude that the prosecution has not proved the circumstance of motive against the accused. 7. Re: last seen circumstance: The prosecution has relied upon the evidence of P.Ws. 1, 2 and 3. Among them, P.Ws. 1 and 2 are the parents of the deceased and that they have deposed that they saw the deceased, at about 7.30 p.m. on 13-3-2009, going to the house of accused 1 for studying in usual manner. They have not seen the accused and the deceased going together from the house of the deceased. However, they saw only the deceased going away from his house after telling them that he would be going to the house of accused 1 for studying. However, their evidence does not support the circumstance of last seen, but it clarifies to an extent that the deceased left his house at 7.30 p.m. on 13-3-2009 saying that he would be going to the house of accused 1. Thus, they have seen only the deceased while leaving his house and not with the accused. It is also admitted by P.Ws. 1 and 2 that the deceased left his house in usual manner as he used to leave at 7.30 p.m. after having his dinner to go to the house of accused 1. From their evidence, it is clear that the deceased left his house in usual manner saying that he would be going to the house of accused 1 for studying. However, P.W. 3 in his examination-in-chief deposed that he has seen accused 1 and 2 at about 11.00 p.m. on 13-3-2009 coming from the side of bus stand. On being asked by P.W. 3, accused 1 and 2 allegedly told him that they wanted to go to Hunsur and since they did not get bus they were returning back to their house. Except the aforementioned version of P.W. 3, nothing more is found on record. What is gathered from the evidence of P.W. 3 is that only accused 1 and 2 were seen at 11.00 p.m. that too near the Bus Stand. However, there is no evidence to show that the accused and the deceased were seen together either by P.W. 3 or anybody. What is gathered from the evidence of P.W. 3 is that only accused 1 and 2 were seen at 11.00 p.m. that too near the Bus Stand. However, there is no evidence to show that the accused and the deceased were seen together either by P.W. 3 or anybody. However, P.W. 3 has strangely deposed for the first time before the Court that he came to know from the third parties (not mentioning the names) that such third parties had seen the deceased and accused going together near a Pump House. However, he has not disclosed the names of such third parties who had disclosed such information to him. According to P.Ws. 1 and 2, they also came to know about the deceased and accused going together with Nandish, Chandrappa, Ashok, and Marilakkaiah, etc. However none of those persons are examined before the Court. In view of the above, we can safely conclude that the prosecution has not proved the last seen circumstance also. 8. Re. Hearing of certain sound near the Bus Stand.--It is further case of the prosecution that P.W. 3 heard certain sounds near Dombara Colony during night of 13-3-2009. However in the evidence of P.W. 9, he has merely deposed that while he was coming back from the Bus Stand he heard certain sounds. But, he has not identified voice of any person. Virtually, P.W. 9 has not deposed that he heard any cries or sounds of either the deceased or the accused near the Pump House or electric pole, etc. 9. In addition to the same, it is curious to note that the prosecution has tried to shift the scene of offence itself. As is clear from Exs. P. 1 and P. 2, lodged by P.Ws. 1 and 2 respectively, the dead body was lying near electric pole situated in the land bearing Sy. No. 222 owned by Smt. Jayamma (mother of P.W. 7). The scene of offence panchanama was not drawn at the time of drawing the inquest panchanama or immediately after registering Crime. It was serious lapse on the part of the prosecution. However, the prosecution has drawn the scene of offence panchanama as per Ex. P. 4 only on 7-8-2009, i.e., after the lapse of five months of the date of the incident. It was serious lapse on the part of the prosecution. However, the prosecution has drawn the scene of offence panchanama as per Ex. P. 4 only on 7-8-2009, i.e., after the lapse of five months of the date of the incident. In the scene of offence panchanama, the place wherein the dead body was lying is shifted near Pump House, situated behind the house of accused 1. Nothing is mentioned in Ex. P. 4 about electric pole. The house of accused 1/land of accused 1 is totally different from the land of Smt. Jayamma wherein the dead body was lying. Admittedly, the dead body was lying near the electric pole. As could be seen from the trend of cross-examination, the defence wants to contend that it is the case of suicide inasmuch as deceased committed suicide as he had fear about PUC Examination which was scheduled to be held on the next day, i.e., on 14-3-2009. Thus, according to the defence, the accused fell from the top of electric pole and committed suicide. In order to avoid such probable defence by the accused, the scene of offence itself sought to be shifted unfairly. Thus, we find that the prosecution has not come out with the true case before the Court. 10. We also find that though the incident has taken place on 13-3-2009 and though the investigation was continuously going on from the date of the incident, the Investigating Officer has not recorded the statements of the important witnesses. P.Ws. 3 and 9 who were supposed to depose about the last seen circumstance are examined by the Investigating Officer after about five months of the incident. Even the statement of P.W. 7 who was supposed to depose about the aspect of motive is also recorded by the Investigating Officer after about five months of the incident. Such delay in recording of the statement of important witnesses is not explained by the prosecution in whatever manner. It is also curious to note that the statements of Chandrappa, Nandish, Ashok, Marilakkaiah, who had allegedly seen the accused and the deceased together near the place of incident, though are cited in the charge-sheet are not examined before the Court for the reasons best known to the prosecution. It is also curious to note that the statements of Chandrappa, Nandish, Ashok, Marilakkaiah, who had allegedly seen the accused and the deceased together near the place of incident, though are cited in the charge-sheet are not examined before the Court for the reasons best known to the prosecution. As could be seen from the order sheet maintained by the Trial Court, the aforesaid persons were very much available, but however they were left out being examined. In the matter on hand, there is no allegation about the ascendance of the accused. The accused were arrested from their houses on 7-8-2009, i.e., after about five months of the incident in question. Ex. P. 1 lodged by the mother of the deceased (P.W. 1) specifically disclosed names of accused 1 and 2 as the perpetrators of the crime along with others. However they were neither apprehended nor were interrogated. As aforementioned, they have not absconded also. All the aforementioned facts and circumstances of would lead us to conclude that the prosecution has not proved its case beyond reasonable doubt. Merely on suspicion, accused cannot be convicted. None of the circumstances are proved by the prosecution beyond reasonable doubt. Hence, the impugned order of conviction passed against the appellant herein needs to be set aside. Accordingly, the following order is made: (i) The judgment and order of conviction dated 21-7-2011 passed by the Fast Track Court-II, Mysore in SC No. 279 of 2009, stands set aside. Accused 1-H.S. Pradeep (appellant herein) is acquitted of all the charges leveled against him. (ii) It is made clear that the judgment of order of acquittal dated 21-7-2011 passed by the Trial Court acquitting accused 2 remained undisturbed, inasmuch as the State has not filed any appeal questioning the order of acquittal against accused 2. (iii) The bail bond of accused 1 (appellant herein) stands cancelled. Appeal is allowed accordingly.