JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of conviction dated 13th April 2012 passed by Fast Track Court-XII, Bangalore City in S.C. No. 676/2010 is called in question in this appeal by convicted accused No. 1. It is relevant to note that convicted accused No. 2 has not filed appeal. He is undergoing sentence imposed on him. Both the accused were tried and convicted for the offences punishable under Sections 324and 302 r/w 34 IPC by the trial court. 2. The case of the prosecution in brief is that PW-4 is the leader of a Garments Employees Association and he was acquainted with many garment employees including the deceased; PW-8 Manjunath had got money transaction with accused No. 1; accused No. 1 had deposited Rs. 5,000/- in chit fund run by PW-8; accused No. 1 wanted his money back since the money was required for school fees of his son; however PW-8 had not returned the money to accused No. 1; in that regard, there was dispute between accused No. 1 and PW-8. On 7.2.2010 at about 9.00 p.m., when deceased Ravi was sitting in Maruthi bar and restaurant alongwith PW-8 and 9 consuming liquor situated on the main road of Laggare, accused Nos. 1 and 2 came there and quarreled with PW-8 and the deceased; PW-8 was assaulted by accused No. 2 with a stone, consequent upon which, PW-8 sustained head injury; thereafter PWs-8 and 9 being frightened fled away leaving deceased alone who was attacked by accused Nos. 1 and 2 after chasing him from Laggere main road to 14th cross; accused No. 2 felled Ravi (deceased) while Ravi was crossing the drain; accused No. 2 put seven stones one after other over on the face of deceased leading to fatal injuries; both the accused fled away from the spot. The jurisdictional police after seeing the dead-body during night intervening between 7.2.2010 and 8.2.2010 called the complainant/PW-4 -leader of the employees association and informed about the dead-body of the deceased; PW-4-complainant went to the scene and saw the dead-body and lodged the first information as per Ex-P3 before the PSI of Rajagopalanagar police station, Bangalore at about 2.45 a.m. on 8.2.2010 against unknown persons; the said first information came to be registered against unknown persons in Cr. No. 50/2010 by the said police station by the Sub-Inspector of Police-PW-13. No. 50/2010 by the said police station by the Sub-Inspector of Police-PW-13. The Inspector of Police(PW-14) completed the investigation and laid the charge-sheet. 3. In order to prove its case, the prosecution in all examined 15 witnesses and got marked 19 exhibits and 14 material objects. On behalf of the defence, one exhibit is got marked. As aforementioned, the trial court convicted both the accused for the offences punishable under Section 302 IPC. 4. Sri. M.R. Nanjunda Gowda, learned counsel for the defence taking us through the material on record submits that the court below is not justified in convicting accused No. 1 merely on conjectures and surmises and there is no legal material worth believing collected on record on behalf of the prosecution; the two important witnesses PWs-8 and 9 have virtually deposed only against accused No. 2; motive for commission of the offence is not proved by the prosecution; the material on record will not sufficiently conclude that accused No. 1 facilitated the commission of murder of the deceased by accused No. 2. Sri. Keshava Murthy, learned Addl. SPP argued in support of the judgment of the court below. 5. PW-1 is the witness for scene of offence panchanama Ex-P1 under which M.Os. 1-9 were seized from the spot. PW-2 is the wife of the deceased, PW-5 is brother of the deceased, PW-6 is the sister of the deceased; PW-7 is another brother of the deceased. All these witnesses have seen the dead-body subsequent to the incident. Their versions may not be of much use to the case of the prosecution in this mater. Their statements are recorded during the course of inquest panchanama Ex-P13. PW-3 was supposed to depose about the last seen circumstance. He has turned hostile. He is cashier of Maruthi bar where deceased and accused consumed alcohol and wherein preliminary incident took place. PW-4 is the first informant. He lodged the complaint as per Ex-P3 against unknown persons after seeing the deadbody. He got the message from the police station and went to the police station. He is also witness for scene of offence panchanama-Ex-P1. PWs-8 and 9 are the important witnesses having seen the first portion of the incident i.e., the quarrel that took place between accused and the deceased. Among them, PW-8 has confined his evidence only against accused No. 2 and not against accused No. 1. He is also witness for scene of offence panchanama-Ex-P1. PWs-8 and 9 are the important witnesses having seen the first portion of the incident i.e., the quarrel that took place between accused and the deceased. Among them, PW-8 has confined his evidence only against accused No. 2 and not against accused No. 1. He completely exonerates accused No. 1, whereas PW-9 though has turned hostile, has deposed in the cross-examination by Public Prosecutor about one or two sequences against accused No. 1 also. PW-10 is the police constable. He carried FIR to the jurisdictional Magistrate. PW-11 is the Doctor, who treated injured PW-8 and issued wound certificate as per Ex-P8. The Doctor has opined that the two injuries sustained by PW-8 are simple in nature. The history recorded by the Doctor while examining PW-8 is that he sustained injuries in the assault by some known persons. PW-12 is the Doctor, who conducted post-mortem examination over the dead-body. Ex-P9 is the postmortem report. PW-13 is the PSI, who registered Crime No. 50/2010 based on the complaint lodged by PW-4. PW-14 is the Investigation Officer. PW-15 is the officer of Forensic Science Laboratory. 6. The entire case of the prosecution revolves around PWs-8 and 9, inasmuch as, they are the only two witnesses who have deposed before the Court in favour of the prosecution to certain extent. 7. As aforementioned, accused No. 2 has not filed appeal. This appeal is filed by accused No. 1. In the matter on hand, PW-8 has also sustained injury on his head. 8. PW-8 has deposed that he was working in a garment factory. Deceased was also working in the very garment factory as supervisor. Accused No. 1-Basavaraj who was working in a different garment factory had left the job and was doing the laundry work. According to PW-8, there was no financial transaction between himself and accused No. 1. On the date of the incident i.e., on 7.2.2010 at about 9.00 p.m., while PW-8 and 9 and deceased were returning to their respective houses after work, accused No. 1 telephoned to PW-8 and told him that he is in school function of his son; at that point of time, PW-8 asked PW-1 to treat them. In context, accused No. 1 asked PWs-8 and 9 and deceased to come to Maruthi bar situated at Laggere. Accordingly, PW-8, PW-9 and deceased went to Maruthi bar. In context, accused No. 1 asked PWs-8 and 9 and deceased to come to Maruthi bar situated at Laggere. Accordingly, PW-8, PW-9 and deceased went to Maruthi bar. However, accused No. 1 was not found at Maruthi bar; once again, PW-8 called accused No. 1 to know about his whereabouts. Thereafter, accused No. 1 told PW-8 that himself, PW-9 and deceased may come to the school, inasmuch as, accused No. 1 was in the school function during the relevant point of time. Accordingly, PW-8 went alongwith PW-9 and deceased to the school, while accused No. 1 was in the school witnessing the school function. Thereafter, all of them went to Maruthi bar and consumed liquor. Accused No. 2 came to the spot and started staring at deceased Ravi; on being questioned by Ravi, accused No. 2 started quarrelling with Ravi; PW-8 intervened in the quarrel, accused No. 2 assaulted PW-8 with the stone and started once again quarrelling with the deceased. Accused No. 2 dragged deceased out of the bar and took him away. When PW-8 questioned about the conduct of accused No. 2, he was threatened with dire consequences by accused No. 2. PW-8 was treated as hostile witness by the prosecutor and he was cross-examined by him. Even in the cross-examination, while PW-8 reiterated that it was accused No. 2 who assaulted him as well as deceased,. he completely exonerated accused No. 1 from the crime. According to PW-8, accused No. 1 has not at all committed any offence. 9. Another important witness is PW-9. He has also deposed about the first portion of the prosecution story that PW-8, PW-9 and deceased and accused No. 1 were consuming liquor at Maruthi bar and Restaurant; accused No. 2 came to the bar and started staring at the deceased; after quarrelling with the deceased, accused No. 2 dragged the deceased outside the bar and took him away, while dragging the deceased, accused No. 2 forcibly took out the jerkin worn by PW-9, on the next day, he heard the news about the death of the deceased. He was treated as hostile witness. In the cross examination by the Public Prosecutor, PW-9 has admitted that accused No. 1 assaulted PWs-8 and 9 with hands and accused No. 2 assaulted PW-8 with stone, consequent upon which, PW-8 sustained bleeding injuries on his head. He was treated as hostile witness. In the cross examination by the Public Prosecutor, PW-9 has admitted that accused No. 1 assaulted PWs-8 and 9 with hands and accused No. 2 assaulted PW-8 with stone, consequent upon which, PW-8 sustained bleeding injuries on his head. He further admits that both the accused chased the deceased upto 14th cross. He further deposed that he has not seen the subsequent incident. 10. From the aforementioned evidence of PW-9, it is clear that he has deposed mainly against accused No. 2 and to a little extent against accused No. 1 also. According to PW-9, accused No. 1 assaulted PW-8 and the deceased with hands and chased the deceased. This version of PW-9 is contradicted by PW-8. He has deposed that it was accused No. 2 who assaulted the deceased and he alone chased the deceased and dragged him away. The evidence of PWs-8 and 9 is contradictory to each other insofar as, it relates to complicity of accused No. 1 is concerned. However, the evidence of these witnesses is consistent with regard to complicity of accused No. 2. 11. Except the aforementioned evidence of PWs-8 and 9, all other material may not be helpful to the case of the prosecution to bring home the guilt against the accused. Though motive is alleged as against accused No. 1, such motive is not proved by the prosecution. Even the relatives of the deceased have not deposed about the motive. There is no recovery of any incriminating material also at the instance of the accused. The bloodstained stones were lying on the spot and the same are seized by the police during the course of investigation. As aforementioned, the evidence relating to the overt-acts of accused No. 1 is shaky and doubtful. On reconsideration of the entire material on record, we conclude that the prosecution has not proved its case beyond reasonable doubt as against accused No. 1. We have already clarified that, the evidence of PWs-8 and 9 insofar as complicity of accused No. 1 is concerned is contradictory to each other. So also, there is no evidence on record to show that accused No. 1 facilitated the commission of murder by accused No. 2, inasmuch as, there is nothing on record to show that accused No. 1 voluntarily invited the deceased and PW-8 and 9 for consuming liquor. So also, there is no evidence on record to show that accused No. 1 facilitated the commission of murder by accused No. 2, inasmuch as, there is nothing on record to show that accused No. 1 voluntarily invited the deceased and PW-8 and 9 for consuming liquor. On the other hand, it was PW-8 who wanted a treat from accused No. 1 and consequently, accused No. 1 who was in the school attending the school function of his son invited PWs-8 and 9 and the deceased to the Maruthi bar for consuming liquor wherein incident has taken place. 12. Having regard to the aforementioned material, we are of the considered opinion that the trial court is not justified in convicting accused No. 1 for the offence punishable under section 302 of IPC. Accordingly, the following order is made:-- "The appeal is allowed. Accused No. 1- Basavaraj is acquitted of all the charges levelled against him. Accused No. 1 shall be released forthwith, if not required in any other case." The operative portion of this order shall be communicated to the prison authorities.