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2016 DIGILAW 467 (KAR)

Prashant @ Papya v. State of Karnataka

2016-06-20

ANAND BYRAREDDY, L.NARAYANA SWAMY

body2016
JUDGMENT : Heard the learned Counsel for the appellants and the learned Additional State Public Prosecutor. 2. This is an appeal which had been decided by this court wherein the accused had been acquitted. However, in appeal before the Apex Court, the Apex Court has opined that this court has dealt with the matter without taking into account the facts in question and that this court has not analyzed the evidence as well as the facts and that there was evidence of recovery and this has not been taken into consideration and that this court has ignored all the facts which some pressure to render a judgment which would be to the satisfaction of the Apex court. However, we proceed to deal with this appeal without out best effort. 3. The facts of the case as sought to be urged by the prosecution was that one Shivlingappa of Bidar was the complainant. He had lodged an oral complaint before the New Town Police Station, Bidar, on 05.07.1996 at about 15.45 hours. It was his complaint that he had two sons and three daughters. Of them, Prashanth Kange was the eldest. The said Prashanth had not completed his B.A. degree as he had failed in the final year. He had set up a business of photocopying and was running a photocopying unit in the name of Jayakumar and that the complainant’s other sons were assisting him in the said business. He had also purchased a jeep after obtaining a loan from a bank and was running the same as a taxi. It is further stated that on 03.07.1996 at about 10:30 p.m., after having closed his shop for the day and after having had dinner, he had left home at about 11.00 p.m. It were dealt with by the trial court and no cogent reasons are assigned in deciding the appeal. In view of such caustic observations by the Supreme Court, we are indeed placed under transpires that the jeep belonging to him had been sent to Hyderabad and they were awaiting the return of the jeep. It was stated that Prashanth went towards one Chature complex and never returned. The jeep it transpires had returned by 11.30 p.m. driven by Shivaji the driver, but the son of the complainant did not return and it was presumed that he might have gone elsewhere. It was stated that Prashanth went towards one Chature complex and never returned. The jeep it transpires had returned by 11.30 p.m. driven by Shivaji the driver, but the son of the complainant did not return and it was presumed that he might have gone elsewhere. It was found that even the next morning, Prashanth had not returned home. On 04.07.1996, the complainant had enquired with friends of Prashanth at Bidar, but they were clueless as to his whereabouts. In the evening, the complainant had contemplated reporting the matter to the police, but however did not do so. On 05.07.1996, the complainant had made further enquiries at Gulbarga, Aurangabad, and at all those places where his son would normally travel, but he was not traceable. It is thereafter at 3:00 p.m. he heard that there was a dead body found in the well at the Balbhavan premises in Bidar and that it had been fished out of the well. The complainant out of curiosity, had gone to that place and found to his shock that it was indeed the dead body of his son and that it had been placed in a gunny bag and then thrown into the well. It was noticed that there were seven stab injuries on the abdomen and there was also a cut injury on the right side of the neck and left wrist. It was the complainant’s suspicion that his son had been killed some time during the night hours of 03/04.07.1996 and that the body had been dumped in the well after having committed the murder. It is later, in retrospect, found that on 03.07.1996 at about 11:00 a.m. the complainant’s wife remembered to have seen her son Prashanth talking with one Rohan and thereafter she had seen Rohan going towards his house and Prashanth going towards Elegant Tailor shop after having crossed the road. It is on this information that the police had on interrogation of Rohan, recounted the sequence of events leading to the arrest of the accused and the prosecution developing a theory of the motive behind the murder of Prashanth. It is on this information that the police had on interrogation of Rohan, recounted the sequence of events leading to the arrest of the accused and the prosecution developing a theory of the motive behind the murder of Prashanth. It was the case of the prosecution that accused No.1 had a sister by name Seema and she had fallen in love with one Muralidhar, the head of the institution where she was employed, and since he was a married man with children, there was opposition to the second marriage and knowing this, the said Muralidhar is said to have eloped with Seema and they are said to have got married at the office of the Registrar of Marriages and thereafter had returned. The family of Seema including accused No.1, were very agitated in view of such a marriage and it transpires that accused No.1 along with the deceased, Rohan, Kalyanrao and Srinivas, had visited the house of Muralidhar where Seema was residing with him. It is further recounted that Kalyanrao and the deceased had gone into the house of Muralidhar while the others were waiting in the car in which they had come and after about 20 minutes, the deceased and Kalyanrao are said to have come out of the house and informed Accused No.1 that Muralidhar was not to be found in the house. Accused No.1 is said to have suspected that the deceased had been bribed by Muralidhar and Muralidhar had been allowed to escape from the backdoor in order to avoid any confrontation and therefore was peeved with him and a quarrel is said to have broken out between accused No.1 and the deceased. It is in this background it is alleged that accused No.1 along with the assistance of accused Nos.2 and 3, had plotted the murder of the deceased and it is stated that on the evidence of PWs.11 and 10, it is claimed that Accused Nos.1 to 3 were seen along with the deceased at about 11:00 p.m. and that they were going into the premises of Balbhavan and later, PW.10 is said to have seen the accused come out of the premises of Balbhavan, while the deceased was not to be seen along with them. Similarly, PW.11 Rohan is said to have noticed the deceased along with accused No.1 at the same time going towards Elegant Tailor shop and though he has not spoken about the presence of Accused Nos.2 and 3, the prosecution had thought it fit to project the theory that since there was a motive and since the accused and the deceased were last seen together, it was but presumptive and without any manner of doubt that it was the accused who had committed the murder of the deceased and that he was placed in a gunny bag and dumped in the well in the compound of Balbhavan. It is this which is sought to be established by examining by several witnesses. 4. The court below on the charges having been framed and the accused having pleaded not guilty and having claimed to be tried and on the evidence of the prosecution having been tendered, had framed the following points for consideration: “1. Whether the prosecution proves that, on 3.7.96 at 11.00 p.m., at Bhalbhavan garden, KHB Colony, Bidar in furtherance of common intention, being non members of SC/ST community, the accused Nos.2 and 3 held Prashant Kange, a member of SC community and the accused No.1 hit him with knife seven times on the stomach and on the other parts of the body and caused bleeding injuries and as a result of which said Prashant Kange died and the accused No.1 to 3 did the said act knowing fully well that their acts are going to cause the death of said Prashant Kange and thereby committed murder of said Prashant Kange punishable under Sections 302 read with Section 34 of the Indian Penal Code, 1860 read with Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989 beyond all reasonable doubts? 2. Whether the prosecution further proves that, in committing the offence of murder as stated in charge No.1, A1 to A3 have destroyed their bloodstained clothes and thereby caused disappearance of the evidence of murder by the accused and thereby committed an offence punishable under Section 201 read with Section 34 IPC beyond all reasonable doubts? 3. 2. Whether the prosecution further proves that, in committing the offence of murder as stated in charge No.1, A1 to A3 have destroyed their bloodstained clothes and thereby caused disappearance of the evidence of murder by the accused and thereby committed an offence punishable under Section 201 read with Section 34 IPC beyond all reasonable doubts? 3. What order?” The court below has answered point No.1 partly in the affirmative and point No.2 in the affirmative and has convicted accused Nos.1 to 3 to life imprisonment and has also imposed a fine of Rs.5,000/-each for the offence punishable under Section 302 read with Section 34 Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for brevity), apart from a further punishment of three years for the offence punishable under Section 201 read with Section 34 of IPC. It is that judgment which is under challenge in the present appeal. 5. The learned Counsel for the appellants Shri B.C.Muddappa, leading the arguments on behalf of the accused, would submit that in order to have brought home the charges to have enabled the court to convict the accused and to impose the punishment, it was necessary for the prosecution to have demonstrated that there was indeed a motive and the further fact that the accused were indeed last seen together and there was other incriminating evidence to demonstrate that the accused had indeed committed the murder of the deceased and that there were recoveries made at the instance of the accused and that it was established beyond reasonable doubt that the accused had committed the murder of the deceased. In this regard, in so far as the motive is concerned, it is pointed out that the case made out by the prosecution is vague and disjointed. The circumstance that the sister of accused No.1 had eloped along with Muralidhar and had returned, was an admitted circumstance and whether there was bad blood between Muralidhar and the family of accused No.1 is not forthcoming from the evidence on record, except the one incident where the accused along with deceased and others had visited the house of Muralidhar. There is no preceding incident where Muralidhar had been confronted by the family of accused No.1 or by accused No.1 himself either before the alleged murder or after the alleged murder. There is no preceding incident where Muralidhar had been confronted by the family of accused No.1 or by accused No.1 himself either before the alleged murder or after the alleged murder. He would submit that this was a crucial and significant circumstance which ought to have been established in claiming that there was a motive for the commission of the murder of the deceased. For, if there was venom which Accused No.1 allegedly had carried, on his sister having eloped with Muralidhar, such hatred or anger would have been directed more towards Muralidhar than the accused and this is not established by reference to any preceding or succeeding events. There is no such evidence forthcoming and the mere fact that the Accused No.1 suspected the deceased of having allowed Muralidhar to escape, by itself being a cause for the commission of murder, is difficult to accept. Even the very event of the accused and others along with deceased having visited the house of Muralidhar is not established with any certainty. For, it is pointed out that according to PW.11, the deceased and Kalyanrao had together gone into the house of Muralidhar while the others including Rohan had stayed behind in the car in which they had gone there. However, Kalyanrao who was a crucial witness to establish the said circumstance has resiled from his statement and has been treated as a hostile witness and when Kalyanrao who is said to have accompanied the deceased into the house of Muralidhar had not supported the case of the prosecution, it is difficult for the prosecution to explain as to what really transpired inside the house of Muralidhar and whether he was present and had run away or the deceased had enabled him to escape. This apart, there is no foundation laid to demonstrate that Accused No.1 carried such hatred against the deceased, much more than the hatred that he would have harboured against Muralidhar who was the cause for such anger in the first place. In the absence of any such incident, the entire theory of the prosecution falls to the ground. Further, the complainant has not in the first instance narrated that this indeed was the reason for the commission of murder of his son. It is claimed that the mother of the deceased had seen the deceased along with Rohan that night before he disappeared. Further, the complainant has not in the first instance narrated that this indeed was the reason for the commission of murder of his son. It is claimed that the mother of the deceased had seen the deceased along with Rohan that night before he disappeared. However, the mother of deceased was not examined as a witness and though the brother of the deceased who has claimed that the deceased had informed him about the incident of the deceased, accused and others having visited the house of Muralidhar, it is in retrospect that this information is gathered. More pertinently, the immediate lead on which the Investigating Officer had arrested the accused was purportedly on the information gathered from Rohan. This piece of information is not provided by the Investigating Officer when he has been examined as a witness. It was necessary for the prosecution to have established that the entire episode had been reconstructed on the basis of such information received from Rohan. This was a crucial factor which has gone without any explanation. Therefore, the idea of the motive with which the murder has been committed is not established with any certainty. More particularly, even if it could be said that accused No.1 had the motive to commit the murder of the deceased, there is no indication as to how Accused Nos.2 and 3 could have been motivated. There is no evidence of any financial consideration being provided to those accused in assisting accused No.1 of the commission of murder. In any event, there is no evidence in that regard. Further, the last seen theory sought to be established by the prosecution is on the basis of the actual witnesses who are examined, namely PWs.10 and 11. There is inconsistency in the evidence of PWs.10 and 11 apart from the very presence of PW.10 at point of time being unnatural. In any event, there is no evidence in that regard. Further, the last seen theory sought to be established by the prosecution is on the basis of the actual witnesses who are examined, namely PWs.10 and 11. There is inconsistency in the evidence of PWs.10 and 11 apart from the very presence of PW.10 at point of time being unnatural. It was the case of the said witness that after closing his tailoring shop at around 11 p.m., he had thought it fit to visit one of his relatives who was admitted in a Nursing home and therefore, when he was proceeding towards the Nursing Home, he had seen the accused along with the deceased walking into the Balbhavan premises and thereafter when he had found that his relative had left the Nursing Home, he was returning, after more than one hour, at which time, he had again seen the accused come out of the Balbhavan premises, but however, the deceased was not along with them. Secondly, though he had mentioned that all the three accused were present along with the deceased, this is not corroborated by Rohan who has spoken only about the presence of Accused No.1 and has not mentioned that Accused Nos.2 and 3 were present. Hence, the last seen theory projected by the prosecution is not readily acceptable. Apart from this, the witnesses have spoken about the presence of the accused in different places at the same time, which was again a physical impossibility. This is not sought to be reconciled by the prosecution by a proper explanation. Therefore, to proceed on the basis that the accused were definitely seen together along with the deceased at the particular point of time and place, is not readily established nor could be believed. There is also doubt as to whether the accused and the deceased could have gone into the Balbhavan premises when there is material evidence on record to disclose that the Balbhavan premises had a compound wall and a gate and it was also on record that the gate is normally closed and locked after nightfall and that it was not permissible for anybody to enter the premises unless they scaled the wall or scaled the gate. And the reason for them to be going into the premises is anybody’s guess. And the reason for them to be going into the premises is anybody’s guess. Such being the case, the last scene theory of the deceased having walked with the accused into the Balbhavan premises is difficult to accept. Further, in so far as the recoveries are concerned, it is alleged that firstly it is Rohan who had given the clue as to the background under which there was a motive for accused No.1 to have committed the murder of the deceased. This fact not having been stated by the Investigating Officer, it was at least necessary to demonstrate that on interrogation of the accused, that they had indicated the place where the dead body had been dumped, the place where they had thrown the weapon used, and the place where they had burnt their blood-stained clothes. This it is pointed out, is also not established in accordance with law. If statements were made during interrogation by the accused, it was necessary for the Investigating Officer or other witness to mark the relevant portion or statements, which statement had led to the discovery of articles recovered. There is no such endeavour on the part of the prosecution. In which event it cannot be said that the statements made by the accused had led to the recovery of material objects. Hence, it is contended to place reliance on the said evidence and to hold that the charges have been proved beyond reasonable doubt, is not only dangerous, but leads to a miscarriage of justice and therefore would seek that the judgment of the court below be set-aside and the accused acquitted. 6. On the other hand, the learned State Public Prosecutor seeking to justify the judgment of the court below, would point out that the evidence of the complainant coupled with the evidence of the brother of the deceased, was relevant in establishing the motive. 6. On the other hand, the learned State Public Prosecutor seeking to justify the judgment of the court below, would point out that the evidence of the complainant coupled with the evidence of the brother of the deceased, was relevant in establishing the motive. That six months prior to the incident, Seema, the sister of Accused No.1 having eloped with Muralidhar, had triggered the enmity and vengeance between Accused No.1 and Muralidhar and it was suspected by Accused No.1 that deceased had supported Muralidhar in eloping along with his sister and this had resulted in a festering enmity, which had manifested itself in the presence of Rohan and others when they had visited the house of Muralidhar, when again, the accused had displayed his support for Muralidhar in enabling him to escape from the house and it was such enmity that had grown bitter over a period of time, which ultimately led to the murder of the deceased. The fact that initially the complainant has not stated the motive or the manner in which his son might have been killed, is because the complainant was not aware of the manner in which it may have occurred. It is on information gathered and clues available that the entire episode had unfolded and therefore, to characterize the motive as sought to be urged by the prosecution as being a flimsy theory, is unfair. Especially, when the assailants had sought to hide their tracks with care and it is by chance that they have been seen together, leading to a presumption as to the manner in which the murder had been committed. It is on voluntary statements made by the accused the case of the prosecution has been fortified and the absence of eyewitnesses to the actual incident is besides the point, when there are other circumstances which have certainly been established beyond all reasonable doubt. The prosecution not having chosen to examine the several other witnesses who were crucial to its case, is also not significant, for the prosecution case would stand on the strength of witnesses who have already been examined. The prosecution not having chosen to examine the several other witnesses who were crucial to its case, is also not significant, for the prosecution case would stand on the strength of witnesses who have already been examined. As for instance, Rohan, a crucial witness who not only speaks about the accused last being seen together with the deceased, but also speaks about the previous instance where the accused along with the deceased had visited the house of Muralidhar and Accused No.1 being enraged with the deceased on account of the deceased supposably having enabled Muralidhar to escape, as he had feared that the accused and others had gone there to bring harm to him. He would further submit that the evidence of Rohan to the extent that he has emphasized in his evidence of having seen Accused No.1 along with the deceased on the fateful night, is a strong circumstance coupled with the recovery of the weapon with which the deceased was said to have been stabbed, which circumstance is again strongly supported by the Medical Practitioner who has conducted the post-mortem and has meticulously compared the injuries caused with the weapon that was used, to firmly establish that the injuries were caused with the very weapon that was recovered at the instance of Accused No.1. The further circumstance that the blood-stained clothes which were said to have been burnt by the accused subsequently not having been sent for forensic examination, would pale into insignificance when the recovery of the weapon used matches the injuries caused and the fact that it was recovered at the instance of Accused No.1. The further circumstance that the blood-stained clothes which were said to have been burnt by the accused subsequently not having been sent for forensic examination, would pale into insignificance when the recovery of the weapon used matches the injuries caused and the fact that it was recovered at the instance of Accused No.1. Therefore, the motive for the commission of the offence, the witnesses having seen the accused and the deceased together just prior to his death and the fact that there have been recoveries made, would clinch the case of the prosecution and the Trial Court having meticulously examined the evidence of the prosecution and having given cogent reasons for its findings, cannot be said to have been diminished or diluted by the arguments canvassed by the appellant before this Court and therefore, the Supreme Court having found error with this Court having acquitted the accused on the earlier occasion, would only point to the fact that the Trial Court has in a detailed judgment, addressed every aspect of the matter and it would be travesty of justice if the said judgment is over-ruled on the grounds now urged by the appellants. 7. Apart from the serious observations made by the Supreme Court, the further statements by the State Public Prosecutor, specifically in respect of the recovery, this Court is placed under even more pressure. However, we proceed to examine the material available on record dispassionately and with care. Insofar as the sequence of events are concerned, admittedly the entire scenario is sought to be re-constructed on the basis of material that is subsequently gathered and there is no clue in the complaint as to the reason for the unnatural death of the deceased. The first person to have seen the deceased leave the house was the mother of the deceased. She claimed to have noticed the deceased meeting Rohan on the street in front of their house. She has not been examined as a witness. The second person to have seen the accused is the brother of the deceased, PW-3, who simultaneously came into the house as his brother was stepping out of the house and that he also saw through the window as he walked along the road that all the accused had met him and he had seen all of them walking together. The second person to have seen the accused is the brother of the deceased, PW-3, who simultaneously came into the house as his brother was stepping out of the house and that he also saw through the window as he walked along the road that all the accused had met him and he had seen all of them walking together. The third person who has seen the accused together with the deceased is Rohan. Though he has stated as much in his evidence before the court, he has not mentioned the presence of Accused Nos.2 and 3. This is significant. The fourth person who has spoken about the accused being together with the deceased is Anil Kumar, a Kirana shop owner where the accused are said to have purchased gutkha. However, this witness has not supported the case of the prosecution and has been treated as a hostile witness. The fifth person is Tukaram. He was a tailor and it was his statement that though it was late in the night, namely after 11 p.m., he was on the street on his way to a Nursing home where his relative was said to have been admitted. He has stated that he saw the accused along with the deceased go into the Balbhavan premises. It is not clear as to whether Balbhavan premises had a compound wall and a gate and whether the gate was open at that time of the night. There is evidence on record to indicate that normally the gate is locked after nightfall and the public are not allowed access to the premises. However, it is stated by Tukaram that he saw Accused Nos.1 to 3 along with the deceased walk into the Balbhavan premises. Later, between 12.00 and 12.15 midnight, the said Tukaram is said to have returned from the nursing home and on his way back, he has noticed the accused walking out of the Balbhavan premises and the deceased was not along with them. These witnesses have surfaced only much after the complaint. Later, between 12.00 and 12.15 midnight, the said Tukaram is said to have returned from the nursing home and on his way back, he has noticed the accused walking out of the Balbhavan premises and the deceased was not along with them. These witnesses have surfaced only much after the complaint. The motive and the theory is sought to be explained by examining the brother of the deceased who has stated that he had first hand information from his brother about the incident, where the accused had visited Muralidhar’s house along with the deceased and that an argument had broken out between the deceased and Accused No.1 on the suspicion that the deceased had helped Muralidhar escape from the house, etc. The complainant himself was not aware of the said incident but only much later learnt about the ill will between the family of Accused No.1 and Muralidhar, since he had eloped with Seema, the sister of Accused No.1. Therefore, the motive was the first circumstance which the prosecution had to establish in order that there could be further presumption on the basis of the last seen theory and could be coupled with the recovery made, in firmly holding that it was the accused who had committed the murder of the deceased in the manner as sought to be projected by the prosecution. Insofar as the motive is concerned, there is no evidence tendered as regards the ill will said to have been generated on account of Muralidhar having eloped with Seema. Neither Muralidhar nor Seema are examined as witnesses. There is no evidence on record as to any incident either prior to or after the event of the murder to demonstrate that there was a burning ill will between the family of accused and Muralidhar and that it was of such magnitude that such venom could also be generated against a person such as the deceased who had incidentally and allegedly, helped Muralidhar in getting away from Accused No.1. There is not a single incident which is established by evidence tendered by the prosecution to build up the background to demonstrate that there was indeed a motive for the accused to have killed the deceased. In any case, there is no iota of evidence to link Accused Nos.2 and 3 along with Accused No.1 in having committed the murder of the deceased. In any case, there is no iota of evidence to link Accused Nos.2 and 3 along with Accused No.1 in having committed the murder of the deceased. One other significant circumstance is that the deceased is said to have had his dinner before leaving home and he was also said to have gone along with accused to a Dhaba as stated in the course of evidence. Therefore, he had had his dinner at home and also was at a Dhaba where he possibly consumed at least a drink, if not having had a full meal. But, at the post-mortem, it was found that his stomach was completely empty except for the large intestine which contained traces of faeces. Therefore, it could not be said that the time of the murder and the fact of the deceased having had dinner prior to the murder, is established. Therefore the very time of death, even if it could be approximately said, it was some time during the night of 3rd and 4th July 1996. The said fact has not been even remotely established. One other significant circumstance is that the post-mortem report does not indicate as to whether rigor mortis had set in and this would have been crucial in establishing the time of death, at least approximately. In the absence of such evidence and any attempt on the part of the prosecution to elicit this opinion from the Medical Practitioner who had conducted the post-mortem, it cannot be said that neither the motive nor the time of death is established with certainty. Insofar as the last seen theory projected by the prosecution which has been readily accepted by the Trial Court, rests on the evidence of PW-10 and PW-11, since the evidence of Anil Kumar does not support the case of the prosecution and as he has been treated as a hostile witness. The last seen theory rests on the evidence of P.Ws 3, 10 and 11. Insofar as PW-3 is concerned, this evidence is not corroborated by Rohan PW-11 who has not spoken about the presence of Accused Nos.2 and 3. Similarly, the evidence of PW-10 is not corroborated by PW-11 who has not spoken about the presence of Accused Nos.2 and 3. The inconsistency in the witness having seen the accused in opposite directions is also not capable of being reconciled. Similarly, the evidence of PW-10 is not corroborated by PW-11 who has not spoken about the presence of Accused Nos.2 and 3. The inconsistency in the witness having seen the accused in opposite directions is also not capable of being reconciled. A doubt arises as to whether the accused had walked into the Balbhavan premises, when there is evidence on record to state that there was a compound wall and it is a public building which is closed to the public after nightfall and the coincidence of Tukaram having seen the accused go into the building and also come out of the building when he was returning, may be more than an hour later, is also difficult to believe. The fact that there was ill will or that the accused and the deceased had fallen out, after having had an argument as already stated and may have reunited and that they were walking around in the night and going into Balbhavan premises and for what purpose, is not readily forthcoming. Further, it is the case of the prosecution that the several injuries found on the deceased were caused by the same weapon. This would lead to a presumption that there was only one assailant who had repeatedly stabbed the deceased and therefore, the presence of other accused or to attribute that they had assisted Accused No.1 in committing the murder of the deceased, is not readily established. It is conveniently stated that there were blood stained clothes and that Accused No.2 burnt his clothes and that only the ashes were found at the place where he had pointed out, does not also carry the case of the prosecution forward, for there is no forensic science laboratory report as regards the ashes allegedly recovered as being that of the blood-stained clothes of Accused No.2. The further recovery of clothes which was worn by Accused No.3 at the time of his arrest, did not also establish in fact as sought to be urged by the prosecution as there was no trace of blood or any other incriminating material that could be established by reference to the said clothes which were seized and marked as material objects. Insofar as the recoveries made are concerned, the law requires that it is necessary for the prosecution to demonstrate and point out the actual statements which led to such recovery and it was incumbent on the prosecution in the course of the evidence of the Investigating Officer to have got marked such parts of the statements that actually led to the recovery of material objects. This exercise has not been carried out and may even be fatal to the case of the prosecution, for it is on the basis of such recovery and voluntary statements allegedly made by the accused that the entire story is sought to be constructed. Therefore, the motive not being established to the satisfaction of this court, the last seen theory also being ridden with inconsistencies and contradictions by the witnesses and the involvement of Accused Nos.2 and 3 being doubtful in the circumstances aforesaid and the actual commission of the alleged murder by Accused No.1 not being witnessed by any person, would lead to a situation where it can safely be said that the prosecution has not established its case beyond all reasonable doubt. 8. Therefore, the detailed judgment of the Trial Court notwithstanding, we do not find that there is the basic material placed before the court which could have been accepted as bringing home the charges against the accused. Consequently, the appeal is allowed. The judgment of the court below is set-aside. The accused are acquitted and shall be set at liberty. The fine amount if any paid, shall be refunded to the appellants. The operative portion of the order shall be furnished to the counsel for the appellants, in order that the accused be set at liberty.