JUDGMENT : K.N. PHANEENDRA. J. 1. The appellant/accused has preferred this appeal calling in question the judgment of conviction and sentence dated 09.02.2012 passed against him by the Fast Track Court, Srirangapatna in SC No. 48/2007. 2. For convenience, hereinafter the appellant is referred to as 'accused'. The accused is sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- for the offence punishable under section 302 of IPC, also sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under section 201 of IPC. 3. The brief facts of the prosecution case on which the accused was tried before the trial Court are that: A person by name N. Hanumegowda and his wife by name Vijayakumari (PW-3 and PW-4) are the residents of Burudugunte village in Nagamangala Taluk, the deceased H. Sumalatha is their daughter She was residing with her father and mother along with other family members and she was studying in final year BA at the time of the incident. It is the case of the prosecution that the deceased Sumalatha had some menstrual problems and she had suspected that she was transposing herself as male and there were let of symptoms in this regard. The said Sumalatha wanted to get herself operated in this regard. The accused who was the relative of Hanumegowda, was often visiting the house of Hanumegowda and he came to know about the difficulty of the deceased Sumalatha and he assured her that he would get her operated at Chennai and solve her problem. He also assured her that if she got an amount of Rs.1 lakh or any gold ornaments from her house, they could sell the gold ornaments and reap money for the purpose of operation, then he could take her to Chennai and get her operated so that her menstrual problem could be solved. By this way, the accused had created fond of hope in the mind of the deceased. 4. It is the further case of the prosecution that accused had no intention to get her operated. By this way, the accused had created fond of hope in the mind of the deceased. 4. It is the further case of the prosecution that accused had no intention to get her operated. However, he had some grievance against the father and mother of the deceased with reference to some money transaction and also his movements with Sumalatha was not relished by her parents, In this regard, they were telling the accused not to visit their house and meet the deceased. So the accused was nurturing hatred and ill-will against the father and mother of the deceased Sumalatha. 5. Further, it is the case of the prosecution that the accused was having a Car with him and he was indebted to many and he wanted to discharge those loans. Therefore, he was in died need of money. The accused taking advantage of the situation in the family of the deceased, in order to grab money from the deceased and with an intention to do away with her life, he had persuaded her to come out of the house along with the gold ornaments. 6. In this backdrop, it is the story of the prosecution that on 21.10.2006 at about 5.30 p.m., the deceased left the house along with gold ornaments and some clothes. She went to the house of her friend Shwetha PW-5, resident of Bengaluru and stayed there for three days and she had telephonic conversation with PW-2 Arun and also with the accused. The accused in fact had called her to go near BDA complex at Bengaluru, at 5.00 p.m., on 25.10.2006 along with gold ornaments. Accordingly she went to that particular place along with PW2. The accused on the above said date at 6.30 p.m., took the deceased along with him in his Icon car No.KA-05/3533, and this was seen by PW-2. It is the case of the prosecution that he took the deceased in the car towards Mysore and when the car reached Maddur at about 12.00 O'clock in the midnight, the accused accomplished his intention by killing her. He forcibly dashed the head of the deceased to the Car door and also by using a shining cloth, he strangulated her neck and committed her murder and thereafter, he brought the dead body of Sumalatha and threw the same near Gowdahalli gate in Srirangapatna Taluk of Bengaluru -Mysore road in a bush. 7. He forcibly dashed the head of the deceased to the Car door and also by using a shining cloth, he strangulated her neck and committed her murder and thereafter, he brought the dead body of Sumalatha and threw the same near Gowdahalli gate in Srirangapatna Taluk of Bengaluru -Mysore road in a bush. 7. The dead body of the deceased Sumalatha was found by PW-1 Vijayendra on 26.10.2006, who informed the police in this regard. The police visited the spot and conducted the inquest proceedings on the dead body and they made all their efforts to get the dead body of Sumalatha, identified but they could not. As such, they made arrangements to keep the dead body in a cold storage from 26.10.2006. Ultimately, on 31.10.2006, the father and mother of the deceased were able to know that the dead body of Sumalatha was in the Hospital and they accordingly went to the Police Station and Hospital and thereafter, identified the dead body. The father of the deceased Hanumegowda came to know about the movements of the accused and Sumalatha from 21.10.2006 to 25.10.2006 on 1.11.2006 from PW2 Arun. Thereafter, he lodged a complaint on 2.11.2006 before police, suspecting the hand of the accused with regard to the death of the deceased. On this information, the police registered a case in Crime No.364/2006 for the offence punishable under section 302 of IPC and investigated the matter and submitted a charge sheet against the accused. 8. It is the case of the prosecution that during the course of investigation, after arrest of the accused, they recovered the incriminating articles particularly, a Car which was used for taking the deceased with him and also the ornaments which were taken by Sumalatha while leaving the house and also the shining cloth which was used for strangulating the deceased. 9. On the basis of the above said facts, the trial Court secured the presence of the accused and after committal proceedings, framed charges against the accused for the offence punishable under section 302 and 201 of IPC. As the accused pleaded not guilty, he was tried by the trial Court. 10. In order to prove the guilt of the accused, the prosecution in all examined 13 witnesses as PWs.1 to 13 and got marked Exhibits P1 to P26 and Material Objects MOs.1 to 12. As the accused pleaded not guilty, he was tried by the trial Court. 10. In order to prove the guilt of the accused, the prosecution in all examined 13 witnesses as PWs.1 to 13 and got marked Exhibits P1 to P26 and Material Objects MOs.1 to 12. During the course of cross examination, exhibits D1 to D14 were got marked. Exhibit C1 was also got marked by the Court. 11. On overall analysis and appreciation of the oral and documentary evidence on record, the trial Court came to a conclusion that, the accused was the perpetrator and therefore, he was convicted and sentenced accordingly. 12. The learned counsel appearing for the accused strenuously contends before this Court that the entire case revolves around the circumstantial evidence. The prosecution has to prove all the circumstances beyond reasonable doubt. The prosecution mainly relied upon the circumstances of 'last seen' of the accused and deceased together and also the recovery of some gold ornaments of the deceased at the instance of the accused. The learned counsel contends seriously that the accused has disputed even the homicidal death of the deceased and also the motive factor and other circumstances relied upon by the prosecution. He contends that the trial Court has not properly appreciated the evidence of the prosecution witnesses. There are lot of inconsistencies in the evidence of the prosecution witnesses and even there is long delay in lodging the FIR. The prosecution has also not brought out the case beyond reasonable doubt. There are serious doubtful circumstances, which have not been properly considered and answered by the trial Court. Therefore, he submits that the trial Court has committed serious error in convicting and sentencing the accused. Hence, the judgment deserves to be set aside. 13. Per contra, Sri. Vijaya Kumar Majage, learned Addl. SPP strenuously contended that the trial Court has properly appreciated the evidence on record particularly the evidence of the father and mother of the deceased and PW-2 who have actually last seen the deceased with the accused. It is contended that the trial Court has also considered the motive factor and as well the recovery of the incriminating articles at the instance of the accused and found the accused guilty. It is contended that the trial Court has also considered the motive factor and as well the recovery of the incriminating articles at the instance of the accused and found the accused guilty. Though there are some inconsistencies, omissions and contradictions in the evidence of the prosecution witnesses including the Investigating Officer, but none of those inconsistencies or contradictions would go to the root of the prosecution case in order to uproot the entire case. Therefore, if minor omissions and contradictions are ignored, there is strong and acceptable evidence available in this case. Therefore, he contends that even on re-appreciation of the evidence on record, it would not give any room to interfere with the judgment of the trial Court. Therefore, he pleads for dismissal of the appeal. 14. Having heard the arguments and after re-appreciation of the entire materials on record, the point that would arise for our consideration is: "Whether the appellant has made out any reasonable or substantial ground to interfere with the judgment of conviction and sentence passed against him by the trial Court and that the prosecution has not proved the case against the accused beyond reasonable doubt?" 15. The case is one of circumstantial evidence. On considering the entire materials on record, it appears, the prosecution has relied upon five major circumstances in this case which are: (1) Homicidal death (2) Motive (3) The accused and the deceased having been last seen together (4) Recovery of incriminating articles at the instance of the accused (5) The conduct of the accused. 16. Before adverting to the relevant evidence of the witnesses pertaining to the above said circumstances, we would like to have a brief account of the evidence of the witnesses Thereafter, we would like to consider the evidence of each witnesses with reference to the circumstances noted above. 16.1. PW-1 Vijayendra is a formal witness. He has not given any incriminating evidence against the accused. He is resident of Gowdahalli village. He saw the dead body of a female on 26.10.2016, on Bengaluru - Mysore road near his village. He found 4-5 persons watching the dead body of a female. By giving detailed description of the dead body he gave a complaint to the jurisdictional police i.e., Srirangapatna police as per Ex.P1 on which basis, the police registered a case in UDR. No. 50/2006. 16.2. He found 4-5 persons watching the dead body of a female. By giving detailed description of the dead body he gave a complaint to the jurisdictional police i.e., Srirangapatna police as per Ex.P1 on which basis, the police registered a case in UDR. No. 50/2006. 16.2. PW-2 Aruna has spoken about the family affairs of the deceased and also about the difficulties of the deceased with regard to her menstrual periods and thereafter, the deceased going to the house of Shwetha leaving her house and going along with the accused person on 25.10.2006. 16.3 PWs. 3 & 4 Hanumegowda as well as Vijaya Kumari, father and mother of the deceased have spoken about the conduct of the accused and the deceased, they having come to know about the accused and deceased going together through PW2 and lodging of the complaint on 2.11.2006 by PW-3 and also with regard to the identification of the dead body, the deceased taking the clothes and the ornaments belonging to them while leaving their house. 16.4. PW-5 Shwetha, is the close friend of the deceased Sumalatha. She has deposed before the Court with regard to the deceased Sumalatha coming to her house on 21.10.2006 and staying in her house upto 25.10.2006, on which day, the deceased left her house in the evening. She has also spoken about the conversation between the deceased on one side PW2 and the accused on the other side. She has also spoken about some ornaments given to her by deceased with instructions that, she would take back them later. 16.5. PW6 G.K. Kumar and PW7 Lokesh are the panch witnesses to Ex.P:L2 which is the spot mahazar where the dead body was found. Both of them have turned hostile to the prosecution, but they have admitted their signatures on Ex.P12. 16.6. PW-8 Dr. Y. Udaya Shankar, of Mysore Medical College has deposed with regard to conducting of the Post Mortem examination on the dead body of Sumalatha on 31.10.2006. He has given opinion about the injuries and as well as the cause of death of the deceased in the Post Mortem examination report marked at Ex.P-13. He has also given opinion as per Ex.P14 regarding the articles sent for his examination. PW-9 Jayaram is a panch witness to Ex.P7 under which some incriminating articles were recovered at the instance of the accused. He has also given opinion as per Ex.P14 regarding the articles sent for his examination. PW-9 Jayaram is a panch witness to Ex.P7 under which some incriminating articles were recovered at the instance of the accused. Except admitting his signature, he did not support the case of the prosecution. PW-10 Mallesh gowda is another panch witness to the same Mahazar Ex.P7 and in detail, he has supported the case of the prosecution and spoken about the recovery of a car belonging to the accused and other articles belonging to the deceased. 16.7. PW-11 6. Beluraiah, who was working as PC No. 167 at Srirangapatna Police Station. He had taken the dead body of the deceased for Post Mortem examination to the Hospital. To some extent, this witness turned hostile. He was cross examined by the prosecutor with reference to the SIM cards which were found in the pant pocket of the deceased sent by the doctor through this witness. PW-12 Kantharaju is the Investigating Officer who conducted part of the investigation while working as PSI Srirangapatna. At that time, he actually registered a case on the complaint lodged by PW-1 as per Ex.P1 initially in UDR No. 50/2006. He conducted the inquest panchanama on the dead body seized the clothes of the deceased and also arrested the accused. He also speaks about the complaint lodged by PW3 Hanumegowda on 2.11.2006 and registration of a case in Crime No.364/2006 for the offence punishable under section 302 and 201 of IPC. He has also spoken about the arrest of the accused on 4.11.2006 and production of the accused before the Investigating Officer PW-13. PW-13 is the Investigating Officer who has thoroughly invesltigatled the matter. He has spoken about the recovery of the incriminating articles from the accused after recording his voluntary statement and collecting all the evidence. He has laid the charge sheet against the accused. 17. On perusal of the above evidence, it is seen that the evidence of some of the witnesses only is available to the prosecution. The witnesses who turned hostile to the prosecution case to certain circumstances are of no avail to the prosecution. 18. He has laid the charge sheet against the accused. 17. On perusal of the above evidence, it is seen that the evidence of some of the witnesses only is available to the prosecution. The witnesses who turned hostile to the prosecution case to certain circumstances are of no avail to the prosecution. 18. In the above said background, now we would like to discuss each and every circumstance in detail to ascertain whether the trial Court is right in accepting the said circumstances as proved beyond reasonable doubt in order to record a judgment of conviction, sentencing the accused accordingly. 19. Homicidal Death: Much has been argued so far as the homicidal death is concerned by the learned counsel. In this background, we have to examine whether the prosecution has proved the homicidal death of the deceased or not. The proof of homicidal death is an harbinger to prove the case against the accused. Unless homicidal death is proved by the prosecution, the Court is not in a position to ascertain who has committed such homicidal death of the deceased. Where a homicidal death is sought to be established by circumstantial evidence, there must be clinching evidence leading to an inference that, the victim has met with a homicidal death. However, the circumstances shall be considered with all human probabilities with reference to the homicidal death. Homicidal death itself pre-supposes that the death is by means of killing and it is different from other types of death like natural death, accidental death, suicidal death and other types of unnatural death. If it is shown to the Court by means of materials on record that the deceased did not die any other type of death and there are probabilities to show that the deceased died a homicidal death that would suffice. With this background, we would like to consider the evidence placed on record with regard to homicidal death. 19.1 It is the contention of the learned counsel for the appellant that the police found the dead body of the deceased on 26.10.2006 itself. The case of the prosecution is that the deceased died a homicidal death on 25.10.2006. Further, it is contended that the doctor has not given the time of death properly because the Post Mortem report was conducted on 31.10.2006 and the doctor has stated that the death was between 24 to 48 hours. The case of the prosecution is that the deceased died a homicidal death on 25.10.2006. Further, it is contended that the doctor has not given the time of death properly because the Post Mortem report was conducted on 31.10.2006 and the doctor has stated that the death was between 24 to 48 hours. Therefore, the death should have occurred either on 29th or 28th and not on 26th as projected by the prosecution. Therefore, the time of death and homicidal death is not properly established in this case. The prosecution examined PWs. 6 & 7 who are the witnesses to the inquest and doctor PW8 who conducted the Post Mortem examination coupled with the evidence of the Investigating Officer in order to establish the homicidal death. First we would like to consider the evidence of the Investigating Officer and the inquest witnesses. 19.2. The Investigating Officer PW-12 Mr. Kanthraj has deposed before the Court that after registering the case in UDR No. 50/2006, the immediately went to the spot where the dead body was found along with his staff and panchayathdars DK Kumar and DC Lokesh and conducted the inquest proceedings between 3 and 5 p.m., on 26 10.2006. The dead body was found near a bush on the main road on Bengaluru - Mysore road near Gowdahalli gate. He has also stated about the clothes which were on the dead body and as well the injuries. He also specifically observed that there was ligature mark measuring 8 x 1 cm and he conducted the panchanama in the presence of the panch witness Ex.P-12. It is also stated that after conducting of the inquest he sent the dead body to the Hospital with a request to keep the dead body in a cold storage for some days. On 31.10.2006, as he was not able to locate or find out the relatives of the deceased, he has given the dead body for Post Mortern examination along with a letter. Thereafter, the doctor who conducted the Post Mortem examination sent two SIM cards found inside the clothes of the deceased and thereafter he ascertained the telephone number pertaining to one Shwetha and she disclosed that the said SIM belonged to the deceased Sumalatha. Subsequently, the identification of the dead body was done by the said Shwetha, father and mother of the deceased and other witnesses. 19.3. Subsequently, the identification of the dead body was done by the said Shwetha, father and mother of the deceased and other witnesses. 19.3. The identification of the dead body by the witnesses and also conducting of the inquest by this witness is not disputed much during the course of cross examination, except questioning the Form No.146(1) which is the intimation letter sent to the doctor by this which we would discuss little later. Therefore, there is no reason to disbelieve the evidence of the Investigating Officer with regard to the identification of the dead body and as well the conducting of the inquest on 26.10.2006. PWs. 6 & 7 though they have turned hostile to the prosecution, nevertheless, have identified their signatures in the inquest proceedings. PW-6 has in fact almost admitted the inquest conducted by the police. He has stated that on that particular day, he was proceeding to his village from Srirangapatna, the police were present near the dead body of a lady and he also observed the said dead body and put his signature to Ex.P-12. The photographs also appear to have been taken at the time of conducting the inquest. Though he has seen the photo, he said that he cannot identify the dead body. It is quite natural that he was not a person who knew the deceased at the time of inquest or at any time earlier to that. Therefore, it cannot be expected that he could identify the dead body. PW-7 has also stated in the same fashion and he has also stated that he saw the dead body and about the police conducting the inquest on the spot on the particular day. He has stated that there was a jeans pant and a shirt worn by the deceased. This particular aspect matches with the evidence of the Investigating Officer and as well PW-6 sofar as the inquest proceedings are concerned. This manifestly proves that the police conducted the inquest proceedings on the dead body of the deceased Surnalacha which was identified as her dead body subsequently by the witnesses including the parents. 19.4. PW-8 Dr. Y. Udaya Shankar conducted the Post Mortem examination on the dead body on 31.1.2006. This manifestly proves that the police conducted the inquest proceedings on the dead body of the deceased Surnalacha which was identified as her dead body subsequently by the witnesses including the parents. 19.4. PW-8 Dr. Y. Udaya Shankar conducted the Post Mortem examination on the dead body on 31.1.2006. He has categorically stated that there were as many as 10 injuries on the dead body on various parts of the body, particularly on the left eye-brow, on the stomach, left elbow etc., He also observed that there was extra vassation of the blood inside the head due to the impact of the internal injury to the head. On thorough examination of the dead body, he has stated that the death was due to asphyxia as a result of strangulation. The word strangulation used by the doctor itself shows that a it is not a suicidal death or any other type of death. Therefore, human intervention is absolutely required for the purpose of causing death by strangulation. Though the doctor has been cross examined at length, much has been concentrated with regard to form No. 146 sent by the police and as well over writings in the said document. But with regard to the homicidal death of the deceased, there is no cross examination. It is also not the case of the accused that the deceased died otherwise than a homicidal death. The Post Mortem examination would be done only for the purpose of ascertaining the cause of death. Therefore, by reading the above said evidence of the witnesses, it can be safely said that the prosecution has proved the homicidal death of the deceased. 20. Now, coming to the discrepancy as pointed out by the learned counsel with regard to the time of death as well as Form No. 146 sent by the police to the Investigating Officer and over writings therein. 20.1. It is the case of the prosecution that on 26.10.2006 itself, the dead body of the deceased was traced and after conducting the inquest proceedings, the doctor was requested to keep the dead body in a cold storage and accordingly it was kept in the cold storage upto 31.10.2006. On 31.10.2006, the dead body was sent for Post Mortem examination along with Form No.146. 20.2 PW-12 PSI has deposed that he had sent the dead body for Post Mortem examination through HC No.44 along with 146A Form. On 31.10.2006, the dead body was sent for Post Mortem examination along with Form No.146. 20.2 PW-12 PSI has deposed that he had sent the dead body for Post Mortem examination through HC No.44 along with 146A Form. In the course of cross examination, he has admitted that Ex.C-1 is Form No. 146/1 sent by him and he has also admitted that there is some over-writings in the said document with regard to the writing of the time as 6.00 p.m., and also the writings that the dead body was of an unknown lady and thereafter the name of Sumalatha, H was written. But he pleads his ignorance as to who has written the same. The said Ex.P146(1) was prepared by this witness on 31.10.2006 in the morning at 11 00 a.m., but there are certain discrepancies in the said document. The carbon copy of the said document is also marked before the Court as Ex.D-14 which does not bear the corrections and over writings as found in Ex.C-1. In Ex.C-1, it is seen that the identification of the dead body was shown as unknown lady. But subsequently, the name of the deceased is written as Sumalatha H. These over writings are not there in Ex.D-14. Therefore, it is contended by the learned counsel that the prosecution has not proved as to how these over-writings have been done. The doctor PW-8 who conducted the Post Mortem examination received the original i.e., Ex.C-1. He has deposed before the Court that he received Form No. 148(1) which is marked at Ex.C-1. The original was received by him and he has given the carbon copy to the police. He has further deposed that the original of Ex.C-1 was kept by himself. It is also there in his evidence that when he received the dead body with Ex.C-1, it was not in his knowledge that the said dead body was of Hemalatha. Later, in fact, he received some more information about the dead body. Therefore, he has written the said facts in Ex.C-1 and he has specifically admitted that actually he made all the over writings in Ex.C-1. He has also stated that because he had no carbon copy with him, i.e., Ex.D-14, the information given by the police in order to correct Ex.C-1, there was no such corrections effected in Ex.D-14. 20.3. Therefore, he has written the said facts in Ex.C-1 and he has specifically admitted that actually he made all the over writings in Ex.C-1. He has also stated that because he had no carbon copy with him, i.e., Ex.D-14, the information given by the police in order to correct Ex.C-1, there was no such corrections effected in Ex.D-14. 20.3. On perusal of the evidence of the doctor and the Investigating Officer, it is crystal clear that the doctor has incorporated the information given by the police in Ex.P-146. As there is no dispute with regard to the death of Hemalatha and also the identification of the dead body by her father and others in the Hospital., these over writings or information incorporated in Ex.P-146 is in no way fatal to the prosecution case. Moreover, the said discrepancy in the document has been explained and the un-interested testimony of the doctor cannot be doubted so far as this interpolations in the document are concerned. Though much has been argued by the learned counsel in this regard, in my opinion, the above said facts and doubts have been clearly explained by the doctor admitting that he was the person who made such in-corporations in Ex.C-1. Therefore, the argument of the learned counsel in this regard, is not tenable that the doctor or the police have not incorporated the said improved information in Ex.D-14, and there is no doubt with regard to Homicidal death of the deceased. 21. Motive: The motive alleged in this case by the prosecution as could be seen from the tone and tenor of the evidence led by the prosecution is that, the accused is the person who is the resident of the same village as that of the deceased and he developed intimacy with the family members of the deceased. In this context, he was often visiting the house of the deceased and talking with the members of the family of the deceased. Taking advantage of the situation, that the deceased Sumalatha was transposing herself as a transgender, he persuaded her assuring to take her to the Hospital at Madras and get her operated in order to avoid her menstrual disorder and he also persuaded her that she has to bring an amount of Rs. 1 lakh or gold ornaments worth Rs. 1 lakh, so that they could go to Madras for operation. 1 lakh or gold ornaments worth Rs. 1 lakh, so that they could go to Madras for operation. The accused had intended to grab the money or the gold ornaments from Sumalatha in this regard. He persuaded her to bring money or gold articles. The second limb of motive factor is that the accused was not happy with the father of the deceased. PW-3, the father of the deceased was also not happy with the conduct of the accused. Therefore, he instructed his wife and the family members not to entertain the accused. In this background, the accused was nurturing ill-will and hatred against the family members of the deceased. So, in order to have wrongful gain at the cost of the deceased and as well to pursue his ill-will and hatred against the father of the deceased, the accused to wreck vengeance and for wrongful gain committed the murder of the deceased. 21.1. So far as the motive part is concerned, the prosecution has mainly concentrated upon the evidence of PW -3 & PW-4, the father and mother of the deceased. Of course, in the examination in chief as noticed above, they have given a very feeble evidence with reference to the motive factor. The first limb of the motive factor as noted above is with regard to the acquaintance developed by the accused with the deceased and the parents of the deceased. In this background, the cross examination of these two witnesses has to be seen. It is even stated in the cross examination that in the year 2004-05, the family members of the deceased including this PW-3 had been in the car of the accused to Mahadeshwara temple, Nanjangud and other holy places engaging the taxi of the accused. It is also stated that the deceased was treating the accused like her brother and he used to visit the house of PW-3 very frequently. But, what is the specific conduct of the accused which made PW-3 to hate him or directing his family member? not to entertain the accused is not stated. But very vaguely, it is stated that from the date he instructed his family members not to entertain the accused, the accused has been nurturing ill-will against the family members. But, what is the specific conduct of the accused which made PW-3 to hate him or directing his family member? not to entertain the accused is not stated. But very vaguely, it is stated that from the date he instructed his family members not to entertain the accused, the accused has been nurturing ill-will against the family members. It is also admitted by him even after PW3 instructed his family members not to entertain the accused, he continued his contact with the deceased over phone. Except this, nothing has been stated by PW-3 so as to draw an inference that because of PW-3 telling his family members not to entertain the accused, he had a strong motive to do away with the life of the deceased. 21.2. PW-4, the mother of the deceased has also reiterated in the course of her cross examination that her husband had instructed her not to entertain the accused, on the ground that accused is not having a good character. But she never stated anything about the conduct of the accused in this regard. On the other hand, she has stated that the deceased was treating the accused as her brother and often he used to visit their house and they all together went to various holy places in the car of the accused. She never stated anything about the conduct of the accused in order to come to a conclusion that the accused at any point of time mis-behaved with the deceased or with the family members of the deceased, which made PW-3 to instruct his family members not to entertain the accused. Therefore, considering the above said evidence led by the prosecution, it is very difficult to come to a definite conclusion that on this ground, the accused was nurturing ill-will against the family members of the deceased, & intended to kill the deceased and that was the motive. 21.3. The second limb of motive is that the accused had heavily borrowed for the purchase of car and in the is regard for the purpose of extracting money from the deceased, he persuaded her to bring cash or gold articles, on the guise of taking her to Madras for medical treatment. The prosecution has relied upon the letters written by the deceased left in the house which were found by PWs.3 & 4 in their house which are marked at Exs.P8 and P10. The prosecution has relied upon the letters written by the deceased left in the house which were found by PWs.3 & 4 in their house which are marked at Exs.P8 and P10. On careful perusal of these two letters written by the deceased, there is absolutely no whisper with regard to the name of the accused though the said letters are very lengthy. The sum and substance of these two letters are that the deceased had developed inferiority complex in the house and it appears the family members had also not taken care of the deceased to get her operated as she was transposing into a male. In this background, she had expressed her anxiety and also intention to leave the house in order to get herself separated from the family members and to lead her own life. She had also stated about taking away of some gold ornaments by herself and it is also specifically stated that she had written those letters without being influenced by anybody. Therefore, these letters are also not helpful to the prosecution to come to the conclusion that the accused got written these letters through the deceased in order to accomplish his bad intention of having wrongful gain at the cost of the deceased. There is no strong evidence to believe that the accused persuaded the deceased to write these letters. 22. As we have discussed, the motive factor is a two edged weapon. If the motive on the part of the accused is not proved beyond doubt-, in such circumstances, the fact remains that PWs.3 & 4 had some differences with the accused and there may be chance of implicating the accused on that ground, as the real culprit in the case is not traced by the police. In this background, keeping of the dead body in the cold storage for a period of more than five days creates a serious doubt as to whether the police had no information about the culprit. Therefore, it also creates a serious doubt as to whether due to the differences between PW-3 and the accused, he has implicated the accused only on doubt and suspicion. 23. In this background, 'the last seen theory' that is accused and deceased, seen together play a dominant role. Therefore, it also creates a serious doubt as to whether due to the differences between PW-3 and the accused, he has implicated the accused only on doubt and suspicion. 23. In this background, 'the last seen theory' that is accused and deceased, seen together play a dominant role. We must say here that the prosecution has not established the motive factor also beyond reasonable doubt and in our opinion, the same is very feeble in nature. 24. Last Seen Theory; The prosecution in order to establish this strong and vital circumstance against the accused has relied upon mainly the evidence of PW.2 Aruna, PWs.3 & 4, the father and mother of the deceased and as well PW-5 Shwetha, friend of the deceased. 24.1. According to the prosecution and as per the evidence of PWs.3 & 4, the deceased left the house on 21.10.2006 taking away some gold ornaments from the house. It is their case that on that day, it was Diwali festival, they performed Lakshmi pooja in the house. The deceased left the house by taking some gold ornaments. Particularly, it is stated that one long gold chain, one necklace and two bangles which were kept for Pooja, were all taken away by the deceased by leaving two letters marked at Ex.P8 and P10, which we have already referred to. She was also wearing on that day one gold chain and one gold ring. They searched for their daughter for about 3-4 days, but they were not able to locate her whereabouts. 24.2. It is the further case of the prosecution and as per the evidence of PWs.2 & 5 that on 21.10.2006, the deceased came out from the house in the evening and at that time, PW2 was near his house. She handed over a college bag and asked PW2 to accompany her to bus stand. Accordingly, PW-2 went along with her upto bus stop. 24.3. PW-5 has stated that on 21.10.2006, the deceased came to her house, stayed in her house upto 25.10.2006. On 23.10.2006 she secured the presence of PW-2 to the house of PW-5 and they talked with each other and thereafter, on 25.10.2006 in the evening at 5.00 p.m., she left the house of PW-5 Shwetha. 24.4. 24.3. PW-5 has stated that on 21.10.2006, the deceased came to her house, stayed in her house upto 25.10.2006. On 23.10.2006 she secured the presence of PW-2 to the house of PW-5 and they talked with each other and thereafter, on 25.10.2006 in the evening at 5.00 p.m., she left the house of PW-5 Shwetha. 24.4. It is the case of the prosecution that the deceased Sumalatha requested PW-2 to go near BDA complex, at Banashankari at about 5.30 p.m and accordingly PW-2 went there and he saw the accused and deceased together along with the car of the accused. The accused took Sumalatha with him in his car and thereafter, PW-2 went back to his house. It is the further case of the prosecution that on 26.10.2006, the dead body of the deceased was found near the land of PW-1 Vijayendra on Mandya and Mysore Road in a forest like area. Therefore, the prosecution has strongly suspected the hand of the accused that he was last seen together with the deceased and it is established. Therefore, it is the onus on the accused to establish as to what happened to the deceased and when he parted with the company of the deceased. In this background, now we would like to discuss the evidence of these two witnesses in detail. 24.5. PW-2 Aruna is the main star witness of the last seen Circumstance. The evidence of PWs.3 & 4 is only to the effect that on 20.1.2006, the deceased was missing from their house. The evidence of PW-5 shows that on the same day, the deceased had been to the house of PW-5. PW-5 has also stated that deceased stayed in tier house upto 25.10.2006 and left the house of PW-5 on 25.10.2006. This evidence is not sufficient to implicate the accused to the crime. Therefore, the evidence of PW-2 who is the only person who saw the accused and deceased together on 25.10.2006 in the evening would play a dominant role in this particular case. Of course, PW-2 in his examination in chief has categorically stated that, the deceased was telling that she had to undergo some operation and for that she required an amount of Rs.2 lakhs. She had also told him that she would like to go along with the accused to undergo such operation in Chennai. Of course, PW-2 in his examination in chief has categorically stated that, the deceased was telling that she had to undergo some operation and for that she required an amount of Rs.2 lakhs. She had also told him that she would like to go along with the accused to undergo such operation in Chennai. PW-2 has also stated that on 23.10.2006, he had been to the house of PW-5 Shwetha and there he talked with the deceased. Sumalatha told him that she is proceeding to Chennai and she requested PW-2 net to disclose the said fact to anybody and she also requested him to go near the BDA complex on 25.10.2006 at about 5.30 to 6.00 p.m. Accordingly, he went there and saw the accused and the deceased together and thereafter the accused took Sumalatha with him in his car. This exactly, the statement made by him. Sofar as this particular circumstance is concerned. But in the course of cross examination, he has deposed that he has not stated before police in that manner that is "on 25.10.2006 at 6.00 p.m., on the request of Sumalatha, he went near BDA Complex and he got down from Auto and he saw the accused and deceased together near the Icon car of the accused bearing No. KA-05/D-3533 and thereafter the accused took the deceased inside the said car, closed the glass and doors and went away." This witness has specifically stated that he has not given such statement before police as per Ex.D-10. 25. Sofar as this material contradiction is concerned, the same has been elicited from the Investigating Officer that PW-2 Aruna has stated before this witness that on 25 10.2006, he had received a phone call from the deceased and she requested him to go over to BDA Complex at 5.30 p.m., and that he went to that particular place. But, it is suggested that the said person has not stated before police in such manner. Though the witness has supported to that extent in his examination in chief, the discrepancy arose in the course of cross examination as the witness has specifically admitted that he has not stated the said material fact before police. Though the Investigating Officer has stated in a disturbed version that the witness has stated as per Ex.D-10, it is very difficult to rely upon such shaky evidence or the witnesses with all certainty. Though the Investigating Officer has stated in a disturbed version that the witness has stated as per Ex.D-10, it is very difficult to rely upon such shaky evidence or the witnesses with all certainty. Therefore, in this background, the other aspects of the cross examination of this witness coupled with the evidence of other witnesses have to be looked into. 26. Though this witness PW-2 has stated that he saw the accused and the deceased together, but, on 31.10.2006 itself, he met the father of the deceased and on 1.11.2006 also, he had attended the cremation of Sumalatha. But he has not stated anything about the accused and deceased last seen together on 31.10.2006 at the earliest point of time to the father of the deceased. But, he states that on the next day, that was on 1.11.2006, when they were talking together, then only he disclosed that Suresh and Sumalatha were together on 25.10.2006. Therefore, he suspected that accused must have committed the murder of the deceased. Even having received such information, PW-3, the father of the deceased did not go to the Police to lodge a complaint immediately. But, he lodges the complaint on the next day i.e., on 2.11.2006. 27. During the course of cross examination, he has further admitted that after the cremation of Sumalatha's dead body, he had been to Hyderabad for two months and stayed there and therefore, he had no occasion to meet the police and he has not given any statement before police during this particular point of time. The evidence of the Investigating Officer (PW-12) coupled with the 161 statement of PW-2 recorded by PW-12 under Section 161 of Cr.P.C. shows that his statement was recorded on 4.11.2006 and not before that. That means, after two days of the complaint, his statement was recorded. There is no reason as to why on 2.11.2006, his statement was not recorded and whether he was available or not is not stated. But, according to this witness, immediately after the cremation of the dead body of Sumalatha, he left for Hyderabad and he could not meet the police for a period of two months and during this period, he had not given any statement before police. Therefore, recording of the statement of this witness also creates a serious doubt. 28. But, according to this witness, immediately after the cremation of the dead body of Sumalatha, he left for Hyderabad and he could not meet the police for a period of two months and during this period, he had not given any statement before police. Therefore, recording of the statement of this witness also creates a serious doubt. 28. This witness has further stated in the course of cross examination that, he had talked to Shwetha as well as the deceased over phone. The police have not taken any steps to collect any call details pertaining to the mobile phone of this witness or the said Shwetha to ascertain whether at that particular point of time, the deceased Sumalatha had called PW-2 at about 5.00 p.m., on 25.10.2006 to call him near BDA complex at 6.00 p.m., The Investigating Officer has not at all stated anything as to why he has not collected the call details. He simply deposed that he has not collected such details. It is also stated by PW-2 that at the time of the cremation of the dead body of Sumalatha, Shwetha and himself were present and they talked with each other on that day also. But, they never disclosed any facts to the father and mother of the deceased. When such an important malarial fact was available with them, why they have not disclosed the same at the earliest point of time to the father of the deceased? 29. Though there are some discrepancies in the evidence of PW-2, his evidence cannot be altogether discarded and it should be tested with the evidence of other witnesses. 30. PW-3 Hanumegowda, the father of the deceased has in fact stated that on 21.10.2006 itself, he came to know about the letters written by the deceased. But he neither lodged any missing complaint nor had been to the Police Station to inform the same. But abruptly after cremation of the dead body of Sumalatha, he implicates the accused saying that the said letters Ex.P8 and P10 were written by the deceased at the instance of the accused. There is no basis for this particular allegation. This allegation also shows that PW-3 had some grievance against the accused. This witness has further stated that on 1.11.2006, PW-2 had disclosed that the accused and the deceased went together in a Car on 25.10.2006. There is no basis for this particular allegation. This allegation also shows that PW-3 had some grievance against the accused. This witness has further stated that on 1.11.2006, PW-2 had disclosed that the accused and the deceased went together in a Car on 25.10.2006. But on 1.11.2006 when PW-3 has taken the dead body from police and cremated the same, still on that day, he did not go to the police station and lodge any complaint, but he gives an explanation that on 2.11.2006, he went to the Police Station and lodged the complaint. It is there in the evidence of this witness that on 31.10.2006 itself, PW-2 was with them and on that day, PW-2 had talked with the son of the PW-3. But it is not stated that on 31.10.2006 itself, PW-2 had stated anything about the accused and the deceased seen together by him on 25.10.2006. But it is stated by this witness that on 01.11.2006, PW-2 gave such details to him. This also creates some doubt as to why PW-2 had not disclosed such important fact at the earliest point of time. It is also admitted by PW-3 that on the next day i.e., on 1.11.2006 also in the morning, PW-2 had been to the place where the dead body was kept and he was there upto 2.30 in the afternoon till the cremation of the dead body. But, even during this time, he did not disclose to PW-3 or anybody about the last seen together circumstance. PW-3 further states that PW-2 had already told about the above said fact to the son of PW-3 on 31.10.2006, but his son has not stated anything about that to his father i.e., PW3. This also creates a serious doubt. If PW-2 had actually seen the incident on 25.10.2006 itself and he came to know about the murder of Sumalatha, in spite of that, though he had opportunity on 31.10.2006 and on 1.11.2006 upto 2.30 p.m., why he did not disclose the same to the family members of the deceased, is not explained. 31. PW-3 has further admitted that, in the complaint, he has stated that PW-2 had stated before him that on 24.10.2006 itself, the said girl Sumalatha told PW-2 Aruna to go to BDA Complex. He clarifies the same that instead of telling 25.10.2006 he has wrongly written as 24.10.2006. 31. PW-3 has further admitted that, in the complaint, he has stated that PW-2 had stated before him that on 24.10.2006 itself, the said girl Sumalatha told PW-2 Aruna to go to BDA Complex. He clarifies the same that instead of telling 25.10.2006 he has wrongly written as 24.10.2006. This also creates some doubt because the complaint was not lodged immediately after taking the dead body and cremation of the dead body by PW-3. But after two days, he lodged the complaint. There was lot of time for him and therefore, there was no occasion to give any mistaken date. 32. It is further there in the evidence of PW-2 that on 31.10.2006. they had been to the Police Station. PW-3 had been to the Police Station on that day. No complaint was lodged. He has specifically stated that though on 31.10.2006 he discussed with the police, he had not expressed even any suspicion against the accused. Police on that day asked him whether he suspected anybody, but he never suspected the accused though he knew that the accused was grinding axe against the family members of the deceased and also he had ill-will and hatred against the accused. This also creates a doubt as to whether after due deliberation with the police and other witnesses, complaint has been lodged. If that were to be true, it is very difficult to believe the evidence of PW-2 with regard to the last seen factor. 33. PW-4 so far as this aspect is concerned, has not stated anything in her examination in chief with regard to either PW-2 Arun or PW-5 Shwetha disclosing to her with regard to the deceased leaving the house of PW-5 Shwetha on 25.10.2006 at 5.00 p.m., and that PW-2 had last seen the accused and the deceased together. Her statement is mainly concentrated on the motive factor. In the course of cross examination, it is stated that on 21.10.2006 itself, at about 6.30 p.m., they found the letters Ex.P8 and P10 written by the deceased, the same was readover to the entire family members by Anil kumar son of this witness. Therefore, they suspected that the deceased had left the house on 21.10.2006 with gold ornaments but in spite of that upto 2.11.2005, they did not lodge even a missing complaint. Therefore, they suspected that the deceased had left the house on 21.10.2006 with gold ornaments but in spite of that upto 2.11.2005, they did not lodge even a missing complaint. This also creates some doubt as to why the entire family members though came to know that Sumalatha left the house, they did not take any action. It is also stated by her that she did not ask Aruna about Sumaiatha though they came back at 6.30 p.m., and came to know about the above said letters. She has further stated that from the date the deceased left the house, she did not ask Aruna at any point of time about her daughter, but she states that PW-2 Aruna has stated about her daughter to the son of this witness by name Anand. But Anand has not disclosed the same to the family members. This also creates a serious doubt as to whether PW-2 had any knowledge about the accused and the deceased going together. If it is so, why he has not disclosed the same to the family members at the earliest point of time particularly on 31.10.2006 itself? The evidence of this witness is mainly concentrated on the recovery of some gold ornaments and identification by this witness, which we will refer little later. 34. Another important witness is Shwetha. She has stated in her examination in chief that, on 21.10.2006, the deceased came to her house and on 23.10.2006 she met PW-2 Aruna and on 25.10.2006, the deceased left the house of this witness saying that she was going to meet the accused Suresh who asked her to go near BDA complex to meet him. In this context, in the course of cross examination, she has admitted that on 31.10.2006 itself, she came to know about the death of the deceased Sumalatha and she also had been to the house of PWs.3 & 4 to attend the ceremony of the deceased Sumalatha. PW-2 Aruna was also there and in fact she consoled PWs.3 & 4 but she did not disclose anything about the deceased leaving her house on 25.10.2006 saying that she was proceeding to meet the accused. She also never stated anything about gold chain and gold ring given by Sumalatha to this witness with an instruction that those ornaments should be given back to her parents. She also never stated anything about gold chain and gold ring given by Sumalatha to this witness with an instruction that those ornaments should be given back to her parents. It is also not stated as to why knowingly fully well about all these facts, she did not tell anything to the family members of the deceased on 31.10.2006. She has further stated that on 23.10.2006 she went along with Sumalatha, the deceased to Paras Bankers and in fact pledged one gold ring and the deceased had taken the amount on pledging the ring. After the death of Sumalatha this witness has paid the amount and got that gold ring released and thereafter she handed over the same to PW-2. This also creates a considerable doubt, that at one breadth PW-2 and this witness say that Sumalatha had given one gold chain and one gold ring for the purpose of returning the same to her father as those ornaments were given to her by her father due to love and affection. But why PW-2 and this witness have pledged those ornaments in Paras Bankers which are recovered later from these witnesses. Therefore, something appears to be missing and there is no proper explanation as to why these witnesses have not disclosed the fact known to them to PW-2 and PW-4 at the earliest point of time. In the course of cross examination of this witness, it is also elicited that though on 23.10.2006, the brother of the deceased had telephoned to this lady asking about Sumalatha then also she did not say anything about Sumalatha though Sumalatha was in her house from 21.10.2006. Therefore, it appears whether these two witnesses are telling the truth and whole truth before the Court or they are suppressing something before the Court. PW-5 has further deposed that she has not disclosed even after coming to know about the death of the deceased from the police with regard to Sumalatha coming to her house and staying from 21.10.2006 to 25.10.2006 to the parents or the family members of the deceased but she gives an explanation, that she was afraid of informing the same to the police, but what is that apprehension is not explained by her. In fact she came to know about the death of Sumalatha but she did not disclose anything else though she was knowing so many factual aspects which are stated before the Court. Therefore, in our opinion, the evidence of this witness is also shaky, and not credible for acceptance. 35. On overall looking into the above said circumstances, particularly the evidence of PWs.2 to 5, as discussed above, a serious doubt arises whether these witnesses are telling complete truth before the Court. The conduct of the police in keeping the dead body for so many days upto 31.10.2006 and after collecting all the materials they got conducted the Post Mortem examination of the deceased also throws suspicion. 36. The above discussed evidence also discloses that though the parents had come to know about the entire facts on 31.10.2006 itself, but no complaint was lodged making any allegations against the accused upto 2.11.2006. The explanation offered is not acceptable, because it is elicited from the evidence that all the persons having telephone facility. At least PWs.3 & 4 would have intimated the police over phone about the incident and suspicion about the accused. Therefore, the contradiction elicited as per Ex.D-10, from the mouth of PW-2 in fact shakes the case of the prosecution, regarding its genesis as projected. 37. Looking to the above said circumstances, it also creates a serious doubt when the police detected the dead body why they kept quiet upto 31.10.2006, without getting Post Mortem done. Even after Post Mortem examination they would have waited for identification of the body. But they have not categorically stated as to why they did not do so. Further, added to that in the evidence of PW-4 Vijayakumari, she has stated that the accused was present in the Police Station on 2.11.2006 itself when she visited the Police Station along with her husband and she identified certain gold ornaments on that day. Therefore, in the above said facts and circumstances of the case, this sole circumstance of last seen in our opinion is not fully trustworthy for acceptance. The trial Court has not in detail meticulously discussed all the above said facts, but it has come to the conclusion on plain reading of the evidence of the witnesses that the prosecution has proved the last seen circumstance beyond reasonable doubt. The trial Court has not in detail meticulously discussed all the above said facts, but it has come to the conclusion on plain reading of the evidence of the witnesses that the prosecution has proved the last seen circumstance beyond reasonable doubt. However, we differ from the said opinion and for the above said reasons, we are of the opinion that it cannot be said that the prosecution has proved the circumstance of last seen theory beyond reasonable doubt. 38. Even assuming that the last seen theory is established, what is the legal consequence is enunciated by the Hon'ble Apex Court in the following rulings. The Hon'ble Apex Court in the decisions reported in: (1) (2012) 6 SCC 403 - Sahadevan and another v. State of Tamilnadu; & (2) (2014) 4 SCC 715 - Kanhaiya v. State of Rajasthan; Has observed that "the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more to establish the connectivity between the accused and the crime. Even non explanation on the part of the appellant by itself cannot lead to prove the guilt against the appellant. It is also observed even if the last seen theory is proved beyond reasonable doubt, if i.e., the only strong circumstance relied upon by the prosecution such circumstance may raise a serious suspicion, but it is not sufficient to lead to a finding of guilt." 39. In view of the above said decisions, the last seen theory even if it is considered as proved, it only creates a strong doubt in the case of the prosecution. But it is well recognised principle of Criminal jurisprudence that suspicion itself cannot take the place of proof, however strong it may be. Therefore, we are of the opinion that the doubtful circumstances with reference to the last seen together as referred to by us above, should be given to the benefit of the accused. Hence, in this way also, the accused is entitled for the benefit of doubt. 40. Recovery: The case of the prosecution in so far as this circumstance is concerned is that the accused was arrested on 5.11.2006 at about 5.00 a.m., in the early morning near Avalahalli, Bengaluru. Thereafter, he was brought to Srirangapatna Police Station. Hence, in this way also, the accused is entitled for the benefit of doubt. 40. Recovery: The case of the prosecution in so far as this circumstance is concerned is that the accused was arrested on 5.11.2006 at about 5.00 a.m., in the early morning near Avalahalli, Bengaluru. Thereafter, he was brought to Srirangapatna Police Station. The Investigating Officer secured the presence of the panch witnesses to the Police Station and recovered the gold ornaments MOs.5 to 7 at the instance of the accused in the presence of panch witnesses PWs.9 & 10 from the car of the accused under a Mahazar Ex.P15. and thereafter the said Material Objects were identified by the father and mother of the deceased as those gold ornaments which were taken by the deceased while leaving the house. 41. The prosecution has relied upon the evidence of the Investigating Officers and the panch witnesses PWs.9 & 10 in this regard. First, let me consider the evidence of the Investigating Officers so far as this aspect is concerned. 41.1 PW-12 Kantharaj, who was working as PSI at Srirangapatna Police Station has deposed that on 4.11.2006, the Investigating Officer ie., PW-13 T.D. Jayaram had deputed this witness and other police personnel for the purpose of apprehending the accused along with his car. On the same day, he had been to Bengaluru, and collected materials from his informants and went in search of the accused. It is further stated that on 5.11.2006, at about 5.00 a.m., in the morning, the accused was found proceeding in his Car near Avalahalli near Bengaluru. The police intercepted and enquired him and came to know the name of the accused. Immediately, PW-12 took him to his custody and brought him to the Srirangapatna Police Station and produced along with the car at 8.00 a.m., before PW-13, with his report as per Ex.P22. He identified the accused and the car before the Court. 41.2. In the examination in chief nothing is elicited to the effect that though he is the Police Sub-Inspector, competent to search and seize the articles from the custody of the accused, he did so. He also never stated that on the spot, whether he has conducted any Mahazar or he has intimated anybody with regard to the arrest of the accused. The same is conspicuously absent in his evidence. He also never stated that on the spot, whether he has conducted any Mahazar or he has intimated anybody with regard to the arrest of the accused. The same is conspicuously absent in his evidence. He never stated that as soon as he arrested and apprehended the accused, he intimated anybody with regard to the arrest of the accused on that spot. 41.3. During the course of cross examination, sofar as this aspect is concerned, PW-12 has admitted that at the time of apprehending the accused, he did not talk to the accused and he did not draw any proceeding with regard to the car and the accused. Therefore, it is clear that he has not searched the accused on the spot and not examined the car at the spot and simply he has stated that he has brought the accused and produced him before the Investigating Officer. Here itself, we would like to refer the documents and the procedure for arrest to be followed by the police, as we have referred to, it is conspicuously absent in the evidence of PW-12. Though the document is not marked before the trial Court, but the arrest memo at page 64 and 65 of the trial Court records discloses that there are blanks left in the said memo with reference to the address of the accused as well as the time of arrest and date is also mentioned as 00.11.2006. In both the documents, the time of arrest is kept blank and the signature of one Jayaram son of Kallegowda was taken. It is also admitted by PW-12 that he has submitted the report as per Ex.P22(a). Ex.P22(a) discloses that the police very much knew that the accused had been residing in a rented house and he used to go out from the house in the morning hours and his house is situated at Avalahalli in Bengaluru. It is also stated that, they took the custody of the accused and the Car on 5.11.2006 at 5.00 a.m., but in this document also nothing has been stated that any procedure has been followed with regard to the arrest. This document discloses that the police knew the house of the accused and his movements. 42. It is also stated that, they took the custody of the accused and the Car on 5.11.2006 at 5.00 a.m., but in this document also nothing has been stated that any procedure has been followed with regard to the arrest. This document discloses that the police knew the house of the accused and his movements. 42. New coming to the decisions cited by the learned counsel in this regard reported in ILR 1996 KAR 2 between Nagaraj and State of Karnataka, at paragraph 32, the Court has observed that - "In 1962 Mysore Law Journal 656 between Abbas Abdul Karim v. State of Mysor, it has been observed that where panchanama is not drawn either at the place of seizure or at the place where the accused is apprehended is a serious infirmity. In AIR 1988 SC 1883 between Kehar Singh and others v. State (Delhi Administration), similar law has been reiterated. In that case it was held that if the Police Officers had gone with prior information to arrest the absconding accused, they could have taken an independent witness with them and instead of searching him and performing the formalities of arrest at the place where the accused apprehended, he was taken to the office of the Electricity Board and there search and seizure took place and some articles were recovered from his possession. In those circumstances it was held that it was not appropriate to rely upon such recoveries. In the present case the police did have prior information as to the whereabouts of the accused. Therefore, it was not impossible for them to take witnesses with them when they arrested the accused at Kothanur near Hosur. If search had taker; then and there in the presence of mahazardars, it would have been safe to rely upon their statements supported by the mahazar. But, in this case the silver ear studs were seized on the next day in the Police Station. As to why search did net take place immediately on the arrest of the accused is not at all clear. But, in this case the silver ear studs were seized on the next day in the Police Station. As to why search did net take place immediately on the arrest of the accused is not at all clear. All that was stated is it was midnight and no witnesses were available." It is also observed that a personal search which has not taken place immediately on apprehension leads to grave doubt as to the recoveries effected on the person of the accused particularly when such recoveries are made quite some time thereafter that too in a Police Station. 43. Admittedly, in this case, PW-12 has not stated that they have taken any of the panch witness is along with them in order to apprehend the accused. In this background, the evidence of the Investigating Officer PW-13 plays an important role. 44. PW-13 T.D. Jayaramu has stated that while he was working as CPI, during that time, he took over the investigation on 4.11.2006 from PW-12. It is stated that on 5.11.2006, PSI - Kantharaju PW12 produced the accused before this witness along with his report. He took the accused to is custody and recorded his statement. Thereafter, he secured the presence of the panch witnesses by names Shashimallegowda (PW-10) and Venkatesh and in their presence, from the dickey of the car of the accused, the accused produced one shining cloth, one purse containing one long gold chain, one necklace and two gold bangles. He seized the said car and gold ornaments. The said ornaments are marked at MOs.5 to 7. He has sealed the said ornaments in the presence of the panch witnesses. It is further stated by him that thereafter, he secured the presence of PWs.3 & 4 (father and mother of the deceased) and they identified the said gold ornaments as that of their daughter Sumalatha, who had taken them at the time of leaving the house. It is also stated by this witness that he drew the Mahazar in the presence of the panch witnesses as per Ex.P-15. This witness has also stated that the accused showed the place where the offence was committed and there also in the presence of the panch witness, he drew Mahazar as per Ex.P-17. He has also deposed that ha conducted Mahazar where the dead body was thrown as per Ex.P-16. This witness has also stated that the accused showed the place where the offence was committed and there also in the presence of the panch witness, he drew Mahazar as per Ex.P-17. He has also deposed that ha conducted Mahazar where the dead body was thrown as per Ex.P-16. There is absolutely no recovery or seizure from the said places. Therefore, the said Mahazars are not significant for consideration. 45. In the course of cross examination sofar as recovery of incriminating articles such as MOs.5 to 7 is concerned it was suggested that the accused has not given any voluntary statement before this witness and he has not recovered any items MOs.5 to 7 under Ex.P-15. This witness has also not stated that as soon the accused was produced, he secured the panch witnesses and conducted Mahazar. Though it is stated by PW-12 that the accused was produced at 8.00 a.m., itself but the Mahazar Ex.P-15 shows that till 10.30 a.m., no proceedings had been conducted and only at 10.30 a.m., after securing the panch witnesses the Mahazar appears to have been drawn with reference to the recovery of the above said gold ornaments. In this background, the evidence of the other witnesses also plays some role whether the Court can rely upon the evidence of the Investigating officers solely regarding search and seizure. 46. As already referred to, the arrest intimation was given to one Jayaramu son of Kallegowda. The said witness is also examined as PW-9 before this Court. According to the prosecution as soon the accused was arrested, the intimation was given to this witness PW-9. But, PW-9 has turned hostile. He never stated that any information had been given to him with regard to the arrest of the accused. Further, there is no suggestion to this witness that as soon, the accused was arrested, the information was given to this witness. Neither by PW-12 nor PW-13 has stated about this fact. PW-12 has also not stated that this Jayaramu son of Kallegowda PW-9 was taken along with them at the time of apprehending the accused. Therefore, the very arrest and complying with the legal requirement is doubtful. 47. Another important witness for this Mahazar Ex.P-15 is PW-10 Malleshgowda. He has deposed before the Court that after he coming to know about the death of Sumalatha, he had been to the house of PW-3 Hanumegowda. Therefore, the very arrest and complying with the legal requirement is doubtful. 47. Another important witness for this Mahazar Ex.P-15 is PW-10 Malleshgowda. He has deposed before the Court that after he coming to know about the death of Sumalatha, he had been to the house of PW-3 Hanumegowda. Four days later, he was called to the Srirangapatna Police Station over phone on the information that the accused had been caught by the police. He went to the Police Station and the police showed the accused and also the car parked in front of the Police Station. The accused was also present and he removed a red towel from the car dickey and one purse. The said purse contained one gold necklace, one gold long chain and one pair of gold bangles. The police seized the said articles and drew up a mahazar as per Ex.P15 and this witness also signed the Mahazar. On plain reading of the evidence of this witness, it is clear that he claims to be present at the time of the said Mahazar. Admittedly, this witness is resident of Bengaluru, and he is a social worker according to him and he knew PW3 and his family members. The Mahazar Ex.P15 was so drawn at Srirangapatna Police Station between 10.30 a.m. and 12.00 noon. In the course of cross examination, he has admitted that on 2.11.2006 when Hanumegowda lodged the complaint, he also visited the Police Station and even on 31.10.2006 itself he had received the information from one Rajanna about the death of deceased Sumalatha and he visited Srirangapatna Police Station and gave his phone number to the police and on that basis, the police telephoned to this witness and secured him as a witness. He further admits that on 31.10.2006 and on 2.11.2006, the police did not call him but he voluntarily went to the Police Station on the ground that he is close friend of PW-3 Hanumegowda. 48. PW.10 in fact very interestingly says that the police had telephoned to him and secured his presence at the police station. Apart from that he has also stated that, on 31.10.2006, PW-3 Hanumegowda went to police station at 9.0 p.m. and this witness was also present along with Hanumegowda when the letters Ex.P-8 & P-10 written by the deceased were given to the police. Apart from that he has also stated that, on 31.10.2006, PW-3 Hanumegowda went to police station at 9.0 p.m. and this witness was also present along with Hanumegowda when the letters Ex.P-8 & P-10 written by the deceased were given to the police. It is further stated by him that on 02.11.2006 also he had been to police station along with Hanumegowda for the purpose of lodging complaint. He further doubtfully says that on 02.11.2006 itself whether the accused was present in the police station or not, he did not specifically verify. Very peculiarly he further states that at the time of cremation of the dead body, the accused and his mother were also present. This also creates a serious doubt as to whether the accused could attend the cremation of the deceased if he had really committed the murder of the deceased. 49. The above said evidence of PW.10 discloses that through out right from 31.10.2006 on various occasions he attended the police station in connection with this particular case and it is clear from his evidence that he is a close associate of PW.3-Hanumegowda. Therefore, it is very difficult to digest as to why the police have selected such a witness as a witness to the Panchnama-Ex.P15. This has not been properly explained by the Investigating Officer. Of course there is no bar to select anybody as a witness. But, the Investigating Officer knew very much that this witness had attended the police station on various occasions in connection with this case. Though the other witnesses names are also disclosed from the mahazar-Ex.P15, no other witnesses have been examined in this case by the prosecution, for the reasons best known to them but only examined this witness, who is shown to be an interested witness in connection with this case. The charge sheet witnesses by name Venkatesh, son of K.P. Krishna Murthy who signed this mahazar belonged to Srirangapatna. That person was not secured and examined before the Court. Therefore, it creates a serious doubt with regard to recovery at the instance of the accused. In view of the above said infirmities as soon the accused was arrested nothing has been done by the police. In this background, the evidence of PW.3 and 4 with regard to identification of these articles in the police station also, clinches the issue. 50. In view of the above said infirmities as soon the accused was arrested nothing has been done by the police. In this background, the evidence of PW.3 and 4 with regard to identification of these articles in the police station also, clinches the issue. 50. PW.3 sofar as this aspect is concerned has stated that on 02.11.2006, he had been to the police station and at that time, his wife was not with him, but his wife attended the police station on 31.10 2006. He further stated that on 05.11.2006 he went to the police station along with his wife and identified the gold articles which were taken by his daughter at the time of leaving the house. He also admitted that PW.10-Mallegowda is his very close associate right from his childhood and he took the said person to the police station even at the time of lodging complaint and Mallegowda signed various papers in the police station. On 02.11.2006 also P-10-Mallegowda had been to the police station. He has stated further that the gold articles were shown to him on 05.11.2006. it is suggested to this witness that the said articles were brought by this witness from his house in order to fix the accused to the crime. Whether this suggestion has any bearing has to be tested from the evidence of PW.4, the wife of PW.3. 51. PW.4-Smt. Vijaya Kumari, W/o PW-3 Hanumegowda has not stated anything with regard to the identification of the gold articles by her. She never stated that she went to police station on 05/11.2006 and identified the gold ornaments in her examination chief. But, in the course of cross examination, she has admitted that on 02.11.2006 itself, she had been to Srirangapatna police station. Again she says that she did not go to the police station and the police themselves had come to her house. She has further stated that the police have shown the gold articles i.e., two gold bangles, one chain and one necklace when she had been to the police station on 02.11.2006. She had seen those items in the police station on 02.11.2006 itself and she very specifically says that on that day, the accused was very much present in the police station and on 02.11.2006 itself, the police took those items to their custody. She never stated anything about she going to the police station on 05.11.2006. She had seen those items in the police station on 02.11.2006 itself and she very specifically says that on that day, the accused was very much present in the police station and on 02.11.2006 itself, the police took those items to their custody. She never stated anything about she going to the police station on 05.11.2006. In order to clarify this ambiguity in the evidence of this witness, the prosecution has not made any efforts to re-examine this witness or further examine this witness sofar as this aspect is concerned. As we have already referred to the evidence of PW.10, he also doubtfully says about the presence of the accused in the police station on 02.11.2006. This doubtful circumstance has not beer, clarified with regard to the recovery of the articles. In view of the above said infirmities we are of the opinion that the prosecution has also not proved beyond reasonable doubt the recovery of MOs. 5 to 7 at the instance of the accused. 52. Though it is not so relevant, the recovery of other articles that is one gold chain and a ring (M.Os. 5 to 7) from PW.2 which allegedly belonged to the deceased also may be examined. According to the prosecution, when deceased Sumalatha had been to the house of PW.5, she had handed over one gold chain and one gold ring to this witness, telling that he would take back those articles later. It is further stated by her that after two months PW.5-Swetha had handed over this gold chain and ring to PW.2-Aruna to return the same to the parents of the deceased. But in the course of cross examination, she has admitted that this witness and deceased had been to one Paras Bankers and pledged one gold ring with them for a sum of Rs.2,500/- and the said amount was taken by deceased Sumalatha. Thereafter this witness paid the amount and got released the said gold ring, What interest this witness has got to get that gold ring released though she has not received the amount is a mystery not explained by the prosecution. 53. PW.2 so far as these items are concerned, has stated that Swetha-PW.5 had given the gold chain and gold ring to this witness telling that the same had to be returned to the parents of the deceased. 53. PW.2 so far as these items are concerned, has stated that Swetha-PW.5 had given the gold chain and gold ring to this witness telling that the same had to be returned to the parents of the deceased. But he did not return them and did not even state about these facts at any time before PW.3 or PW.4, till these items were recovered from the police at the instance of PW.2. This witness in the course of cross examination has admitted that he has in fact attended the cremation ceremony of the deceased, but, at that time also he never stated about these gold articles. In the course of cross examination, he further admitted that on 07.12.2006 he had pledged the gold chain with Mahalakshmi Enterprises Pawn Brokers and he went to that shop along with one Naveen and he took Rs.750/- by pledging the said gold articles and on 17.01.2007 he got released said chain. At that time, the police by name Rangegowda and Rajashekar Murthy were present. Thereafter it appears the gold chain and gold ring were alleged to have been recovered from this witness. He has further deposed that he actually pledged those articles and got them released and went along with PW.3 to Srirangapatna Police Station to hand over them to the police, 54. The above said circumstances, though not relevant with reference to the recovery of the articles from the accused, nevertheless it creates doubt with regard to the conduct of the witnesses. When this witness has pledged these articles and thereafter released them. What was the reason, has not been stated. Further, he never disclosed the fact of Sumalatha giving these two items either to Shwetha PW-5 or to PW.2 at any point, before PWs. 3 & 4 though they had lot of occasions to meet PW.3 Hanumegowda, the father of Sumalatha. Therefore, we are of the opinion that the conduct of these witnesses is also not so adorable to believe them to hold that the above said circumstances are beyond reasonable doubt proved by the prosecution. 55. Summing up the entire case of the prosecution as discussed by us above, there is delay in lodging the complaint though some effort has been made to explain delay, but we have observed that the same is not acceptable. 55. Summing up the entire case of the prosecution as discussed by us above, there is delay in lodging the complaint though some effort has been made to explain delay, but we have observed that the same is not acceptable. It was well within the knowledge of PW-3 and his son with regard to the complicity of the accused in the crime on 31.10.2006 itself. But, they have not lodged the complaint on that day or on the next day. It is also evident that after due deliberation and discussion with his friends and the police, complaint has been lodged. Therefore, the very genesis of the prosecution case is doubtful. 56. The motive as we have in detail discussed, is very feeble in this case. The motive factor also is a ground for which PW-3, the father of the deceased might have filed the complaint implicating the accused with an intention to wreak his vengeance against the accused and that probability also cannot be ruled out. Therefore, the motive factor is very weak in this case. Recovery of the material objects such as MOs.5 to 7 as we have discussed above is also doubtful as the presence of the accused at the time of cremation of the dead body of Sumalatha is evident and on that day also, PW-2 who is the witness to the last seen and for other circumstances and Shwetha PW-5 present at the time of cremation have not pointed out the complicity of the accused to PWs.3 or 4. And further, they have not giver, any explanation with reference to the pledging of the gold ornaments given to them by Sumalatha, particularly the gold chain and gold ring. This also creates a suspicion in the conduct of PWs.2 & 5. Therefore, the motive factor is also not established beyond reasonable doubt as we have observed. 57. Lastly, the last seen together is also a doubtful circumstance in view of the discrepancies in the evidence of PW-2 coupled with the evidence of other witnesses particularly PW-3, the father of the deceased, Though the prosecution has placed some materials in order to prove the above said circumstance, but the above said circumstance only creates a strong suspicion against the accused. But the law recognised by this country shows that any amount of suspicion and however strong it may be is not sufficient to take the place of proof. But the law recognised by this country shows that any amount of suspicion and however strong it may be is not sufficient to take the place of proof. Therefore, for all the above said reasons giving benefit of doubt, the accused is entitled to be acquitted. The trial Court in fact has not meticulously gone into the evidence of the witnesses in depth in order to consider the above said lacunae and discrepancies in the case of prosecution. The accused was arrested on 5.11 2006 and since then, he has been in custody. Hence, for all the above said reasons, we proceed to pass the following: ORDER The appeal is allowed. The judgment of conviction and sentence passed by the trial Court in SC No. 48/2007 dated 9.2.2012 is hereby set aside. Consequently, the accused is acquitted of the charges levelled against him for the offences punishable under sections 302 and 201 of IPC. The accused shall be released forthwith if he is not required in any other case. Registry is hereby directed to communicate the operative portion of this order to the concerned jail authorities forthwith to enable them to release the accused. If any fine amount is deposited by the accused, the same is ordered to be refunded.