JUDGMENT : B.S. Patil, J. 1. This appeal is filed by the accused in S.C. No. 55/2013 challenging his conviction vide judgement dated 26.03.2014 passed by the learned Addl. District & Sessions Judge, Gadag, for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months. 2. Briefly stated, facts involved in the case are that, accused/appellant-Ningappa and deceased Rekha were husband and wife, their marriage took place about 7-8 years prior to the date of incident. Rekha had become pregnant. Accused suspected her fidelity and used to abuse her alleging that she had become pregnant to somebody else. He was suspecting her character and was ill-treating her. On 05.06.2013 at about 4.30 AM in the house belonging to the accused situated at Havalappanavar street at Ron, Gadag District, accused assaulted Rekha with a stone on her left ear/temporal portion. As a result, Rekha sustained grievous injuries. She was shifted to hospital where she died on 06.06.2013 at 6.30 PM due to the injuries suffered. A complaint was lodged on 05.06.2013 by the mother of deceased-Rekha, by name Shantavva wife of Yallappa Kittali. In fact, the complaint is in the form of the statement recorded by the A.S.I-S.L. Ganiger of Ron Police at Shakuntala Hospital, Hubballi. Based on the complaint a case was initially registered in Crime No. 68/2013 for the offence punishable u/S 307 of IPC. Investigation was conducted initially by the Police Sub-Inspector and thereafter by the Circle Inspector of Police who laid the charge sheet against the accused for the offence punishable u/S 302 of IPC. 3. The learned Sessions Judge proceeded to frame charge against the accused for the offence punishable u/S 302 of IPC. During the course of trial the prosecution examined 21 witnesses as P.W.1 to P.W.21 and marked Exs.P.1 to 36, M.O.1 to 3 were produced and marked. Learned Sessions Judge framed the following points for consideration. 3. The learned Sessions Judge proceeded to frame charge against the accused for the offence punishable u/S 302 of IPC. During the course of trial the prosecution examined 21 witnesses as P.W.1 to P.W.21 and marked Exs.P.1 to 36, M.O.1 to 3 were produced and marked. Learned Sessions Judge framed the following points for consideration. (1) “Whether the prosecution proves that on 05.06.2013 at about 4.30 AM in his house at Havalappanavar street, Ron, with an intention to murder his wife Rekha suspecting the character of the Rekha as she become pregnant to others and the said accused assaulted Rekha with stone on her left ear and head and murdered Rekha, beyond all reasonable doubts? (2) What order?” 4. On appreciation of evidence on record the learned Sessions Judge has recorded a finding that prosecution was able to successfully establish beyond reasonable doubt the guilt of accused and therefore convicted him and sentenced him to undergo rigorous imprisonment for life for the aforesaid offence. 5. It is necessary, at this stage, to notice that, although all the prosecution witnesses examined to prove circumstantial evidence, speaking to various circumstances, had turned hostile. The trial Court has persuaded itself to record that guilt of the accused was proved by making an inference that accused had failed to give any explanation regarding cause for the death of his wife-Rekha, which occurred in his own house. 6. The learned Sessions Judge has proceeded on the basis that when the accused had denied his role in the death of Rekha, question would arise as to ‘who had murdered wife of the accused during the early house on 05.06.2013 when the accused and deceased were residing together in the four walls under the same roof?’. This process of reasoning is adopted by the learned Sessions Judge as all the prosecution witnesses accepting the investigating officers and other official witnesses including the mother of the deceased-P.W.1 and father of the deceased-P.W.6, had given go-bye to their version and had turned hostile. The panch witnesses to the spot panchanama, inquest panchanama and also recovery panchanama have also turned hostile. 7. The panch witnesses to the spot panchanama, inquest panchanama and also recovery panchanama have also turned hostile. 7. It is in this background learned counsel Sri K.L. Patil, appearing for the accused/ appellant vehemently urges by taking us through the entire evidence on record that the prosecution miserably failed to establish the guilt of the accused: the learned trial Judge committed serious error and illegality in convicting the accused on the basis of such feeble and unsubstantiated evidence by drawing unwarranted and impermissible inference about the guilt of the accused. He points out, during the course of his arguments that PW1-Shantavva, mother of the deceased has in her evidence not supported the allegation made in the complaint and has specifically stated that she was not aware how the injuries were caused to her daughter Rekha and that accused never suspected her daughter’s character. She also emphatically stated in the evidence that she did not know who was responsible for the death of her daughter. Though this witness even goes to the extent of stating that she had not even lodged complaint before the Police, fact remains that, in her evidence both in the chief examination and in the cross-examination, nothing is forthcoming to substantiate the allegations made in the complaint-Ex.P.31 as well as her further statement which has been marked as Ex.P.1, regarding involvement of the accused. 8. Similarly, P.W.6-Yallappa son of Tippanna Kittali who is none other than father of deceased Rekha, does not support the case of the prosecution. He states emphatically that he did not know for what reason his daughter had sustained injuries and at no point of time accused had suspected the character of the deceased. He also states that he did not know who was responsible for the death of his daughter. Though he was confronted with the statements at Exs.P.6 and P.7 given before the Police he has denied the said statements. 9. P.W.7-Sangappa is the younger brother of the accused and brother in law of the deceased. Indeed, as per the complaint it is P.W.7 who took her to the hospital at Gadag and later on to Shakuntala Nursing Home at Hubballi. In his evidence he pleads that he had no knowledge about the alleged pregnancy of deceased Rekha. 9. P.W.7-Sangappa is the younger brother of the accused and brother in law of the deceased. Indeed, as per the complaint it is P.W.7 who took her to the hospital at Gadag and later on to Shakuntala Nursing Home at Hubballi. In his evidence he pleads that he had no knowledge about the alleged pregnancy of deceased Rekha. He asserts that his sister-in-law Rekha died on account of fall from the roof of the house and that accused did not commit her murder. He has given go by to the statement before the Police as per Exs.P8 and P9. 10. PW-8, Hanmantappa L. Lingasheth, is alleged to have witnessed the incident. Being a neighbor, he claims to have heard Rekha’s screaming whereupon, he rushed to the house of the deceased and found that accused holding blood stained stone in his hand, whereas deceased had fallen on the ground with bleeding injury. This is a statement given by Hanmantappa before the Police. But during the course of his evidence before the Court, he has given go by to the statement before the Police as per Exs.P10 and P11. 11. P.W.10-Veerabhadrayya, is said to be an eyewitness, who has also allegedly stated before the Police that being a neighbour, he had rushed to the house of the accused on hearing screaming of the deceased. He has also given a go by to the statement before the Police as per Exs.P.14 and P.15. 12. P.W.14-Yallappagouda B.Ranganagoudar, P.W.15-Basavanagouda N. Linganagoudra and P.W.16-Chandrappa N Adi are also said to be neighbours, who claimed that they had rushed to the spot after hearing Rekha’s scream. They have also given go by to their statement before the Police. Nothing is elicited in the cross-examination of these witnesses to suggest the fact that accused was in the house on the fateful day staying along with the deceased and that they had seen them prior to the incident or immediately after the incident. At this stage itself it is necessary to note that P.W.9–Shivayya S. Angadi, who is the owner of TATA Sumo in which injured Rekha was allegedly taken to the Hospital in his TATA Sumo to Hubballi, states that Rekha had suffered head injury, but he resiles from his statement that he had stated before the Police regarding the injury and the said injury had been caused by the accused. Therefore, his evidence is also of no use to support the case of the prosecution. He has given a go by to the statement made before the Police as per Exs.P.12 and P.13. 13. Similarly another witness P.W.11-Mallappa B. Kitti, who is the relative of P.W.1-complainant has not stated anything against the accused and indeed his statement is in the nature of hearsay evidence. 14. Coming to the evidence of the Doctor – P.W.17 by name Y.B. Dambal of Shakuntala Memorial Hospital, he has stated in his evidence that on 05.06.2013, Rekha was admitted in Shakuntala Hospital with a history of head injury and had suffered multiple fracture over head and fracture of left parietal bone and also fracture of bilateral temporal bone. The medical record of Shakuntala Memorial Hospital and Research Center has been marked as Ex.P.26 along with patient’s case sheet. By taking the Court through the case records and the report of the laboratory, wherein blood group of the deceased was checked for the purpose of transfusing blood, it is pointed out by him that blood group of deceased Rekha is ‘O+ve’ which was evident from the laboratory record as per Ex.P.26. At this stage itself he invites our attention to Ex.P.36–FSL report, wherein blood stains found on M.Os.1 to 3 namely the stone allegedly used to kill Rekha, the bed spread (koudhi) and shirt, which allegedly contained blood stains of Rekha, clearly showed that these three items were stained with 'B’ blood group. Therefore, he urges that entire theory put-forth by the prosecution that accused killed Rekha with the grinding stone-M.O.1 and the role of the accused in the incident based on the bloodstains found on the shirt worn by the accused on the said date did not match with the O+ve blood group. It is his further contention that in the absence of any evidence to show that accused and the deceased stayed together on the fateful day in the house, there was absolutely no room for drawing an inference that it was the accused who killed Rekha and that burden was on him to explain the circumstance leading to the death of Rekha. 15. Learned Additional Public Prosecutor Shri V.M. Banakar has supported the judgment under challenge. It is his submission that merely because eyewitnesses turned hostile, it could not be said that guilt of the accused was not proved. 15. Learned Additional Public Prosecutor Shri V.M. Banakar has supported the judgment under challenge. It is his submission that merely because eyewitnesses turned hostile, it could not be said that guilt of the accused was not proved. He urges that recovery made and the nature of incident viewed in the background of the fact that deceased and the accused were husband and wife staying under the same roof coupled with the motive alleged to the effect that accused was suspecting the fidelity of his wife Rekha, the inference drawn by the learned Sessions Judge was unexceptionable particularly in the light of Section 106 of the Indian Evidence Act, 1872. 16. Having carefully considered the respective contentions and on examination of the entire evidence on record, the point that arises for our consideration is: “Whether the judgment and order passed by the learned Sessions Judge convicting the appellant/accused for the offence under Section 302 of IPC suffers from any illegality or perversity warranting interference by this Court in exercise of the appellate jurisdiction?” 17. We have indeed dealt with in detail, the evidence of the witnesses, who have been examined by the prosecution before the Court below, while appreciating the contention of Shri K.L. Patil. What emerges from the same is that none of the witnesses including the mother and father of deceased-Rekha have supported the case of the prosecution. They have turned hostile. It is true that merely because the prosecution witness turns hostile, it doesn’t mean that the accused who is otherwise guilty of the offence would go scot-free. But, in order to convict the accused for the offence under Section 302 of IPC or for that matter for any offence, prosecution has to place such evidence that would prove the guilt of the accused beyond reasonable doubt. 18. In the instant case, complainant – PW1, who is none other than the mother of the deceased has given a go by to her version in the complaint and also the further statement given by her as per Ex.P.31. Nothing is placed on record by the prosecution to establish the fact that accused suspected the fidelity of the deceased and that she had become pregnant after about seven to eight years of married life and that he had entertained suspicion that she had illicit relationship with somebody else. Nothing is placed on record by the prosecution to establish the fact that accused suspected the fidelity of the deceased and that she had become pregnant after about seven to eight years of married life and that he had entertained suspicion that she had illicit relationship with somebody else. Indeed this is the strong motive pleaded by the prosecution for the murder of Rekha. 19. Father of deceased - Yallappa T. Kitti – P.W.6 has also not lent any support to the version in the complaint regarding the pregnancy of the deceased and the alleged suspicion entertained by the accused regarding her extra marital relationship. Except the evidence of Doctor-P.W.17, P.W.19-Shiddappa L. Ganager, PSI, Ron, P.W.20-M.N. Hattikatagi, PSI, Ron and P.W.21-M.S.Naikar, CPI, Ron, who were the Investigating Officers, no other witnesses have supported the case of the Prosecution. 20. Indeed P.W.18-Y.F.Biranur, who is the Assistant Engineer of PWD, Ron, and who drew the sketch regarding the scene of offence as per Ex.P.30 and PW-12 Shankarlinga S Mavinakai, the police constable who carried the FIR are the only witnesses who have supported the case of the prosecution. But, their evidence with regard to the material aspect regarding the incident and the involvement of the accused has no bearing. Conviction of the accused for murder of Rekha cannot be based on their evidence as their version has no connection or bearing with regard to the said material aspect of the matter. 21. PW-17, Dr. Yallappa of Shakuntala Memorial Hospital has stated in his evidence that injuries sustained by Rekha could be caused due to fall from a high elevated place. The doctor has stated in the cross-examination that if a person falls down on the ground from a height, there was chance of multiple fractures to the head and possibility of death of the person. Indeed, as rightly pointed out by Shri K.L. Patil, even the medical records marked at Ex.P.26 which contained not only the case sheet but also the laboratory reports disclosed that blood group of deceased Rekha was O+ve but, the blood stains found on M.Os.1, 2 and 3 as per FSL report Ex.P.36 disclosed that it contained blood group ‘B’. Indeed, as rightly pointed out by Shri K.L. Patil, even the medical records marked at Ex.P.26 which contained not only the case sheet but also the laboratory reports disclosed that blood group of deceased Rekha was O+ve but, the blood stains found on M.Os.1, 2 and 3 as per FSL report Ex.P.36 disclosed that it contained blood group ‘B’. It is therefore clear that, even to draw an inference, though in a general way, regarding the incident and the way it has been projected to have happened as per the version of the prosecution, the medical record do not lend any support. Therefore, the prosecution has failed, in the facts of the instant case, to drive home the guilt of the accused and his involvement in the offence. 22. The inference drawn by the learned trial Judge is wholly unwarranted. Unless it was established that deceased and the accused were last seen staying together in the same house or that immediately after the incident, the accused was seen in the house or was seen moving out of the house, it cannot be said that strong circumstantial evidence was established or that burden was on the accused to explain the cause for the death of Rekha. Therefore, conviction based on such inference cannot be sustained. 23. Section 106 of the Indian Evidence Act on which the learned Additional Public Prosecutor has based his argument to support conviction of the appellant is of no help. Section 106 deals with a situation when any fact is especially within the knowledge of any person, then burden of proving that fact would be upon him. Unless it is established that accused was found staying along with the deceased in the house on the date and at the time when the incident was alleged to have taken place, question of placing burden upon the accused stating that it was for him to explain the fact because it was within his knowledge as to how Rekha sustained injuries and died, would not arise. Therefore, provision contained in Section 106 of the Indian Evidence Act cannot be pressed into service in the present case. 24. Therefore, provision contained in Section 106 of the Indian Evidence Act cannot be pressed into service in the present case. 24. The theory put-forward by the prosecution, having regard to the evidence on record, particularly because father and mother of the deceased did not in any manner support the case of the prosecution would not inspire confidence of the Court and could not have persuaded the trial Court to make such inferences with regard to the heinous offence alleged. Hence, in the light of the above our answer to the point raised is in the affirmative. We are of the view that prosecution has failed to establish the offence alleged against the accused beyond reasonable doubt. Accordingly, the appeal is allowed. The judgment and order dated 26.03.2014 in S.C. No. 55/2013 passed by the Additional District and Sessions Judge, Gadag, is set aside. Appellant is acquitted of the offence charged against him. The concerned prison authorities are hereby directed to set him at liberty forthwith, if, he is not required in any other case. Operative portion of this order shall be communicated to the concerned jail authorities by the registry, for due compliance.