JUDGMENT : Appellants challenge the order of conviction and sentence dated 17th February 2012 passed by the Fast Track Court, Hunsur, in S.C. No.24/2011. The appellants in Crl.A.No.378/2012, Crl.A.No.434/2012 and Crl.A.No.791/2012 are accused No.2, 3 and 1 respectively in S.C.No.24/2011 before the trial court. They will be referred to hereafter with their ranks before the trial court. 2. By the impugned order, the Trial Court has convicted the appellants / accused for the offence punishable under Section 302 read with Section 34 of I.P.C. and sentenced them to imprisonment for life and fine of Rs.25,000/- each and in default of payment of fine to undergo further simple imprisonment for one year. 3. Hunsur Rural Police charge-sheeted the accused for the offence punishable under Section 302 read with Section 34 of I.P.C. on the basis of the complaint of P.W.1 Mahadeva S/o late Ramarao. Initially the said complaint was filed against unknown persons. It was alleged in the complaint that complainant’s brother Rajarao left the house on 24.06.2010 at 6.30. p.m. on his Honda bike for collection of some debts due and did not return home and is found dead due to homicidal injuries on Hunsur Gonikoppa Road, Kalabetta junction and some body has committed his murder. 4. On the basis of such complaint, investigation was conducted and the accused were charge-sheeted as aforesaid in CC No.283/2010 before the Senior Civil Judge and J.M.F.C., Hunsur. The Magistrate took cognizance of the offence and committed the case for trial to the Sessions Court. The matter was assigned to Fast Track Court, Hunsur and registered in S.C. No.24/2011. 5. The Trial Court on hearing the accused framed the charges against them for the offence punishable under Section 302 of I.P.C. read with Section 34 of I.P.C and recorded their plea on the charges. The accused denied the charges and claimed trial therefore trial is conducted. In support of the case of the prosecution P.W.1 to P.W.35 are examined and Ex.P.1 to Ex.P.36, M.O.1 to M.O.20 are marked. The Trial Court examined accused under Section 313 Cr.P.C. with reference to incriminating evidence. The accused have not led any defence evidence. The Trial Court after hearing held that the charge brought against the accused is proved and convicted them. 6. The Trial Court examined accused under Section 313 Cr.P.C. with reference to incriminating evidence. The accused have not led any defence evidence. The Trial Court after hearing held that the charge brought against the accused is proved and convicted them. 6. Learned counsel appearing for the accused seeks to assail the impugned order of conviction and sentence on the following grounds: a. There are no eyewitnesses to the incident and the case is based on the circumstantial evidence; b. Circumstances of motive, recovery of incriminating materials are not proved by acceptable evidence; c. The Trial Court indicted the accused on the basis of the alleged recovery of the cell phone and the diary of the deceased and other cell phones from accused Nos.1 and 2, and alleged call details, but the Trial Court failed to note that the Investigating Officer has not collected any material to show that those cell phones belonged to the accused and the deceased; d. The Trial Court failed to note that in a case based on the circumstantial evidence unless all the circumstances are satisfactorily proved the accused cannot be convicted; 7. Learned HCGP seeks to justify the impugned order on the following grounds: i. There is material to show that accused No.1 and deceased were last seen together; ii. There is recovery of the belongings of the deceased from accused Nos.1 and 2 on the basis of their voluntary statements; iii. There is recovery of other incriminating material at the instance of accused No.1 to 3; iv. There is evidence to show that there was illicit relationship between the accused Nos.1 and 3 and the offence has taken place in that background; v. Witnesses corroborated each other in respect of each circumstance; vi. The impugned order is based on the sound analysation of the evidence; 8. Having regard to the rival contentions, the question that arises for consideration is: “Whether the impugned order of conviction and sentence is sustainable in law?” 9. The case of the prosecution in brief is as follows: Victim Rajarao and the 3rd accused are the husband and wife. The 1st accused was working in the farm establishment of Rajarao. Rajarao had illicit relationship with P.W.13 Nagamani. Whenever accused No.3 questioned the same, he used to ill-treat her. Rajarao had lent loan of Rs.30,000/- to the 1st accused. In course of time accused No.3 developed illicit relationship with accused No.1. The 1st accused was working in the farm establishment of Rajarao. Rajarao had illicit relationship with P.W.13 Nagamani. Whenever accused No.3 questioned the same, he used to ill-treat her. Rajarao had lent loan of Rs.30,000/- to the 1st accused. In course of time accused No.3 developed illicit relationship with accused No.1. The said fact came to the notice of Rajarao. Accused No.3 was apprehending that Rajarao may kill her and if he is eliminated, herself and accused No.1 can live happily. Therefore, she instigated accused No.1 to commit murder of Rajarao. Even before 25.06.2010 at her instance, accused No.1 engaged P.W.11 and 12 and one Vasu to commit murder of Rajarao but they declined to kill him. Again on 24.06.2010 accused No.3 instigated accused No.1 to kill Rajarao. Accused No.1 hatched plan with accused No.2 to commit murder of Rajarao. Accused No.1 called Rajarao on his cell-phone to come to Hunsur to collect the amount due to him. When Rajarao met accused No.1 at Hunsur, accused No.1 took him to Kalabetta the scene of occurrence under the guise of delivering cash. There, accused Nos.1 and 2 assaulted Rajarao with M.O.4-the iron piece and M.O.15 the stone. Then accused No.1 took the mobile phone and diary of Rajarao. He handed over mobile phone to 2nd accused and retained diary with himself. When Rajarao did not return home, P.W.1 his elder brother tried to search him and learnt that a dead body is found in Kalabetta and went there and found the dead body of the Rajarao. By that time, Hunsur Rural Police had also reached the spot. P.W.1 gave written complaint to P.W.32, the P.S.I of Hunsur Rural Police Station. He forwarded the complaint to the Police Station through P.W.33 Mallaiah, the Head Constable of Hunsur Rural Police Station. P.W.33 carried the complaint to the Police Station and registered the case. Thereafter P.W.30 took over the investigation, conducted spot mahazar and seized the weapon of offence, blood stained mud and motor cycle from the scene of occurrence. On the basis of the call details of the deceased and the accused No.1, P.W.30 interrogated accused No.1 and found involvement of accused Nos. 1 to 3 in the crime. On the basis of voluntary statements of accused Nos.1 to 3, P.W.30 recovered/seized cell phones of accused and the deceased and the diary of the deceased. He recorded the statements of the witnesses. 1 to 3 in the crime. On the basis of voluntary statements of accused Nos.1 to 3, P.W.30 recovered/seized cell phones of accused and the deceased and the diary of the deceased. He recorded the statements of the witnesses. Investigation revealed that accused Nos.1 to 3 conspired to murder Rajarao and secured him to Kalabetta and committed his murder. 10. The relationship between accused Nos. 3, deceased, P.W.1 & P.W.16 is not disputed. It is also not seriously disputed that the Rajarao died due to homicidal injuries. P.W.32 is the doctor who conducted autopsy. In his examination, accused do not assert that death is otherwise homicidal. As against that during the cross-examination of other witnesses, it is suggested that money lenders acquire enemies due to their business. Thereby impliedly suggesting that some borrowers might be the culprits. There is no eyewitness to the incident. 11. The case of the prosecution depends on the following circumstances: i. Motive, namely:- (a) Illicit relationship between the accused Nos.1 and 3. (b) Illicit relationship between the deceased and Nagamani-P.W.13. (c) The loan transaction between accused No.1 and the deceased; ii. Recovery of the diary of the deceased from accused No.1; iii. Recovery of cell phone of the deceased from accused No.2; iv. Recovery of the weapons of offence; v. Soon after accused No.1 speaking to the deceased on phone, deceased went missing - call details; vi. Accused No.1 and deceased were last seen together; Reg: Motive: 12. According to the prosecution accused No.3 had illicit relationship with accused No.1 and the deceased came to know of the same. It is the further case of the prosecution that deceased had illicit relationship with PW-13 – Nagamani and accused No.3 was apprehending that due to her illicit relationship with accused No.1, her husband may kill her at any time. Due to such apprehension, according to the prosecution, accused No.3 lured accused No.1 that if Rajarao is eliminated, they can continue without any hindrance and that dispenses with the repayment of loan of Rs.30,000/- borrowed by accused No.1 from the deceased. 13. Thus, the motive circumstance involves two aspects; one is the illicit relationship of accused Nos.1 and 3 and the deceased and PW-13, second is the loan borrowed by the first accused from deceased Rajarao. The Trial Court has not discussed anything about the loan aspect. 13. Thus, the motive circumstance involves two aspects; one is the illicit relationship of accused Nos.1 and 3 and the deceased and PW-13, second is the loan borrowed by the first accused from deceased Rajarao. The Trial Court has not discussed anything about the loan aspect. Sole evidence of PW-13 – Nagamani regarding illicit relationship between accused Nos.1 and 3 is accepted by the Trial Court to hold that the motive circumstance is proved. 14. It is not disputed that for about three years prior to the death of Rajarao the 3rd accused was regularly working in the Farm establishment of the deceased and left the job. PW-13 in her cross-examination states that she had witnessed the illicit relationship of accused Nos.1 and 3 since three to four years prior to the death of Rajarao and she had revealed the same to Rajarao and advised him not to avail the services of accused No.1. She states that Rajarao retorted her not to slander and asked should his avocation be brought to stand-still by dispensing the services of accused No.1. Such evidence of PW-13 itself sounds that Rajarao did not believe the information conveyed by her to him. 15. PW-13 at another breath testifies that on noticing the frequent conversation of accused Nos.1 and 3 over phone Rajarao got disconnected the telephone line and on accused No.3 swearing on some photo, he got the telephone connection restored. If all such things had happened, in the ordinary course, the family members of Rajarao i.e., the sons and brother should also have clue of such things. 16. The evidence PW-1 the brother and PW-16 the son of the deceased, PW-27 the brother of 3rd accused and brother-in-law of the deceased is silent about any such incident. PW-1 in his cross-examination states that till death of Rajarao accused No.3 and Rajarao lived cordially and he did not find any such illicit relationship between accused Nos.1 and 3. PW 16 the son of deceased and accused No.3 in his cross-examination states that himself, his father, the elder brother and accused No.3 all lived cordially. He states that his parents never quarreled with each other and lived happily. PW-27 denies the suggestion that accused Nos.1 and 3 had hatched plan to murder Rajarao. PW 16 the son of deceased and accused No.3 in his cross-examination states that himself, his father, the elder brother and accused No.3 all lived cordially. He states that his parents never quarreled with each other and lived happily. PW-27 denies the suggestion that accused Nos.1 and 3 had hatched plan to murder Rajarao. PW-1 being the brother of deceased, if at all accused No.1 & 3 had murdered Rajarao due to their illicit relationship, would not have spared or shielded them. 17. It is also to be noted that PW-13 is not the immediate neighbour of deceased Rajarao or accused No.3. The evidence on record shows that in between the houses of PW-13 and the deceased, there is one more house. If at all there was any such galata in the house of the deceased and accused No.3 due to any such illicit relationship, it would not have gone unnoticed by the immediate neighbour. PW-13 herself admits that there are other houses adjacent to the house of Rajarao. None of those neighbours except PW-13 are examined as witnesses regarding motive aspect. 18. PW-13 in her cross-examination states that herself and her husband were close to deceased Rajarao. If that is so her husband also could have known that fact. But he is not cited as a witness. The evidence of PW-13 further reveals that at her instance, Rajarao had lent loan to her brother. As per the prosecution, it was PW-13 who had illicit intimacy with the deceased. However, PW-13 says that deceased himself dismissed theory of illicit relationship of accused Nos.1 and 3. 19. Having regard to the aforesaid facts, the Trial Court has committed error in relying on the sole self-serving and shady testimony of PW-1 to arrive at the conclusion that there was illicit relationship between accused Nos.1 and 3 and the motive circumstance is proved. 20. Though the loan transaction between Accused No.1 and the deceased is not seriously disputed in the cross-examination of witnesses, in the absence of proof that accused No.3 lured accused No.1 to kill Rajarao to get rid of said loan and he was persuaded by that, it cannot be said that loan transaction was a motive for murder. REG. LAST SEEN TOGETHER: 21. It is the case of prosecution that accused No.1 secured the deceased to Hunsur, under the guise of repayment of loan amount. REG. LAST SEEN TOGETHER: 21. It is the case of prosecution that accused No.1 secured the deceased to Hunsur, under the guise of repayment of loan amount. According to the prosecution, the deceased had revealed to the witnesses the fact of accused No.1 calling him to Hunsur for repayment of loan and accused No.1 and deceased were last seen together. To prove these circumstances, the prosecution relies on the evidence of P.W. Nos.6, 8, 9, 10, 16 and 22. 22. PW-6 testifies that his father was admitted in Hunsur Government Hospital and on 25.06.2010 deceased Rajarao dropped his mother from Heggandur bus-stop to Hunsur Government Hospital. Rajarao spoke to his father and left the hospital saying that he is going to collect money from somebody. This witness does not state anything about accused No.1 calling the deceased over phone or seeing the accused No.1 and deceased together. 23. PW-8 says that on 24.06.2010 on his way to Tibbalapura his cousin’s place en route Hunsur at about 8.00 p.m. he sighted accused No.1 and Rajarao together in the bus-stop. Of course, nothing worth is elicited in his cross-examination to show that his evidence is unworthy of acceptance. 24. PW-9 has not seen the accused and deceased together. But she states that on the day of the incident at 8.00 p.m. in Hunsur bus-stand she met Rajarao, when she enquired he told that he has come with accused No.1 regarding some financial matter. Thus, she has not seen accused No.1 and deceased together but she learnt from Rajarao that himself and accused No.1 have come together. 25. PW-10 is the resident of Heggandur Village. She is mother of PW-6. Her evidence is to the effect that on the day of the incident at 6.00 p.m. when she was waiting to go to Hunsur Hospital, the deceased who was proceeding on his bike towards Hunsur, enquired her and dropped her to Hunsur Government hospital when she enquired about his visit to Hunsur, he told that he is going to Hunsur in connection with some financial matter. In her cross-examination by the prosecution, she stats that deceased revealed her that accused No.1 is due of Rs. 30,000/- to him and at the instance of accused No.1, he is going to Hunsur to collect the money from accused No.1. 26. In her cross-examination by the prosecution, she stats that deceased revealed her that accused No.1 is due of Rs. 30,000/- to him and at the instance of accused No.1, he is going to Hunsur to collect the money from accused No.1. 26. PW-16 the son of the deceased testifies that on the day of incident, accused No.1 phoned the deceased on his cell phone and he received the call and accused No.1 asked him to handover the phone to his father. He further deposed that after attending the said call, deceased told him that since accused No.1 has called him he has to go to Hunsur and left the house. Later at 8.00 p.m., deceased informed him over telephone that he is with accused No.1 and returns home late, therefore they should have their dinner. He further deposes that he conveyed the same to his mother, accordingly they had dinner and went to bed, but his father did not return home and later was found dead. 27. All the above said witnesses corroborate each other in their evidence that deceased left the house on the day of the incident saying that accused No.1 has called him to Hunsur to pay back the money due from him and then went missing. As rightly held by the Trial Court, the evidence of these witnesses is not impeached in their cross-examination. Therefore, the Trial Court is justified in holding that the “circumstance that accused No.1 and deceased were last seen together” is proved. REG.RECOVERY OF MO-18 THE DIARY OF THE DECEASED, MOBILE PHONES MO-13 and MO-20 AND BIKE OF ACCUSED NO.2 MO.17 AT THE INSTANCE OF ACCUSED: 28. These two circumstances are very material circumstances. According to the prosecution accused No.1 confessed under Ex.P.30 that after committing murder he took away the MO-18 the diary of the deceased. According to the prosecution accused No.1 led the I.O. and panchas to his house and produced MO-18 diary of the deceased and MO-16 mobile phone and regarding that recovery, the Mahazar Ex.P11 was drawn in the presence of panchas PW Nos.20 and 25. 29. According to the prosecution, on the same day, accused No.2 gave voluntary statement as per Ex.P-31, stating that after commission of the offence, he has taken away the cell phone of the deceased. 29. According to the prosecution, on the same day, accused No.2 gave voluntary statement as per Ex.P-31, stating that after commission of the offence, he has taken away the cell phone of the deceased. According to the prosecution, he led I.O. – PW-30 and panchas PWs 20 and 25 to his house and produced the cell phones and regarding that the mahazar Ex.P15 was drawn. 30. As per the prosecution itself the actual assailants were accused Nos.1 and 2. Therefore the recovery of MO-18 the diary of the deceased and MO- 13 the alleged carbon mobile handset of the deceased is the clinching circumstance. The burden is on the prosecution to prove that those two material objects belonged to the deceased and they were recovered from the custody of accused Nos.1 and 2 on the basis of their voluntary statements. 31. To prove the recovery of MO-13 and MO-20, the prosecution relied upon the evidence of PWs 20 and 25, the mahazar witnesses and PW-30 – the I.O. Out of panchas PWs 20 and 25, PW-25 has turned hostile. PW-25 stated that on the direction of police, he took a car near the office of the C.P.I., then C.P.I. took him in the car to Heggandur. He further stated that the police stopped the car at the entrance of the village, asked him to wait and went into the Village at 3.00 p.m. and returned at 5.00 p.m. 32. PW-25 further deposes that police did not show any person there and after three days police took his signatures on Exs.P13 and P15 and the chits affixed on MO Nos.12 to 16 and 18 and 20 near Taluk Office and he does not know for what purpose his signatures were taken. He denies any of the accused leading him and PW-20 to any place or producing any material object or drawing of any mahazar. 33. Though the prosecution cross-examined PW- 25 treating him as hostile witness, nothing worth is elicited to show that he is in any way interested in the accused and therefore he is deposing falsely. The alleged recoveries are from the house of accused Nos.1 to 3 in Hegganddur Village. The neighbours of the places of alleged recoveries are not taken as mahazar witnesses. The I.O. has no explanation for that. 34. The alleged recoveries are from the house of accused Nos.1 to 3 in Hegganddur Village. The neighbours of the places of alleged recoveries are not taken as mahazar witnesses. The I.O. has no explanation for that. 34. P.W.20 during his chief-examination supports only the recoveries made at the instance of accused Nos.1 & 3 under Ex.P.11 to Ex.P.13 but he does not support the recoveries made at the instance of 2nd accused under Ex.P.15. Only on the prosecution treating him as hostile and making him suggestions in cross-examination regarding recovery of M.O.18-diary and M.O-19 mobile phone from the 3rd accused and M.O.13 and M.O.20 from the 2nd accused, he admits those suggestions. 35. During his cross examination by the defence counsel he stated that he did not enter the house of the 1st accused and only the police informing him that 1st accused has given the mobile phone and the diary he learnt about that. He failed to give details of the time of mahazar, the persons who were present during the mahazar. 36. It is the contention of the accused that P.W.20 and P.W.25 are the stock witnesses for the Hunsur Police. P.W.20 during cross examination admits that he has subscribed signatures in two other cases in Hunsur Rural Police Station and one case in Hunsur Town Police Station. He states that himself and P.W.25 hail from the same village and Hunsur Rural Police Station is at a distance of 14 Kilometers from his village. Therefore a reasonable doubt would arise as to why the police did not secure the local witnesses as panchas, instead secured those remotely placed witnesses as panch witnesses. 37. P.W.20 deposes that he had gone to the Police station in connection with his neighbour’s case, by the time they reached the house of the 1st accused people had gathered there. He further deposes that the Mahazar relating to the recovery at the instance of 1st accused was not written to his dictation and read out to him. His evidence regarding alleged recovery at the instance of the accused No.3 also is the same. He testifies that he saw the bike in the Hunsur Police station, though according to the police the bike was recovered from the house of the 2nd accused. 38. P.W.30-the I.O deposes that he secured P.W.20 and P.W.25 as panchas. The evidence of P.W.20 is not firm and is inconsistent. He testifies that he saw the bike in the Hunsur Police station, though according to the police the bike was recovered from the house of the 2nd accused. 38. P.W.30-the I.O deposes that he secured P.W.20 and P.W.25 as panchas. The evidence of P.W.20 is not firm and is inconsistent. The said evidence is not corroborated by evidence of P.W.25. Added to that the I.O has not traced to whom the SIM cards seized and the SIM cards of mobile phones and mobile phones belong to. He has also not made any efforts to find out to whom the motor bike allegedly seized from the custody of the accused No.2 belongs to. 39. Having regard to these facts, the Trial Court erred in relying on the un-corroborated testimony of P.Ws.20 & 30 to record the finding that said evidence proves the recovery of M.O. 13 to M.O. 20. REG. CALL DETAILS: 40. The trail Court relying on the call details Exhibits 24 to 28 and recovery of M.O’s 13, 14, 16, 19 and 20 coupled with the last seen circumstance holds that the conversation between accused No.1 and the deceased and accused Nos.1, 2 and 3 inter se, the conspiracy between accused Nos.1 to 3 to commit murder of Rajarao, accused No.1 securing the deceased to Hunsur and commission of offence is proved. 41. It is to be noted that the Trial Court has not framed any specific charge regarding conspiracy. Even otherwise, it is already held that the circumstance of motive and the recovery are not proved. As already pointed out the Investigating Officer has failed to collect the evidence to show that the accused owned the SIM cards from which the calls shown in Exs.P.24 to P.25 were originated or received. 42. Trail Court observes that the IMEI nos. of the cell phones recovered from accused Nos.1 to 3 correspond to cell phone numbers shown in call details Ex.P.24 to P.25. To say so there is no technical expert’s evidence before the Court. There is nothing to show that International Mobile Equipment Identity (IMEI) and Subscribers Identity Module (SIM) are one and the same or they correspond to each other. Even evidence of Investigating Officer is silent in this regard. Therefore, finding of the Trial Court that the IMEI numbers correspond to the cell phone numbers shown in Exs.P.24 to P.25 is totally baseless. 43. Even evidence of Investigating Officer is silent in this regard. Therefore, finding of the Trial Court that the IMEI numbers correspond to the cell phone numbers shown in Exs.P.24 to P.25 is totally baseless. 43. The circumstances discussed supra are the only material circumstances. The other circumstances are not much material. On failure to prove the aforesaid material circumstances, even if the other circumstances are proved, that does not advance the case of the prosecution. The material circumstances are not proved. It is settled law that in a case based on the circumstantial evidence the chain of circumstances pointing towards the guilt of the accused shall be proved without any break. Each such circumstance has to be proved beyond reasonable doubt. The break in the chain of such circumstances confers the benefit of acquittal to the accused. 44. Hon’ble Supreme Court in Lakhanapal v. The State of Madhya Pradesh, AIR 1979 SC 1620 , has held as follows: “Circumstantial evidence, when insufficient to prove- guilt in prosecution for offence of murder the mere fact that the accused and the deceased were together in the field prior to the occurrence does not by itself lead to irresistible inference that accused must have murdered the deceased.” 45. Having regard to the aforesaid judgment and the fact that the prosecution has failed to prove the material circumstances of motive and recoveries of the incriminating materials, the impugned order of conviction and sentence is unsustainable. Therefore, the appeals are allowed. The impugned judgment and order of conviction and sentence passed by the Fast Track Court, Hunsur in S.C. No.24/2011 against the appellants for the offence punishable under Section 302 read with section 34 of I.P.C is hereby set aside. The appellants/accused Nos.1 to 3 are acquitted of the charge for the offence punishable under Section 302 read with 34 of I.P.C. Accused Nos.1 to 3 shall be set at liberty forthwith, if their detention is not required in any other case. The order of the Trial Court regarding the disposal of the properties is made absolute. Fine amount deposited if any, shall be refunded to the accused.