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2020 DIGILAW 1290 (KAR)

Girimallayya v. State Of Karnataka,

2020-07-01

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - This Criminal Appeal is directed against the judgment of conviction and order of sentence passed by the learned II Additional District and Sessions Judge, Bagalkot, (herein after referred to as the 'trial Court' ), in Sessions Case No.57/2011 dated 20.12.2016, wherein the appellant-accused has been convicted for the offences punishable under Sections 302 and 201 of IPC. 2. We have heard the learned counsel Sri. Ananth Hegde, for the appellant-accused and the learned Additional S.P.P. Sri V.M. Banakar for the respondent-State. 3. The genesis of the case of the prosecution in brief is that on 23/11/2011 in the morning, the complainant was watering his agricultural land. At about 7.20 a.m., he received a phone call from one Sri. Manohar Meti informing that a dead body is lying by roadside in front of his poultry farm. Immediately, he went and found unknown dead body lying there with bleeding injuries over the neck, forehead and left hand. Realising that some miscreants have committed the murder of the deceased and thrown the body there, he filed the complaint. 4. On the basis of the complaint, a case has been registered in Crime No.72/2011. Thereafter, after investigation, the charge sheet came to be filed. 5. The learned Magistrate after following the procedure, committed the case to the Sessions Court. Sessions Court took cognizance and secured the presence of the accused and thereafter, after hearing the parties to the proceedings, the charge was framed, read over and explained to the accused. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed. 6. The prosecution in order to prove the guilt of the accused, got examined 27 witnesses, got marked 38 documents and 21 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating materials as against him. He denied the said incriminating materials, but he has not led any evidence. But however, during the course of cross examination of PWs-6 to 11, he got marked Exs.D1 to D8. After hearing both the sides, the trial Court passed the impugned Judgement of conviction and order of sentence. Challenging the legal ity and correctness of the said judgment, the appellant accused is before this Court. 7. But however, during the course of cross examination of PWs-6 to 11, he got marked Exs.D1 to D8. After hearing both the sides, the trial Court passed the impugned Judgement of conviction and order of sentence. Challenging the legal ity and correctness of the said judgment, the appellant accused is before this Court. 7. The main grounds urged by the learned counsel for the appellant accused are that the impugned judgment of the Trial Court is erroneous and not based on sound reasons. It is his further submission that the motive for the alleged incident itself is a very weak circumstance and even though the said circumstance has not been clearly established, the Trial Court ought not to have relied upon such evidence. It is his further submission that the father of the deceased was examined as PW- 6. In his cross examination, he has deposed that he came to know about the accused only when he had seen the accused in the pol ice station. Then under such circumstances, the evidence of this witness to the effect that there was some money transaction between the accused and the deceased, itself is going to be demolished. 8. It is his further submission that evidence regarding recovery which has been relied upon by the prosecution does not substantiate the case of the prosecution. PW-5 is the recovery Mahazar panch, but he is none other than the relative of PW-6 and even the recovery at the instance of the accused is also not substantiated with any material. The knife is said to have been recovered from the sugarcane field and PW-5 has deposed during the course of cross examination that at the time of recovery, the sugarcane was not cleared from the field. But the investigating off icer-PW-26 has deposed contrary to the evidence of PW-5 and stated that the sugarcane was cleared and thereafter, recovery proceedings have been conducted. This contradiction goes to the root of the case of the prosecution. 9. It is his further submission that PW- 11, the friend of the deceased has met in the hotel and in his evidence, he has deposed that while going the deceased had given his Nokia phone with Vodafone SIM, with an instruction that if any call is received from his house, he has to answer. With such instructions the phone itself said to have been handed over to PW-11. With such instructions the phone itself said to have been handed over to PW-11. Then under such circumstances, the recovery of the phone MO-6, at the instance of the accused that too, in the sugarcane field, itself creates a doubt in the case of the prosecution and even the recovery itself is considered to be tainted. 10. It is his further submission that the recovery of blood stained T-shirt was said to be at the instance of the accused from a pond. As per the evidence of PW-5 the said T-shirt has been recovered by using a device called "antargange". But as per the evidence of PW-18, the shirt has been removed from the pond by a person diving into the pond and bringing it up. This contradiction itself clearly goes to show that even the T-shirt was not recovered at the instance of the accused. It is his submission that the evidence led to prove the recovery is not as contemplated under Section 27 of the Evidence Act and it is not the recovery in the eye of law. Under such circumstances, the trial Court ought to have given the benefit of doubt to the accused. 11. It is his further submission that the prosecution has also relied upon one more circumstance i.e. last seen theory. In this behalf, prosecution has relied upon the evidence of PW-11 who is none other than the roommate of the deceased. But when the evidence of this witness itself is not creditworthy in so far as the recovery of the mobile is concerned, then under such circumstances, lastly seeing the accused coming over to the hotel and taking the deceased on his motorbike, also not trustworthy and reliable. It is his further submission that PW- 11, himself has deposed before the Court that when the deceased did not return to the home, he called him over mobile phone and found the said mobile switched off. As such, subsequently, he called the accused and talked with him as well as the deceased. When that mobile belonging to the deceased was with himself, as deposed in his evidence, then under such circumstances, he calling the deceased as well as the accused, over phone, itself appears to be contrary to each other. Under such circumstances, even the last seen theory, prosecution has put forth, is not believable and acceptable. 12. When that mobile belonging to the deceased was with himself, as deposed in his evidence, then under such circumstances, he calling the deceased as well as the accused, over phone, itself appears to be contrary to each other. Under such circumstances, even the last seen theory, prosecution has put forth, is not believable and acceptable. 12. It is his further submission that the evidence clearly goes to show that the deceased was having a love affair with one Chaya and in that context, the boys belonging to Bagalkot have also assaulted him and a galatta has also taken place in this behalf. So in that light, it creates a doubt in the case of the prosecution and there is every possibility of the said persons who have assaulted the deceased might have again assaulted and after taking his life thrown the body on the roadside. 13. It is his further submission that when the case of the prosecution creates a doubt, then under such circumstances, the benefit of doubt ought to have been given to the accused. It is his further submission that when the case rests on the circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature and al l the circumstances should be complete and there should not be any l ink left in the chain of circumstances. If any l ink in the chain of events is broken, then under such circumstances benefit of doubt has to be given to the accused. In order to substantiate his arguments, he has relied upon the decisions of the Honb'le Apex Court in case of Bodh Raj alias Bodha and others Vs. State of Jammu and Kashmir, (2002) AIR SC 3164 . 14. It is his further submission that there is no cogent and acceptable evidence before the Court that, trial court only on suspicion has come to a wrong conclusion and wrongly convicted the accused. Therefore on these grounds, he prayed to al low this appeal, set aside the judgement of conviction and order of sentence and to acquit the appellant. 15. Per contra, the learned Additional SPP vehemently argued and submitted that there is a strong motive for the accused to commit the offence concerned. Therefore on these grounds, he prayed to al low this appeal, set aside the judgement of conviction and order of sentence and to acquit the appellant. 15. Per contra, the learned Additional SPP vehemently argued and submitted that there is a strong motive for the accused to commit the offence concerned. PWs.6, 10, 11 and 14 have consistently deposed before the Court that there was some money transactions between the accused and the deceased in respect of an old coin and the deceased was owing Rs.2,000/- and in that light, they used to quarrel. It is his further submission that PWs.10 and 11 are the main witnesses who have seen the accused and the deceased going on a motorcycle, after finishing their dinner. When the accused and the deceased were last seen together, then under such circumstances, the accused has to explain as to when he departed the company of the deceased, after they went together. If he does not come with a proper explanation, then under such circumstances, the only inference that has to be drawn is that it is the accused who has committed the offence. It is his further submission that at the instance of the accused, the knife - MO.8 and the stone MO.9 have been recovered and even the FSL report also substantiated the fact that the said articles were stained with human blood. It is his further submission that al l the events are linked with one another, they form a complete chain and it only points out towards the guilt of the accused and accused alone. The trial Court after taking into consideration the facts and circumstances, has come to a right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court. On these grounds, he prayed to dismiss the appeal. 16. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the Trial Court records. 17. There is no dispute on the fact that the case on hand is entirely rests on circumstantial evidence and there are no eye witnesses to the alleged incident. 16. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the Trial Court records. 17. There is no dispute on the fact that the case on hand is entirely rests on circumstantial evidence and there are no eye witnesses to the alleged incident. It is trite of law, where a case rests squarely on circumstantial evidence, the inference of gui lt can be justified only when al l the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. It is also trite of the law that the circumstances from which an inference as to the gui lt of the accused is to be drawn, same have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal of fact sought to be inferred from those circumstances. This preposition of law has been also substantiated in the decision of Bodh Raj alias Bodha and others Vs. State of Jammu and Kashmir quoted supra at para 10 and 11, which has been observed as under:- "10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when al l the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. (See Hukam Singh v. State of Rajasthan, (1977) AIR SC 1063 ), Eradu and Ors. v. State of Hyderabad, (1956) AIR SC 316 , Earabhadrappa v. State of Karnataka, (1983) AIR SC 446 , State of U.P. v. Sukhbasi and Ors., (1985) AIR SC 1224 ; Balwinder Singh v. State of Punjab, (1987) AIR SC 350, Ashok Kumar Chatterjee v. State of MP, (1989) AIR SC 1890 . The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, (1954) AIR SC 621 ), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 11. We may also make a reference to a decision of this Court in C Chenga Reddy and Ors. v. State of A.P, (1996) 10 SCC 193 , wherein it has been observed thus: "In a case based on circumstantial evidence. the settled law is that the circumstances from which the conclusion of gui lt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, al l the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the gui lt of the accused and totally inconsistent with his innocence.....'" 18. Keeping in view the ratio laid down in the above decision, let us consider the case of the prosecution. It is the case of the prosecution that during the course of Investigation, the investigating off icer found a pen drive in the pant pocket of the deceased. On the basis of the same, he came to know that the deceased was studying Diploma in Bilgi college and in that light, the further investigation has been done and it was disclosed that there was a monetary transaction of Rs.2,000/- between the deceased and the accused and accused used to quarrel for returning the same. On the basis of the same, he came to know that the deceased was studying Diploma in Bilgi college and in that light, the further investigation has been done and it was disclosed that there was a monetary transaction of Rs.2,000/- between the deceased and the accused and accused used to quarrel for returning the same. There was also some dispute with regard to an old coin and in that light, the deceased was called to a hotel and from there the accused took the deceased on his motorbike and thereafter, they had dinner and drinks and he has been taken to the sugarcane field; there he assaulted with the knife as a result of which the deceased fell down, then he was taken by the accused on his motorbike to the place where the body was found and there the injured was assaulted with a stone and caused the death of the deceased. The prosecution in order to establish its case has relied upon the following circumstances:- i ) motive ii) recovery of the articles at the instance of the accused and iii ) last seen theory. 19. In order to substantiate the said fact, the prosecution has relied upon the evidence of PWs-6, 10, 11 and 14. 20. Pw-6 is the father of the deceased. In his evidence, he has deposed that the deceased is his son. On 10/3/2011 at 4.00p.m. accused had come to his residence at Alamatti camp quarters and told that his son Prashant had taken Rs.2,000/-. When he asked his son to return the same. His son refused such borrowing and thereafter, PW-6 told that he will make an enquiry with his son and asked for four days time. But, during the course of examination of this witness, he has deposed that he had stated before the pol ice as per Ex.D1, to the effect that he came to know about the name of the accused as Girimallayya Basayya Kalamath, from the pol ice. But, during the course of examination of this witness, he has deposed that he had stated before the pol ice as per Ex.D1, to the effect that he came to know about the name of the accused as Girimallayya Basayya Kalamath, from the pol ice. If he has stated before the pol ice as per Ex.D.1 to the fact that he came to know about him only when the police called, then under such circumstances, his deposition in examination-in-chief to the effect that on 10/3/2013 at about 4.00 p.m., the accused Girimallyya had came to his house and he had told that an amount of Rs.2,000/- is due from his son Prashant which he is not returning and PW-6 telling the accused that he is going to make an enquiry and will inform after four days; itself falsif ies. His evidence is contrary to each other. 21. As could be seen from the evidence of PW-11, the roommate, in his evidence he has deposed that in the year 2011, about three to four months prior to the death, of the deceased, the accused came to the room and quarreled with the deceased in respect of an old coin and about re-payment of the amount. But on perusal of his evidence, he has deposed that on 22/3/2011 at about 8.00 p.m., himself and the deceased were there in a hotel by name 'Patil' and taking the snacks. At that time, the accused came there on a Hero Honda Splendor bike and took the deceased on his bike by saying that he is having some work. At that time, the deceased told him to go to the room and handed over the Nokia mobile phone with Vadafone SIM, by telling that, if any calls are received from his house, he has to attend. But as per, the evidence of PW-5 the accused had led to a Kacha road leading to a sugarcane field and showed the place where he had committed the murder of the deceased Prashant and he had also took out the mobile phone, one ATM card, one knife, a SIM card, empty gold flake cigarette packet and three cigarette buds, which have been seized while drawing a Mahazar. If really the Nokia phone belonging to the deceased, has been given to PW-11, then under such circumstances recovering the said phone at the instance of the accused from the sugarcane field also creates a doubt with reference to the recovery. On the basis of such evidence, if the evidence of PW-11 is looked into, then trustworthiness and creditability of the witness itself creates a doubt, not only with reference to the motive which he has spoken, but even in respect of last seeing the deceased and the accused together, when the accused was said to have been taken on his Hero Honda Splendor motorbike. On this count also, the evidence of PW-11 is not trustworthy and it is shaky and not reliable. 22. The prosecution has also relied upon the evidence of PW-10. He is a known person to the deceased. But he has not stated anything with regard to the monetary transaction between the accused and the deceased and insofar as the motive is concerned, he is a hearsay witness. 23. The evidence of PW-14 is also not trustworthy and reliable so as to come to the conclusion that there was monetary transaction. Even the circumstances which have been gathered during the course of investigation i.e., from the evidence of PW-11, it goes to show that the accused had called the deceased when they were taking snacks in the hotel by name 'Patil '. Later the accused came there, took the deceased on his motorcycle and thereafter, they had dinner, thereafter took the deceased to the sugarcane field and there he was assaulted with knife. It is the contention of the prosecution that, in the sugarcane field, only the accused and the deceased alone were there and even it is not the case of the prosecution that there was some disturbance and that is why the accused shifted the injured to some other place and thereafter, he had smashed his head with a stone. Even it is surprising to notice that because of non returning of Rs.2,000/- there was enmity between the deceased and the accused. As per the version of the prosecution, the accused and the deceased were closely moving and even the evidence of the witnesses indicate that the accused used to visit the room of the deceased. Under such circumstances, only for that silly reason, accused causing the death of Prashant, itself creates a doubt. As per the version of the prosecution, the accused and the deceased were closely moving and even the evidence of the witnesses indicate that the accused used to visit the room of the deceased. Under such circumstances, only for that silly reason, accused causing the death of Prashant, itself creates a doubt. 24. From the evidence of PW-11, it indicates that the deceased had fallen in love with one Chaya and that there was some quarrel between the deceased and other college mates. For that reason, one Pavan Rathod of Bagalkot had brought some people and had also quarreled and assaulted the deceased. It also reveals that the deceased was also in the habit of consuming alcohol. Under such circumstances, the motive which is intended to be relied upon by the prosecution, appears to be scanty and very weak and even the evidence of PW-6-the father, creates reasonable doubt about such motive on the part of the accused resulting in the homicidal death of the deceased. 25. The evidence produced in so far as this circumstance is concerned, it is not cogent and acceptable. We are cautious of the fact that in circumstantial evidence, motive plays a vital role to tilt the scale either in favour of the accused or in favour of the prosecution. But we are also cautious of the fact that if the motive is shaky and not acceptable, then under such circumstances, the benefit of doubt has to be given to the accused. 26. Leave apart this. Even prosecution has also intended to rely upon one more circumstance that of recovery of the incriminating articles, at the instance of the accused. In that light, the prosecution has relied upon the evidence of the investigating officer PW-26, voluntary statement of the accused at Ex.P32 and the evidence of PW-5. 27. On perusal of the evidence of PW-5, it indicates that the accused led the pol ice and the witnesses to the place where he has committed the murder and in that field MOs.1 to 8 have been recovered and seized by drawing the Mahazar as per Ex.P13. They have also recovered MO.10-the T-shirt of the accused from a pond. As already discussed above, during the course of cross-examination, he has deposed that the sugarcane plants standing therein were not cut and cleared whi le drawing the said Mahazar. They have also recovered MO.10-the T-shirt of the accused from a pond. As already discussed above, during the course of cross-examination, he has deposed that the sugarcane plants standing therein were not cut and cleared whi le drawing the said Mahazar. But the investigating off icer, PW-26 has deposed that the sugarcane was cut and the same has been cleared and thereafter, the recovery has been made. That itself is a major contradiction, in so far as the recovery is concerned. 28. Be that as it may. This witness has deposed that MO.6-Nokia handset mobile phone is recovered at the instance of the accused. How this mobile phone reached the field is not explained by the prosecution. As per the evidence of PW-11, immediately when the accused came to take the deceased along with him, the deceased had handed over the Nokia mobile phone along with Vodafone SIM to PW- 11, with an instruction to attend the calls. Under such circumstances, the recovery of the Nokia mobile phone from the sugarcane field itself creates a doubt in the case of the prosecution. Once the case of the prosecution appears to be tainted and witnesses are planted, then under such circumstances, reasonable doubt will arise in the case of the prosecution. 29. Even the recovery of the T-shirt also creates a doubt. As per the evidence of PW-5 after seizure of MOs.1 to 8, the accused has taken them to a cement quarry and there he showed a pond and informed that the T-shirt was thrown in that pond and PW-18 and one Madan Shetty, they dived into the pond and removed the said T-shirt which was seized by drawing Mahazar as per Ex.P15. But in the evidence of PW-18 and PW-26, they have deposed that the said T-shirt has been recovered by using a device called "patalagange/ anthargange". Further both these witnesses deposed that the T-shirt so recovered was stained with blood. It is to be noted that the incident had taken place on 23/03/2011. The Tshirt is said to have been recovered as per Ex.P15 on 29/03/2011 from the pond. According to PW18, the depth of the pond was about 12 to 15 feet. But still the witnesses say that they could notice the blood stains on the T-shirt so lifted from the water. The Tshirt is said to have been recovered as per Ex.P15 on 29/03/2011 from the pond. According to PW18, the depth of the pond was about 12 to 15 feet. But still the witnesses say that they could notice the blood stains on the T-shirt so lifted from the water. In addition to that, even though it is said that the incriminating materials were recovered at the instance of the accused, under the seizer mahazars on 29/03/2011, PW18 who assisted the investigating officer in lifting the T-shirt from the water in the deep pond, deposed before the trial Court during cross examination, that PW-5 had asked him to come for the purpose on 28/03/2011 at 9.00 p.m. itself. It is pertinent to note here that as per the evidence of the investigating of ficer-PW26, the accused was apprehended on 29/03/2011 at 8.30 a.m. and thereafter his voluntary statement was recorded and the accused led them to recover the incriminating materials. A serious doubt will arise about the case made out as to how PW5 could arrange for PW18 on the previous day itself even before arrest of the accused. This has not been clarified by the prosecution. 30. Taking into consideration the contradictions which has been brought in the evidence of al l these witnesses, even the recovery which is said to have been made at the instance of the accused is clouded and doubtful. Even during the course of cross examination of PW-11 that it has been brought that the deceased used to quarrel with the boys of Bagalkot and even once they had assaulted the deceased. 31. On perusal of the evidence which has been brought on record the evidence regarding, recovery which the prosecution is intending to rely upon, has not been proved as contemplated under Section 27 of the Evidence Act and even that the evidence which has been produced is also shaky and not trustworthy and reliable. As rightly pointed out by the learned counsel for the appellant-accused in order to bring home the guilt of the accused, all the circumstances are to be linked up with one another and then the Court will be in a position to see the complete chain of events and if all the important l inks have been established, then prosecution is said to have been proved the case. But in the instant case on hand, the missing links in the chain of circumstances not established the case of the prosecution beyond al l reasonable doubt. When a doubt arises in the case of circumstantial evidence, then benefit of doubt should go to the accused. This preposition of law has been laid down in the decision of the Hon'ble Apex Court in the case of State of Uttar Pradesh Vs. Sunil connected with Rekha Sengar Vs. State of Uttar Pradesh and Another, (2017) 14 SCC 516 (b). In paragraphs 13, 14 and 15 the Hon'ble Apex Court held a follows:- "13. In a case where there is no direct witness to prove the prosecution case, conviction of the accused can be made on the basis of circumstantial evidence provided the chain of the circumstances is complete beyond all reasonable doubt. It was observed by this Court in the case of Prakash vs. State of Karnataka, (2014) 12 SCC 133 , as follows: "51. It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevant fact. "6. In a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused. ( Lakhjit Singh Vs. State of Punjab, (1994) Supp1 SCC 173 )" 14. It has also been the observation of this Court in Musheer Khan Vs. State of M.P., (2010) 2 SCC 748 , apropos the admissibility of evidence in a case solely based upon circumstantial evidence that "55. Section 27 starts with the word 'provided'. Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. [See State of Bombay vs. Kathi Kalu Oghad, (1961) AIR SC 1808 ]. 56. The Privy Council in Pulukori Kottaya vs. King Emperor, (1947) AIR PC 67 ] held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding sections. [See State of Bombay vs. Kathi Kalu Oghad, (1961) AIR SC 1808 ]. 56. The Privy Council in Pulukori Kottaya vs. King Emperor, (1947) AIR PC 67 ] held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding sections. However, the extent of discovery admissible pursuant to the facts deposed by accused depends only to the nature of the facts discovered to which the information precisely relates. 57. The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused. 58. So the objection of the defense counsel to the discovery made by the prosecution in this case cannot be sustained. But the discovery by itself does not help the prosecution to sustain the conviction and sentence imposed on A-4 and A-5 by the High Court." 15. From a perusal of the evidence on record, it could without any hesitation be said that the basic foundation of the prosecution had crumbled down in this case by not connecting the respondent with the incident in question. And when basic foundation in criminal cases is so collapsed, the circumstantial evidence becomes inconsequential. In such circumstances, it is difficult for the Court to hold that a judgment of conviction could be founded on the sole circumstance that recovery of weapon and other articles have been made. 32. Taking into consideration the above said proposition of law and the facts and circumstances of the case, we are of the considered opinion that though the prosecution has produced the evidence to substantiate its case, but same is not trustworthy and reliable so as to bring home the guilt of the accused beyond reasonable doubt. 33. 32. Taking into consideration the above said proposition of law and the facts and circumstances of the case, we are of the considered opinion that though the prosecution has produced the evidence to substantiate its case, but same is not trustworthy and reliable so as to bring home the guilt of the accused beyond reasonable doubt. 33. On perusal of the records and evidence, even though there is no materials to bring home the guilt of the accused for 'the offence punishable under Section 201 of IPC, the trial Court only because that the body has been shifted from one place to another place, without there being any evidence for which purpose body has been shifted, wrongly come to the conclusion and wrongly convicted the accused. 34. We have carefully and cautiously gone through the judgment of the trial court. The trial Court has only relied upon the examination-in-chief and has not looked into the evidence which has been brought during the course of cross examination. It has forgotten the definition of the 'evidence' that it includes the examination-in-chief, cross-examination, reexamination. The witnesses must withstand to the cross-examination. Then only the evidence of that witness has to be relied upon and could be accepted. If such examination-in-chief has been shaken and credibility of the witnesses crumbled during cross examination, then under such circumstances, the trial Court ought to have given the benefit of doubt to the accused. In that light, the trial Court has committed grave error in passing the impugned judgment. In that light, the same is liable to be set aside. 35. Taking into consideration the above said facts and circumstance, we pass the following order: ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by the learned II Additional District and Sessions Judge, Bagalkot, in Sessions Case No.57/2011 dated 20.12.2016 is set aside and the appellant accused is acquitted of al l the charges levelled against him. The bail bond and surety bond stood cancel led. If any fine amount has been deposited, the same may be refunded to the appellant-accused on proper identification and acknowledgement. We place on record the able assistance given to the learned counsel Sri. Ananth Hegde and Addl. SPP. Sri. V. M. Bankar. The Registry is directed to send back the LCR to the Trial Court.