JUDGMENT : This appeal is preferred by the appellant challenging the judgment of conviction dated 07.12.2016 and the order of sentence dated 15.12.2016 passed by the II Additional District & Sessions Judge, Kodagu Madikeri sitting at Virajpet (hereinafter referred to as ‘the trial court’) in S.C.No.28/2015 wherein the appellant/accused has been found guilty and convicted for the offence punishable under Section 302 of IPC and sentenced to undergo rigorous life imprisonment and payment of fine of Rs.30,000/and in default, the appellant shall undergo simple imprisonment for a period of two years for the offence punishable under Section 302 of IPC. 2. We have heard the arguments of learned counsel for the appellant and the learned High Court Government Pleader for the respondent State. 3. The rankings of the parties before the trial court are retained for the sake of convenience. 4. Before adverting to the arguments addressed by the learned counsel for the appellant and the learned HCGP, it is worth to mention the factual matrix of the case of the prosecution. 5. The case of the prosecution in a nut shell is that the appellant/accused and his wife Chandri @ Chandrika were residing in their house at Garikeri. That on 03.03.2002, at 9.30 p.m., there was a quarrel between them and the accused with an intention to cause her death pressed her neck. Thereafter, he has fled away from the spot. It is further case of the prosecution that after hearing the noise, CW1 to CW4 came to their house and before trying to caught hold the accused, he went away. Therefore, PW.1 shifted the deceased to the hospital and on the way she died. Later, a complaint came to be filed before Gonikoppa Police Station and the police, after the investigation, filed a charge sheet that the accused was absconding. Thereafter, the accused was secured and he has been committed to the Court of Sessions for trial. Accordingly, the trial court framed charges against the accused for the offence punishable under Section 302 of IPC. He has pleaded not guilty and claims to be tried by the trial court. 6. The case of the prosecution is that the prosecution examined in all six witnesses as PW.1 to PW.6 and got marked the documents as per Exs.P1 to P7. After completion of the evidence, the statement of the accused under Section 313 of Cr.P.C. has been recorded. 6. The case of the prosecution is that the prosecution examined in all six witnesses as PW.1 to PW.6 and got marked the documents as per Exs.P1 to P7. After completion of the evidence, the statement of the accused under Section 313 of Cr.P.C. has been recorded. The incriminating evidence led against the accused has been denied by him. However, in the reply, he has stated that the deceased had been with one Subramanya and said Subramanya assaulted her and sent out. Thereafter, the incident was occurred. Considering the findings, the trial court found the accused guilty and convicted for the alleged offence stated supra. 7. Learned counsel for the appellant/accused contended that the judgment of the trial court suffers from legality. That there is no eye witnesses to the incident. The four witnesses, who have been examined, are all alleged to be eye witnesses, but there was a lot of contradiction between them. That the presence of these witnesses creates a doubt and if at all they were present at the time of incident, nothing prevented them from rescuing the deceased or preventing the accused from committing the offence. That the evidence of PW.4 clearly shows that they all came to the house and his mother was found dead and the accused was not present. Therefore, they presume that the accused might have committed homicidal death. That itself was not a ground for convicting the accused. Further, learned counsel contended that all the witnesses cited were not examined. PW5 is only a Stree Shakti employee who was a Mahazar witness and PW6 is the Police Constable who transmitted the FIR. The prosecution has not examined the Investigating Officer, who registered the FIR, conducted investigation and filed the charge sheet against the accused. Even after the arrest of the accused, the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Merely the circumstance that the deceased was found dead in the house and the accused was absent itself is not a ground to convict the accused and hence, the learned counsel prayed for allowing the writ appeal and acquitting the accused. 8. Merely the circumstance that the deceased was found dead in the house and the accused was absent itself is not a ground to convict the accused and hence, the learned counsel prayed for allowing the writ appeal and acquitting the accused. 8. Per contra, learned HCGP for the respondentState countered his arguments and contended that PW.1 is none other than the brother of the deceased and PW.4 is the son of the deceased, who have categorically stated that the accused pressed the neck of the deceased. PW.3 also supported the evidence of PW.1 & PW.4. Therefore, this evidence is sufficient to prove guilt of the accused to punish him under Section 302 of IPC. He further contended that the post mortem examination report and other panchanama were marked with the consent of the accused wherein the postmortem report clearly shows that the cause of the death was due to asphyxia and suffocation due to the munifocation as a result of forcible pressure over nose and neck. This aspect has not been denied by the accused. On the other hand, it was admitted by the counsel for the accused in the trial court. The admitted facts need not be proved. Therefore, the prosecution is successful in establishing the guilt of the accused before the trial court. Therefore, the judgment of the trial court calls for no interference. Hence, he prayed for dismissing the appeal. 9. Upon hearing the arguments and on perusal of the records, it is necessary to have a cursory look at the evidence adduced by the prosecution. 10. PW.1 M.Sunil, who is said to be the brother of the deceased, has stated that the accused and the deceased stayed together in Gonikoppa. About 14 years back, they used to stay in Gonikoppa. He and his wife were also residing in the neighboring house. There was a quarrel between the accused and the deceased in their house. After hearing the noise, himself, his wife and son of the deceased went to the house of the accused. They found the accused in the kitchen pressing the neck of the deceased and ran away from the spot. The deceased fell down. Even prior to that, the accused assaulted the deceased all over her body with the help of a stick. The accused always used to pick up quarrel with the deceased for no reason and used to come home drunk. The deceased fell down. Even prior to that, the accused assaulted the deceased all over her body with the help of a stick. The accused always used to pick up quarrel with the deceased for no reason and used to come home drunk. Thereafter, he shifted the deceased to the hospital and on the way she died. Thereafter, a complaint came to be lodged as per Ex.P1. He also identifies the complaint. After the post mortem examination, he received the body. However, he has identified the accused before the Court. 11. PW.2 – Sunil, who is the son of the deceased, who was born to first husband of the deceased, also deposes in his evidence that about 14 years back, himself, his brother and the accused and the deceased mother were used to stay in Garikeri Paisary. PW.1 and his wife were neighbors to their house. The accused came to home by drunk and picked up quarrel with his mother often for no reason. About 14 years back, at about 9.30 p.m., there was quarrel going on in between the accused and the deceased in their house. That he was sleeping in the room located by the side of their house. After hearing the noise, he came to the house and on his request CW.1 to CW.4 also came to the house. When he came to the house, he found his mother lying on the ground and the accused was not present in the house and he found a black mark over the neck and therefore, he presumes the accused might have pressed her neck and ran away from the spot. Nothing more has happened in his presence. In the cross examination, he has admitted that he has given statement before the police that he witnessed the incident when the accused was pressing the neck of his mother. 12. PW.3 – Renuka, who is the wife of PW.1, has deposed that the accused used to come home and pick quarrel with the deceased. About 14 years back, at 9.30 pm., a quarrel took place between the accused and the deceased, at that time, herself, PW.1, CW.3 & CW.4 went to the house of the accused, pacified the quarrel and came back to their house. However, a quarrel began between the accused and the deceased once again. About 14 years back, at 9.30 pm., a quarrel took place between the accused and the deceased, at that time, herself, PW.1, CW.3 & CW.4 went to the house of the accused, pacified the quarrel and came back to their house. However, a quarrel began between the accused and the deceased once again. Therefore, they went to the house of the deceased once again and tried to pacify the quarrel. In the meanwhile, the deceased went to kitchen. The accused followed the deceased to the kitchen and pressed her neck, due to which, the deceased fell on the ground. Then some people tried to caught hold of the accused but the accused ran away. Thereafter, the deceased was shifted to the hospital in the autorickshaw and Chandri died on the way. 13. PW4. Aruna, who is the son of the accused and the deceased, also deposed that, about 12 to 13 years back at 9.30 p.m., his father came to the house and a quarrel took place between his parents. PW.4, PW.1, PW.2 and CW.8 tried to pacify the quarrel. His father was holding his mother’s hairs and was dashing her towards the wall. Thereafter, his father pressed the neck of the deceased and his mother died. After the incident, he has not seen his father at any place. 14. PW.5 – Pushpa, a member of Stree Shakti Sangha deposed that after the death of the deceased, she came to the house and came to know that the accused pressed the neck of the deceased and killed Chandri. She affixed her signature on the Inquest Mahazar Ex.P3 and her signature is marked as Ex.P.3(a). She is only Inquest panch witness and her evidence is not seriously disputed. 15. PW.6 K.N.Kunniram, a retired Head Constable stated that on 04.03.2002, he was entrusted with the duty of transmitting FIR in Crime No.37 of 2002. He has handed over the same to the Court at 11.45 a.m. He has identified the FIR as per Ex.P5 who is only a formal witness. 16. The prosecution has not examined any other witness. It is pertinent to note that the counsel for the accused, who conducted the trial before the trial court, has given no objection to mark Ex.P6 post mortem examination report and Ex.P7 – Doctor’s opinion. Therefore, the prosecution has not chosen to examine the panch witness, the Doctor. 17. 16. The prosecution has not examined any other witness. It is pertinent to note that the counsel for the accused, who conducted the trial before the trial court, has given no objection to mark Ex.P6 post mortem examination report and Ex.P7 – Doctor’s opinion. Therefore, the prosecution has not chosen to examine the panch witness, the Doctor. 17. After carefully scrutinizing the evidence of the prosecution and the cross-examination made by the counsel for the accused and on appreciation of the evidence of PW.1, it can be gathered that the deceased Chandri was already married and thereafter, she has married this accused and they lived together as husband and wife and out of their wedlock, PW4 Aruna was born to them. Ex.P6 – Post mortem examination report establishes that the cause of the death was due to asphyxia and suffocation due to munifocation as a result of forcible pressure over nose and neck. Ex.P6 establishes the deceased met with a homicidal death. Ex.P7 the opinion of the Doctor would show that the injuries found on the nose and neck of the deceased have been caused by using the hands. This document is also not disputed by the counsel appearing for the accused. Hence, the prosecution is successful in establishing that the deceased Chandri met with a homicidal death. However, the question is as to whether the accused is the culprit, who committed the murder of the deceased by pressing the neck. 18. On perusal of evidence of PW.1, it is stated that there was a quarrel between the accused and the deceased and after hearing the noise, himself, his wife PW.3, PW.2 & PW.4, the sons of the deceased went to the house of the deceased. They found that the deceased and accused were in the kitchen and accused has pressed the neck of the deceased and ran away from the spot. In the cross examination, he has stated that the distance between his house and the house of the accused was around 200 ft. There were 25 houses situated around the house of the accused. Baputti, Devid, Appu, Ashoka, Ibrahim, Nanda, Gopal, Krishna and Krishnappa houses were situated nearby the accused. In the cross examination, he has stated that the distance between his house and the house of the accused was around 200 ft. There were 25 houses situated around the house of the accused. Baputti, Devid, Appu, Ashoka, Ibrahim, Nanda, Gopal, Krishna and Krishnappa houses were situated nearby the accused. PW.1 has further stated that he used to leave the house at 7.30 a.m. and return back at 8.30 p.m. Further, it is stated that after hearing the cry of his sister, he came to the house and no neighbors came near the house at that time. PW.2, son of the deceased, also reiterated the same. There was a quarrel between the deceased and the accused. That he found his mother was lying on the ground and the accused was not present and after seeing the black mark over the neck, he presumed the accused might have pressed her neck and ran away. But, in the cross-examination, he has given statement to the police he has witnessed the incident. 19. On perusal of the evidence of PW1 and PW2, there is a contradiction between them as this witness has stated that he came to the house, at that time, his mother was found dead and the accused was not present. PW.1 has stated that the accused was pressing neck of the deceased and thereafter, he ran away. PW.3, wife of PW1, has also stated that there was quarrel prior to the death and after pacifying them all came back to their house and once again quarrel took place. In the meanwhile, the deceased went to the kitchen and the accused followed her to the kitchen and pressed her neck. The deceased fell down and thereafter the accused ran away and somebody tried to caught hold of the accused. But this witness has not stated that PW.3, her husband and sons of the deceased tried to caught hold of the accused. 20. PW.4 – Aruna, son of the accused and the deceased, has stated that the accused used to quarrel with the deceased by consuming liquor for no reason and on the date of the incident at 9.30 p.m., the accused came to home by fully drunk and quarreled with his mother. 20. PW.4 – Aruna, son of the accused and the deceased, has stated that the accused used to quarrel with the deceased by consuming liquor for no reason and on the date of the incident at 9.30 p.m., the accused came to home by fully drunk and quarreled with his mother. PW.4, PW.1 and PW.2 pacified the quarrel and his father was holding the hair of his mother and dashed towards the wall and thereafter pressed the neck of the deceased and due to which, his mother was dead. After the incident, he has not seen his father. On perusal of the evidence, he has given a different version that before pressing neck of the deceased, his father dashed his mother’s head towards the wall by holding hairs. To corroborate this evidence Ex.P6 post mortem examination report does not show any injury on the head of the deceased. On the other hand, except the mark over the neck and that the deceased Chandri died due to pressure over the neck and nose, there is no other injury found on the deceased. PW.4 has also stated in the crossexamination that after pacifying the quarrel, at 9.30 p.m., he also went to the house of the deceased for sleeping. At 12.00 midnight, he heard big sound and they found the dead body of his mother. At that time, his father was not found in the spot. This also corroborates the evidence of PW.2, brother of PW.4, that when they went to see their mother, she was already found dead and the accused was not there. This aspect has not been reexamined by the prosecution. Further, this witness has further stated at 12.00 midnight there was no electricity supply at the time of death of his mother. The Investigating Officer has also not obtained any certificate from the electricity office in this behalf. Apart from that, on perusal of four witnesses namely, PW.1 brother of the deceased, PW.2 & 4 sons of the deceased and PW.3 sisterinlaw, they have given a different version at different stages. If PWs.1, 2 and 4 were really present at the spot at the time of the incident, they could have prevented the accused from committing the murder by pressing the neck of the deceased and they could have got him redhanded while committing the murder. If PWs.1, 2 and 4 were really present at the spot at the time of the incident, they could have prevented the accused from committing the murder by pressing the neck of the deceased and they could have got him redhanded while committing the murder. Here, in this case, by the time they all came and saw, the deceased was lying down unconscious/dead. The prosecution witnesses have not explained as to why they kept quiet without preventing the accused from pressing the neck of the deceased in front of them. When there is nonexplanation of the same by the prosecution witnesses, the Court can draw adverse inference against the prosecution witnesses that they were not present or their presence is doubtful at the spot or at the time of the alleged commission of offence by the accused. The evidence of the witnesses clearly goes to show that they came to know about the death of the deceased later. Therefore, they presumed that the accused might have committed the murder. That apart, it is the case of the prosecution that the accused ran away from the spot and he was secured by arrest only after filing of the charge sheet. It appears that the Magistrate recorded the statement under Section 299 of Cr.P.C. and examined two witnesses. After securing the presence of the accused, the prosecution is not able to examine the Police Officer who investigated the case and filed the charge sheet before the Court by collecting all materials. Absolutely, there is no connecting evidence to prove that the accused himself committed the murder of the accused by pressing neck with an intention to kill her. However, we are aware of the fact that the accused and deceased lived together prior to the death of the deceased. It is the duty of the accused to explain what happened in the house on that day as the deceased was found dead and the absence of the accused in the circumstances goes against the accused that the accused might have committed the murder of his wife. It is well settled that suspicion however grave may be, that cannot find a place of proof. Therefore, we hold that the prosecution is not able to prove that the accused himself committed the murder of the deceased. It is well settled that suspicion however grave may be, that cannot find a place of proof. Therefore, we hold that the prosecution is not able to prove that the accused himself committed the murder of the deceased. On the other hand, PWs.2 & 4 have stated that his mother was found dead and his father was not seen. Therefore, they presumed that the accused might have committed the murder. Mere presumption cannot be sufficient to convict the accused for the offence under Section 302 of IPC. The initial burden is on the prosecution to prove the case against the accused and discharge its burden. The burden of proof never shifts on the accused when the prosecution itself fails to discharge its burden. Once, the prosecution is successful in proving the case against the accused, the burden shifts on the accused to explain as to what had happened to the deceased on that date. 21. The prosecution utterly failed to prove that the accused and deceased were staying together just before the time of the incident or on the date of incident. But the deceased was found dead, later these witnesses came to know about the death and then they shifted the deceased to the hospital, where it was stated that the deceased brought dead. Even on perusal of the Post Mortem Report, the age of the injuries were not mentioned and the body was almost at a decomposing stage. Therefore, the prosecution story cannot be acceptable that the accused throttled and committed the murder of the deceased. 22. The evidence based on the prosecution is eye witnesses but not on the circumstance evidence. It is well settled that in the circumstance evidence all the links required to be proved. Admittedly, there is no evidence collected by the Investigating Officer. It is well settled that non-examination of the Investigating Officer is not fatal to the prosecution. The Investigating Officer has not collected any materials and has not produced any material before the Court and the Investigating Officer was not examined to prove the case against the accused beyond reasonable doubt. Therefore, the benefit of doubt shall have to be extended to the accused. On perusal of the judgment and findings of the trial court, the trial court has not at all appreciated the evidence and considered the examination, cross-examination and admission made by the witnesses. Therefore, the benefit of doubt shall have to be extended to the accused. On perusal of the judgment and findings of the trial court, the trial court has not at all appreciated the evidence and considered the examination, cross-examination and admission made by the witnesses. The trial court just held that the evidence of the witnesses are not impeached and without any proper and appreciation of the evidence held the accused guilty which is not correct. Though the trial court gave a legal aid Advocate for the defence, the accused could not have been properly defended by the counsel. Nevertheless, the prosecution is required to prove the case beyond its reasonable doubt. Therefore, the benefit of doubt has to be extended. The judgment of the trial court requires to be set aside. The appeal is hereby allowed. Consequently, the judgment of conviction dated 07.12.2016 and order of sentence dated 15.12.2016 passed by the II Additional District and Sessions Judge, KodaguMadikeri sitting at Virajpet in Sessions Case No.28/2015 is set aside. The accused is stated to be in judicial custody. The accused namely, Harijanara Kumara is acquitted for the offence under Section 302 of IPC. He shall be set at liberty forthwith, if he is not required in any other case. Registry shall forthwith communicate the operative portion of this judgment to the concerned Superintendent of Jail Authorities where the accused is lodged, for compliance.