JUDGMENT : M. Satyanarayana Murthy, J. 1. Accused No. 1-Devarla Murali in Sessions Case No. 236 of 2013 on the file of III Additional District and Sessions Judge, Tirupati, preferred this criminal appeal under Section 374(2) Criminal Procedure Code (for short "Cr.P.C."), challenging the conviction and sentence passed in calendar and judgment dated 9.12.2014, whereby accused No. 1 was found guilty for the offence punishable under Section 302 of Indian Penal Code (for short "I.P.C."), convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 1,000/- in default to undergo simple imprisonment for a period of three months, while acquitting accused Nos. 2 to 5 for the offence punishable under Section 302 read with 34 of I.P.C. and accused Nos. 1 to 5 for the offence punishable under Sections 120-B and 404 of IPC. 2. Appellant is the accused No. 1, who allegedly approached Thanga Perianal on 23.10.2012 at 6.30 p.m., to engage Innova Car on hire to go to Kanipakam. Thereupon, Thanga Perianal took accused No. 1 to PW 2-A Venkatesh, who informed the accused No. 1 that hire charges of the car is Rs. 4,000/-, thereupon, the appellant-accused No. 1 informed PW 2 that he would pay hire charges at Tirupati and they would come back at 11.00 p.m., during night. On the way, accused No. 1 had a talk with his friend accused No. 3 and asked him to be present at Municipal Park, Tirupati while informing him that he is coming in a car. On 23.10.2012 at about 7.30 p.m., accused No. 1 reached Municipal Park, Tirupati in Innova Car bearing No. AP 03 AT 9567 driven by Thanga Perumal. Accused No. 1 picked up accused No. 3 and informed that they are going to Kanipakam and return during the same day night. Thereafter, accused Nos. 1 and 3 went to Mangalam Auto Stand and picked up accused No. 2. Accused No. 1 took a rope from the auto of accused No. 2 and kept in his pocket. From there accused Nos. 1 to 3 proceeded to Rajiv Nagar Colony in Innova Car bearing No. AP 03 AT 9567 and picked up accused Nos. 4 and 5. Accused Nos. 1 to 5 left Tirupati at about 9.00 p.m., in Innova Car bearing No. AP 03 AT 9567 driven by Thanga Perumal, reached Kanipakam at about 10.30 p.m. on 23.10.2012. 1 to 3 proceeded to Rajiv Nagar Colony in Innova Car bearing No. AP 03 AT 9567 and picked up accused Nos. 4 and 5. Accused Nos. 1 to 5 left Tirupati at about 9.00 p.m., in Innova Car bearing No. AP 03 AT 9567 driven by Thanga Perumal, reached Kanipakam at about 10.30 p.m. on 23.10.2012. Accused No. 1 asked Thanga Perumal to be present at the stand keeping the vehicle there itself. Accused No. 1 arranged food to accused Nos. 2 to 5 in a hotel. After completion of dinner, accused No. 1 informed accused Nos. 2 to 5 that either by killing the driver of Innova Car bearing No. AP 03 AT 9567 or by doing something, they would takeaway the car and sell it for Rs. 5,00,000/- and each of them can get Rs. 1,00,000/- Initially, accused Nos. 2 to 5 did not agree, but accused No. 1 convinced and made them to agree. In pursuance of their plan, all the accused including accused No. 1/appellant herein came to Thanga Perumal at about 12.30 on the intervening night of 23/24.10.2012, informed that they have to go to accused No. 1's village enroute, talk to his mother and then go to Tirupati, where they would pay hire charges. As Thanga Perumal was sleeping, accused No. 1 asked Thanga Perumal to sit in the middle seat and drove the Innova Car bearing No. AP 03 AT 9567 to Udamalakurthi stream alongwith accused Nos. 2 to 5 at about 3.30 a.m. and Thanga Perumal was in sleep. Accused No. 1 gave rope to accused No. 2 and asked him to tighten it around the neck of Thanga Perumal and drag him down. Accordingly, accused No. 2 put the rope to the neck of Thanga Perumal and pulled him down. Then Thanga Perumal shook his legs and hands. At that time, accused No. 1 asked accused Nos. 3 to 5 to catch hold Thanga Perumal tightly and bring him down. Accused No. 1 also got down from the driving seat of car and all of them dragged Thanga Perumal with the help headlights of the car and threw him down. Accused No. 2 tightened the rope tied to the neck of Thanga Perumal. 3 to 5 to catch hold Thanga Perumal tightly and bring him down. Accused No. 1 also got down from the driving seat of car and all of them dragged Thanga Perumal with the help headlights of the car and threw him down. Accused No. 2 tightened the rope tied to the neck of Thanga Perumal. Accused No. 1 picked up a big stone and threw it on the testicles of Thanga Perumal, again accused No. 1 threw the same stone on the head of Thanga Perumal. On receipt of injuries, Thanga Perumal struggled for life, thereupon accused No. 1 emasculated Thanga Perumal and killed him. Thereafter, accused Nos. 1 to 5 carried the body of Thanga Perumal to a vacant place in the rear portion of the car and proceeded to some distance on Penumur Road, threw away the dead body of Thanga Perumal by the side of road. Accused No. 1 threw away rope there itself. Accused Nos. 2 to 5 took driving license and cell phone of Thanga Perumal, which were available with him and kept them with accused No. 1. Thereafter, accused Nos. 1 to 5 took Innova Car bearing No. AP 03 AT 9567 to Bangalore. 3. On the way to Bangalore, they washed Innova Car bearing No. AP 03 AT 9567 and removed original number plates and kept them in the car and fixed number plates having number AP 29 AS 638 to its front and rear side, which were already brought with them. All the accused tried to sell away the Innova Car bearing No. AP 03 AT 9567 at Majestic Car Stand, Bangalore and also near Poonamalli Road. But nobody came forward to purchase Innova Car bearing No. AP 03 AT 9567. Then accused No. 1 informed accused Nos. 2 to 5 that Innova Car bearing No. AP 03 AT 9567 can be sold at Tirupati itself to Red sandal smugglers, thereupon all the accused came to Tirupati on 7.11.2012. Accused No. 1 dropped accused No. 3 at Tirupati Park and asked him to bring an amount of Rs. 10,000/- as hand loan from his Mason and come early to his village. Accused No. 1 left Tirupati alongwith accused Nos. Accused No. 1 dropped accused No. 3 at Tirupati Park and asked him to bring an amount of Rs. 10,000/- as hand loan from his Mason and come early to his village. Accused No. 1 left Tirupati alongwith accused Nos. 2, 4 and 5 in Innova Car bearing No. AP 03 AT 9567, reached Mango garden of Babu Reddy situated close to his village Voddepalle at about 5.00 a.m. and kept the car by the side of the mango garden. Accused No. 1 asked accused Nos. 2, 4 and 5 to be present at car and went to his house and brought food to them. Thus, all the accused committed murder of Thanga Perumal, driver of the Innova Car bearing No. AP 03 AT 9567. 4. PW 1-G. Venkatarama Naidu lodged Ex. Pl report dated 24.10.2012 at 5.00 p.m., with the police. The same was registered as a case in Crime No. 58 of 2012 of S.R. Puram by PW 14-M Ravi Naik and issued Ex. P21-F.I.R. PW 15-D. Kondaiah, Inspector of Police, took up investigation, visited scene of offence. The scene of offence is near the field of PW 1 in D.K. Marrepallil Village by the side of Penumur-Devalampeta Road, where PW 15-Investigating Officer found unknown male dead body aged about 22 years and also found a nylon rope at the scene of offence. On 25.10.2012 at 10.30 am, he observed the scene of offence in the presence of PW 10-D.K. Dillaiah, T. Somasekhar, P. Ramakrishna Pillai and got prepared Ex. P10-scene of offence panchanama, prepared Ex. P22 rough sketch of the scene of offence. PW 15-Investigating Officer conducted inquest over the dead body on 25.10.2012 from 08.00 a.m. to 11.00 a.m., in the presence of PW 10-D.K. Dillaiah, T. Somasekhar, P. Ramakrishna Pillai. Ex. P9 is the inquest report. During inquest, he examined PW 1-G. Venkatarama Naidu and LW2-Adikesavulu Naidu, seized MO1-rope, got photographed the dead body. Ex. P2 is the positive photos of the dead body with C.D. Later, PW 15-Investigating Officer forwarded the dead body to Government Head Quarters Hospital, Chittoor and got published the photos of the dead body in local newspapers. During inquest, he examined PW 1-G. Venkatarama Naidu and LW2-Adikesavulu Naidu, seized MO1-rope, got photographed the dead body. Ex. P2 is the positive photos of the dead body with C.D. Later, PW 15-Investigating Officer forwarded the dead body to Government Head Quarters Hospital, Chittoor and got published the photos of the dead body in local newspapers. On 26.10.2012 at about 9.00 a.m. PW 15-Investigating Officer received a phone call from PW 2-A Venkatesh stating that the photo of the dead body published in Sakshi Daily is that of his driver of Innova Car bearing No. AP 03 AT 9567 by name Thanga Perumal and on instructions of PW 15-Investigatmg Officer, PW 2 came to Government Head Quarters Hospital, Chittoor and identified the dead body as that of Thanga Perumal. PW 15-Investigating Officer examined PW 2-A Venkatesh and PW 3-Perumal Munikrishna and recorded their statements. PW 2-A. Venkatesh furnished the mobile number of the person, who took his Innova Car bearing No. AP 03 AT 9567 on hire on 23.10.2012 evening, the said mobile number is 9949994230. On the same day at 4.00 p.m. PW 4-P. Laila, mother of Thanga Perumal, came to the hospital and identified the dead body as that of her son Thanga Perumal. On the requisition of PW 15-Investigating Officer, PW 11-Doctor Kishore conducted post-mortem examination on the dead body, issued Ex. P15-post-mortem report and Ex. P17-Final opinion opining that Thanga Perumal died due to mechanical asphyxia as a result of strangulation by rope and the time of death is 24 to 36 hours prior to his post-mortem examination. 5. On 27.10.2012, PW 15-Investigating Officer gave requisition to Nodal Officer to give details of the owner and call details pertaining to Mobile Number 9949994230 and received details that the owner of the SIM card is M. Naga Krishna, resident of Satyanarayanapuram, Tirupati and he proceeded to Tirupati and recorded his statement, wherein he stated that the SIM card has been given to accused No. 3, who is working under him. 6. On 8.11.2012 at 7.00 a.m. PW 15-invesngating Officer received a phone call from PW 5-M Naga Krishna about the presence of accused No. 3, immediately he secured the presence of PW 13-I Subramanyam, LW17-B. Chengalrayudu and arrested accused No. 3, interrogated him and recorded his confessional statement. Ex. P18 is the admissible portion in the confessional statement of accused No. 3. Ex. P18 is the admissible portion in the confessional statement of accused No. 3. Accused No. 3 took PW 15-Investigating Officer to the Mango Garden of Babu Reddy, which is situated by the side of Chillamakulapalle Village and shown accused Nos. 1, 2, 4 and 5. PW 15-Investigating Officer arrested accused Nos. 1, 2, 4 and 5 and recorded their confessional statement. Ex. P19 is the relevant portion in the confession statement of accused Nos. 1, 2, 4 and 5. Under the cover of Ex. P19, PW 15-Investigating Officer seized MO8-Black colour Samsung Mobile Phone of deceased Thanga Perumal, MO9-Samsung phone of accused No. 1, MO12-Four SIM cards of accused No. 1, MO13-Driving license of Thanga Perumal, MO14-cash of Rs. 300/- (100 X 3) and also seized MO4-Innova Car bearing No. AP 03 AT 9567, MOs. 5 to 7-number plates. Accused Nos. 1 to 5 took PW 15-Investigating Officer to the place where they allegedly caused the death of Thanga Perumal, he examined the scene of offence, prepared Ex. P20 scene of offence panchanama, Ex. P25 rough sketch of scene of offence. Later, PW 15-Investigating Officer, forwarded the viscera preserved by Medical Officer, Government Head Quarters Hospital, Chittoor to RFSL for analysis and report. On 4.12.2012, PW 15-Investigating Officer filed requisition before Judicial First Class Magistrate to conduct test identification parade of accused No. 1 by PW 2-Venkatesh; PW 11-Dr. S M.D. Fazulullah, Judicial First Class Magistrate, Nagari conducted test identification of accused No. 1 under Ex. P13-- Test Identification proceedings. On 27.2.2013, PW 15-Investigating Officer received Ex. P16-R.F.S.L. report and filed charge-sheet for the offence punishable under Sections 302 and 379 read with 34 of I.P.C., before the Judicial First Class Magistrate, Puttur, who in turn registered the same as P.R.C. No. 09 of 2013 and after complying with Section 207 Cr.P.C., committed the case to the Sessions Division under Section 209 of Cr.P.C. as the offence punishable under Section 302 of I.P.C., is exclusively triable by Court of Sessions. On committal, learned Principal Sessions Judge registered the same as SC No. 236 of 2013 and made over to the III Additional District and Sessions Judge, Tirupati, to try and dispose of the same in accordance with law. 7. On committal, learned Principal Sessions Judge registered the same as SC No. 236 of 2013 and made over to the III Additional District and Sessions Judge, Tirupati, to try and dispose of the same in accordance with law. 7. Upon hearing, the learned Additional Public Prosecutor and the learned Counsel for the accused, the Sessions Court framed the charges for the offences punishable under Sections 120-B, 302 and 404 against accused No. 1, under Sections 120-B, 302 read with 34 and 404 of I.P.C., against accused Nos. 2 to 5, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 8. During trial, the prosecution has examined PWs. 1 to 15 and got marked Exs. P1 to P27 and MOs. 1 to 19 to substantiate its case. After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., explained the incriminating material that appeared against them in the testimony of prosecution witnesses, but they denied the same and reported no defence. 9. Upon hearing argument of learned Additional Public Prosecutor and Defence Counsel, the Trial Court on appreciation of entire evidence, recorded certain findings while deciding the circumstances relied on by the prosecution to establish the guilt of the accused. The prosecution relied on as many as 8 circumstances, but the Trial Court recorded a finding that circumstance No. 3 was not proved by the prosecution. Similarly, a finding is recorded that the first link in the chain of circumstances is missing vide Paragraph No. 5 of the Trial Court judgment. The other few circumstances are held to be proved and recorded conviction against accused No. 1 only for the offence punishable under Section 302 of I.P.C., while acquitting accused Nos. 2 to 5 for the offence punishable under Section 302 read with 34 of I.P.C. The Trial Court also acquitted accused Nos. 1 to 5 for the offence punishable under Sections 120-B and 404 of I.P.C. 10. 2 to 5 for the offence punishable under Section 302 read with 34 of I.P.C. The Trial Court also acquitted accused Nos. 1 to 5 for the offence punishable under Sections 120-B and 404 of I.P.C. 10. Aggrieved by the conviction and sentence passed by the Court below against accused No. 1, he preferred the present appeal on various grounds, mainly contending that in the absence of any direct evidence, more particularly when the case is based on circumstantial evidence, it is the duty of the prosecution to establish each and every link in the chain of circumstances, but the prosecution failed to prove all the circumstances relied on by it as held by the Trial Court itself, but the Trial Court failed to appreciate evidence in proper perspective. 11. It is also specifically contended that the Test Identification parade held by PW 11--Judicial First Class Magistrate is not in accordance with law and it is contrary to the procedure prescribed under Rule 34 of Criminal Rules of Practice. The evidence of PW 2 is not worthy of credence as there is no possibility to identify all the accused; when the confession of accused was disbelieved by the Trial Court, conviction of accused No. 1 based on such confession is a serious illegality committed by the Trial Court. 12. The Trial Court on an erroneous appreciation of the evidence, based on last seen theory, convicted the accused No. 1 for the offence punishable under Section 302 of I.P.C. though mere proof that the deceased was last seen in the company of the accused is not sufficient to record conviction, in the absence of proof of proximity of time between the death and last seen together, prayed to set aside the conviction and sentence and acquit the appellant-accused No. 1. 13. During hearing, Sri D. Kodandarami Reddy, learned Counsel for the appellant--accused No. 1, would contend that when the case of the prosecution is totally based on circumstantial evidence, it is the obligation of the prosecution to prove each and every link in the chain of circumstances directly pointing out the complicity of the accused without giving any scope for any other inference, such proved circumstances must be inconsistent with the innocence of the accused for the charge. Here, the Trial Court itself recorded a specific finding about the failure of the prosecution in proving certain circumstances, but recorded conviction erroneously. Here, the Trial Court itself recorded a specific finding about the failure of the prosecution in proving certain circumstances, but recorded conviction erroneously. Learned Counsel for the appellant-accused No. 1 further contended that the Innova Car bearing No. AP 03 AT 9567 is a private vehicle, not a maxicab or taxi. PW 2 also admitted that he is not maintaining any record showing hire particulars of the car, in the absence of evidence as to hiring of the car to either of the accused or to any other person, identification of the appellant-accused No. 1 by PW 2 is artificial. Therefore, based on such evidence, the Court cannot find the accused No. 1 guilty for the offence punishable under Section 302 of I.P.C. Added to that, the test identification parade was not conducted strictly adhering to Rule 34 of the Criminal Rules of Practice. 14. Learned Counsel for the appellant-accused No. 1 further submitted that the confessional statement of accused leading to discovery of material objects though admissible in evidence under Section 27 of the Evidence Act, the confession made by all the accused at a time is not believable as there is no possibility of making such confession in the same language in chorus. Hence, recovery of vehicle Innova Car bearing No. AP 03 AT 9567 and visiting scene of offence based on confession of accused No. 3, who is acquitted for the charges framed against him, is not believable. If recovery of Innova Car bearing No. AP 03 AT 9567 and other material objects in pursuance of the confession leading to discovery is rejected, there is absolutely no evidence to establish the guilt of the accused. Mere proof of Thanga Perumal, driver of Innova Car bearing No. AP 03 AT 9567 was alive at about 12.00 midnight is not sufficient to hold the accused guilty based on last seen theory for the reason that the time of death was 24 to 36 hours prior to postmortem examination, hence, death might have occurred at 2.30 a.m., on 24.10.2012. Hence, finding accused No. 1 guilty for the offence punishable under Section 302 of I.P.C., based on last seen theory is an error as it was not proximate to the time of death. Hence, finding accused No. 1 guilty for the offence punishable under Section 302 of I.P.C., based on last seen theory is an error as it was not proximate to the time of death. Finally, requested to set aside the conviction and sentence passed against the appellant-accused No. 1 finding him not guilty for the offence punishable under Section 302 of I.P.C. 15. Sri Dushyanth Reddy, learned Additional Public Prosecutor, supported the case of the prosecution in toto while highlighting the confessional statement leading to discovery and recovery of vehicle, observation of scene of offence is sufficient to rope the accused with the grave offence punishable under Section 302 of I.P.C. and also pointed out that Thanga Perumal was last seen in the company of accused No. 1 alive and based on such last seen theory, the Trial Court recorded a finding against accused No. 1, and the said finding cannot be disturbed even after reappraisal of evidence and requested to dismiss the appeal while confirming the conviction and sentence recorded against the appellant-accused No. 1. 16. Considering rival contentions, perusing the material available on record, the point that arises for consideration is: (1) Whether the appellant-accused No. 1 committed murder of Thanga Perumal for gain knowing that the injuries caused by him are sufficient to cause death in the ordinary course of events? If not, whether the conviction and sentence recorded by the Trial Court against the accused No. 1 for the offence punishable under Section 302 of I.P.C., be sustained? 17. Before deciding the point, it is appropriate to advert to the scope of jurisdiction of the High Court under Section 374 of Cr.P.C., which enables the Court to re-appraise the entire evidence. 18. Section 374 Cr.P.C., conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this Court while exercising power under Section 374(2) Cr.P.C., is bound to reappraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e., accused and the respondent, unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate Court, while sitting in appeal against the judgment of the Trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper reassessment to arrive at the conclusion is imperative in a criminal appeal. That is fee quality of exercise which is expected of the appellate Court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide : Kamlesh Prabhudas Tanna and another v. State of Gujarat, (2013) 15 SCC 263 ). Keeping the scope of Section 374(2) Cr.P.C., we would like to re-appreciate entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below. Point: 19. The case of the prosecution is totally based on circumstantial evidence. The Trial Court found that the prosecution failed to prove the 2 circumstances out of 8 circumstances and no finding was recorded on one circumstance relied on by the prosecution. 20. When the case is based on circumstantial evidence, burden of proof is always on the prosecution to prove all the circumstances from which conclusion of guilt is to be drawn must be fully established and the facts so established must be consistent with hypothesis of guilt of accused and any circumstance consistent with innocence of accused, he is entitled to benefit of doubt. (Vide Kishore Chand v. State of Himachal Pradesh, AIR 1990 SC 2140 ). 21. (Vide Kishore Chand v. State of Himachal Pradesh, AIR 1990 SC 2140 ). 21. The Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, circumstantial evidence held that, in a case of murder when the prosecution relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be tested by touch-stone of law relating to circumstantial evidence laid down by Supreme Court (vide: Syed Hakkim and another v. State, 2009 Cri. LJ 1891). 22. Similarly, in G. Parshwanath v. State of Karnataka, 2011 (1) ALD (Crl.) 233 (SC) : AIR 2010 SC 2914 , the Supreme Court is of the view, when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be fully established fully, individual chain of circumstances must be complete pointing out the guilt of accused, all proved facts must lead to inference of guilt of the accused alone and Court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts. In Rukia Begum v. State of Karnataka with Issaq Sait and another v. State of Karnataka with Nasreen v. State of Karnataka, AIR 2011 SC 1585 ; Jagroop Singh v. State of Punjab, Inspector of Police, Tamil Nadu v. Balaprasanna, 2009 (1) ALD (Crl.) 113 (SC) and Shaik Khadar Basha v. State of Andhra Pradesh, 2009 (1) ALD (Crl.) 859 (AP), the same principle was reiterated. 23. The Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra, 2006 (2) ALD (Crl.) 872 (SC) : (2006) 10 SCC 681 , wherein the Supreme Court held as follows: "In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. 23. The Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra, 2006 (2) ALD (Crl.) 872 (SC) : (2006) 10 SCC 681 , wherein the Supreme Court held as follows: "In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence." 24. Keeping in view the law laid down by the Apex Court (referred above), it is the duty of the Court to re-appreciate the entire evidence afresh to come to an independent conclusion, uninfluenced by the findings recorded by the Trial Court. Therefore, we would like to decide each circumstance based on the evidence available on record. 25. The first and foremost circumstance relied on by the prosecution is that accused No. 1 hiring of Innova Car bearing No. AP 03 AT 9567 from PW 2--4. Venkatesh on 23.10.2012 at 6.00 p.m. To prove the same, the prosecution examined PW 2-A. Venkatesh and his father PW7-A. Vellaswamy. PW 2 in his testimony clearly admitted that he is not the owner of the Innova Car bearing No. AP 03 AT 9567 allegedly hired to accused No. 1 and his father PW7-A. Vellaswamy is the owner of the vehicle. PW7-A. Vellaswamy, in his examination-in-chief, stated that he is the registered owner of the Innova Car bearing No. AP 03 AT 9567 and his son, PW 2-A. Venkatesh is maintaining the said car. At the same time, PW7-A. Vellaswamy admitted that his son, PW 2-A. Venkatesh informed that the person who took the car on hire killed Thanga Perianal and took away the Innova Car bearing No. AP 03 AT 9567, one week later police informed that the Innova Car bearing No. AP 03 AT 9567 is found in Puttur. At the same time, PW7-A. Vellaswamy admitted that his son, PW 2-A. Venkatesh informed that the person who took the car on hire killed Thanga Perianal and took away the Innova Car bearing No. AP 03 AT 9567, one week later police informed that the Innova Car bearing No. AP 03 AT 9567 is found in Puttur. He further admitted that MO4-Innova Car bearing No. AP 03 AT 9567 is a private car and it is not a maxicab in the first sentence of his cross-examination for accused No. 1. Therefore, PW 2-A Venkatesh, who allegedly hired the Innova Car bearing No. AP 03 AT 9567, is an important witness to decide the complicity of the accused No. 1-appellant herein. 26. When we adverted to the testimony of PW 2, his evidence is specific that he is running a bangles shop on Tirumala Hills and his father, PW7-A. Vellaswamy is the registered owner of the said MO4-Innova Car bearing No. AP 03 AT 9567. But PW 2-A. Venkatesh is maintaining the car as his father became old. One Thanga Perumal, the relative of Munikrishna, was engaged as driver of MO4-Innova Car bearing No. AP 03 AT 9567 about two months prior to the incident on payment of Rs. 6,000/- per month as salary. While so, on 23.10.2012 at 6.00 p.m., driver Thanga Perumal informed him that somebody is asking Innova Car bearing No. AP 03 AT 9567 on hire to go to Kanipakam, thereupon he asked Thanga Perumal to produce the said person, who intend to engage the car. Thereupon, Thanga Perumal produced accused No. 1 before PW 2-A. Venkatesh. Thus, he could identify the person, who was produced before him by Thanga Perumal. He also collected cell-phone number of accused No. 1, the hire amount was fixed as Rs. 4,000/-. He further admitted that the Innova Car bearing No. AP 03 AT 9567 is not a maxicab and it is a private car. 27. PW 15-Investigating Officer made a requisition before Chief Judicial Magistrate, Chittoor vide Ex. P12 to conduct test identification parade of accused No. 1. Accordingly, the Chief Judicial Magistrate, Chittoor nominated PW 11-Dr. S.M.D. Fazulullah. In the evidence, PW 11-Dr. S.M.D. Fazulullah testified that he conducted test identification parade for identification of the accused No. 1 on 20.12.2012 in the Sub-Jail, Sathyavedu. He selected 7 non-suspects from the Sub-Jail. P12 to conduct test identification parade of accused No. 1. Accordingly, the Chief Judicial Magistrate, Chittoor nominated PW 11-Dr. S.M.D. Fazulullah. In the evidence, PW 11-Dr. S.M.D. Fazulullah testified that he conducted test identification parade for identification of the accused No. 1 on 20.12.2012 in the Sub-Jail, Sathyavedu. He selected 7 non-suspects from the Sub-Jail. The suspects and non-suspects are of similar age, complexion and general appearance etc. Before conducting Test Identification parade, PW 11 questioned PW 2 about the descriptive particulars of suspects and recorded his statement. Thereafter, he called PW 2 from outside the jail and PW 2 identified accused No. 1 as the person, who engaged his vehicle on hire basis. After holding test identification parade, PW 11 questioned accused No. 1. Accused No. 1 informed him that the police took his photographs in the police station itself and showed it to PW 2. Ex. P13 is the test identification proceedings. 28. In the cross-examination, PW 11 admitted that PW 2 was produced before him by the police and that he did not note the complexion, age, height, dress etc., of suspect and non-suspects in his proceedings. Suspect and non-suspects are wearing pants and shirts, but are of different colours. At the end, a suggestion was put to PW 11 that the non-suspects who participated in the parade are not similar to that of accused No. 1 in age, height, dress, complexion, general appearance etc., but he denied the suggestion. 29. When this Court adverted to Ex. P13-Test identification proceedings, it is clear that accused No. 1 was allowed to choose non-suspects of his age, height, general appearance and position in life as that of him altogether with similar wear. But the proceedings marked as Ex. P13 did not contain the details like height, complexion and age of suspect and non-suspects. List of non-suspects, who are 7 in number were mentioned in the Ex. P13 proceedings, obtained their signatures, but nowhere even the age of the non-suspects is mentioned. The height, complexion and other details are ignored. But the proceedings marked as Ex. P13 did not contain the details like height, complexion and age of suspect and non-suspects. List of non-suspects, who are 7 in number were mentioned in the Ex. P13 proceedings, obtained their signatures, but nowhere even the age of the non-suspects is mentioned. The height, complexion and other details are ignored. Rule 34 of the Criminal Rules of Practice prescribes a specific procedure to be followed by the Officer, who is conducting test identification parade and it is as follows: "Rule 34:--Identification Parades : In conducting identification parades of suspects, the Magistrate shall observe the following rules: (i)(a) The police should send a requisition for holding identification parade by the Magistrate as nominated by the Sessions Judge. On such requisition, the Magistrate shall conduct the identification parade as expeditiously as possible. (b) Where bail application is pending for the release of the accused and on being informed so by the Police Officer, the Magistrate shall as far as possible fix a date earlier to the date of arguments on the bail application and hold the identification parade. (ii)(a) As far as possible, non-suspects selected for the parade shall be of the same age, height, general appearance and position in life as that of the accused. Where a suspect wears any conspicuous garment, the Magistrate conducting the parade shall, if possible, either arrange for similar wear to other or induce the suspected person to remove such garment (b) The accused shall be allowed to select his own position and should be expressly asked if he has any objection to the persons present with him or the arrangements made. It is desirable to change the order in which the suspects have been placed at the parade during the interval between the departure of one witness and the arrival of another. (iii)(a) The witnesses who have been summoned for the parade shall be kept out of the view of the parade and shall be prevented from seeing the prisoner before he is paraded with others. (b) Before a witness is called upon to identify the suspect, he should be asked whether he admits prior acquaintance with any suspect whom he proposes to identify. He shall also be asked to state the marks of identification by which he can identify the suspects. (c) Each witness shall be fetched by a peon separately. (b) Before a witness is called upon to identify the suspect, he should be asked whether he admits prior acquaintance with any suspect whom he proposes to identify. He shall also be asked to state the marks of identification by which he can identify the suspects. (c) Each witness shall be fetched by a peon separately. The witness shall be introduced one by one and on leaving shall not be allowed to communicate with witness still waiting to see the persons/paraded. (iv) Every circumstances connected with the identification including the act if any attributed to the person who is identified shall be carefully recorded by the officer conducting it, whether the accused or any other person is identified or not. Particularly any objection by any suspect to any point in the proceeding shall be recorded." 30. Though, PW 11 conducted test identification parade, it is not in consonance with the procedure prescribed under Rule 34 of the Criminal Rules of Practice since the suspect and non-suspects are not of same age, similar complexion as required under rule. 31. According to clause (iii)(b) before a witness is called upon to identify the suspect, he should be asked whether he admits prior acquaintance with any suspect whom he proposes to identify. He shall also be asked to state the marks of identification by which he can identify the suspects. 32. Statement of witness i.e., PW 2-A. Venkatesh was recorded by PW 11 in appendix No. 1 of Ex. P13, which is as follows: "I am a resident of Tirumala, living by running motor cars. On receipt of summons, I am present. I can identify the offender as he possessed a short physique, white in complexion and that his face is oval (Kola Moham) in shape. With the above, features/marks I can identify him. I have seen the culprit at 4.00/4.30 p.m., i.e., in the day time." 33. But the said statement is not in consonance with the requirement of Rule 34 of the Criminal Rules of Practice. 34. The identification proceedings cannot be substantive evidence, but it can be used only for corroboration or contradiction purpose. (Vide: Bommidi Mallikharjuna @ Malka v. State of Andhra Pradesh, 2004 (1) ALD (Crl.) 391 (AP)). 35. Though test identification parade is relevant under Section 9 of the Indian Evidence Act, it cannot be used as substantive evidence. 34. The identification proceedings cannot be substantive evidence, but it can be used only for corroboration or contradiction purpose. (Vide: Bommidi Mallikharjuna @ Malka v. State of Andhra Pradesh, 2004 (1) ALD (Crl.) 391 (AP)). 35. Though test identification parade is relevant under Section 9 of the Indian Evidence Act, it cannot be used as substantive evidence. Therefore, test identification parade held by PW 11 to identify accused No. 1 in the present case is not strictly in consonance with Rule 34 of the Criminal Rules of Practice. Therefore, much evidentiary value cannot be attached to the test identification parade. 36. Yet, another lacuna in the prosecution case is that the Innova Car bearing No. AP 03 AT 9567 is registered as private vehicle. Consequently, the question of hiring vehicle does not arise since it is impermissible under law. PW 2-A. Venkatesh, in his evidence, admitted that his father PW7-A Vellaswamy is the owner of the Innova Car bearing No. AP 03 AT 9567. PW7-A Vellaswamy also admitted that the Innova Car bearing No. AP 03 AT 9567 is a private car not a maxicab, in his testimony. When the vehicle is not a public vehicle, the same cannot be hired in view of the provisions contained in Motor Vehicles Act. If for any reason, the vehicle is being hired in the transport business, he has to obtain permit from the concerned authorities and maintain certain registers prescribed by the transport department. In the instant case, PW 2-A. Venkatesh and PW7--A. Vellaswamy clearly admitted that they are not maintaining any registers atleast vouchers etc., in the transport business. Therefore, very hiring of vehicle to accused No. 1 by PW 2-A Venkatesh is doubtful. More particularly, when the Innova Car bearing No. AP 03 AT 9567 is private vehicle, not a maxicab or taxi, hiring of said vehicle is not permissible under law. It appears that when the vehicle was committed theft, the story of hiring vehicle is invented for different purpose taking into consideration of the criminal background of accused No. 1. 37. Even to accept the finding of the Trial Court, it is for the prosecution to establish that the Innova Car bearing No. AP 03 AT 9567 was hired to accused No. 1 on payment of Rs. 4,000/- as contended by the prosecution. 37. Even to accept the finding of the Trial Court, it is for the prosecution to establish that the Innova Car bearing No. AP 03 AT 9567 was hired to accused No. 1 on payment of Rs. 4,000/- as contended by the prosecution. Strangely, though the vehicle was not returned after completion of trip, PW 2-A. Venkatesh did not lodge any complaint about missing of the vehicle, but simply waited for sufficient time; only when the dead body of Thanga Perumal was allegedly found, he lodged report with the police. There is absolutely no evidence to show that Thanga Perumal was engaged as driver on payment of Rs. 6,000/- per month as contended by the prosecution, except the oral evidence of PW 2-A. Venkatesh, P.W. 3-Perumal Munikrishna and PW7-A Vellaswamy. When PW 2-/A. Venkatesh and PW7-A. Vellaswamy are carrying on transport business, they must obtain necessary permit from the concerned authorities. Admittedly, the Innova Car bearing No. AP 03 AT 9567 is not a maxicab as defined under Section 2(22) of the Motor Vehicles Act, 1988. As per Section 2(22) of the Motor Vehicles Act, "maxicab" means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward. 38. As per Section 2(7) of the Motor Vehicles Act, "contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum-- (a) on a time basis, whether or not with reference to any route or distance; or (b) for one point to another, and in either case, without stopping to pickup or set-down passengers not included in the contract anywhere during the journey, and includes-- (i) a maxicab; and (ii) a motor cab notwithstanding that separate fares are charged for its passengers. 39. 39. The word 'permit' is defined under Section 2(31) of the Motor Vehicles Act; it means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle. 40. For transportation of passengers, a permit is compulsory and the vehicle must be a transport vehicle or a contract carriage as defined under Section 2(7) of the Motor Vehicles Act. In the present case, Innova Car bearing No. AP 03 AT 9567 is not a transport vehicle or a contract carriage, it is registered as private vehicle. Thus, the private vehicle cannot be hired for carrying passengers in the absence of its registration as public carrier or maxicab and on obtaining permit as required under Section 76 of the Motor Vehicles Act. 41. In the present case, PW7-A. Vellaswamy or PW 2-A Venkatesh, who is allegedly carrying bangles business at Tirumala, did not obtain any permit to ply the vehicle for transportation of passengers i.e., transport business for hire or reward. 42. In the absence of any permit and registration of vehicle as transport vehicle or maxicab or contract carriage, the very hiring of vehicle by accused No. 1 cannot be believed. When the genesis is not accepted, question of finding the deceased Thanga Perumal in the company of accused No. 1 alive soon before his death fails. The Trial Court did not consider the nature of vehicle and statutory requirement to hire such private vehicle for rent or reward, concluded that the Innova Car bearing No. AP 03 AT 9567 was hired by accused No. 1. Therefore, the finding of the Trial Court regarding hiring of vehicle by accused No. 1 is liable to be set aside as the finding is without any evidence. 43. On an overall consideration of entire material on record, the prosecution, miserably failed to establish the very hiring of Innova Car bearing No. AP 03 AT 9567 to accused No. 1 on payment of Rs. 4,000/- and joining of other accused with accused No. 1 while proceeding to Kanipakam. 44. 43. On an overall consideration of entire material on record, the prosecution, miserably failed to establish the very hiring of Innova Car bearing No. AP 03 AT 9567 to accused No. 1 on payment of Rs. 4,000/- and joining of other accused with accused No. 1 while proceeding to Kanipakam. 44. It is evident from the record that instead of investigating into the crime to find out as to who committed murder, police invented a short-cut method of recording statement of accused No. 1 on interrogation as if accused No. 1 admitted about obtaining vehicle on hire from PW 2 to go to Kanipakam and picking up other accused on the way etc. Such statement, which inculpates the accused, is inadmissible in evidence in view of the bar under Section 25 of the Evidence Act. Therefore, the very investigation is obviously not on correct lines and the case was set up based on inadmissible statement of accused. PW 2-A. Venkatesh himself admitted that he did not lodge any report about missing of Innova Car bearing No. AP 03 AT 9567 and that the said vehicle is registered as private car and not maintaining any records pertaining to hiring of vehicle in the course of transport business. 45. The evidence of PW 2-A. Venkatesh and PW7-A Vellaswamy is sufficient to disbelieve hiring of Innova Car bearing No. AP 03 AT 9567, which is genesis for commission of offence. Therefore, mere identification of accused No. 1 by PW 2-A. Venkatesh in test identification parade held by PW 11 itself is not sufficient to conclude that accused No. 1 is the person who committed the murder of Thanga Perumal. 46. PW 1-G. Venkatrama Naidu, is the person who found the dead body of male person near his sugarcane fields. Finding of dead body near the sugarcane land of PW 1 is not in dispute and the dead body was identified by PW 3-Perumal Munikrishna and PW 4-P. Laila, mother of the deceased Thanga Perumal. 47. PW 3-Perumal Munikrishna and PW 4-P. Laila identified the dead body. The death of Thanga Perumal is not in dispute and it is substantiated by the evidence of PW 1-G. Venkatrama Naidu, PW 2-A. Venkatesh, PW 3-Perumal Munikrishna, PW 4-A Laila, medical evidence of PW 12-Dr. Kishore, coupled with Ex. P9-inquest report, Ex. P15-post-mortem report. 47. PW 3-Perumal Munikrishna and PW 4-P. Laila identified the dead body. The death of Thanga Perumal is not in dispute and it is substantiated by the evidence of PW 1-G. Venkatrama Naidu, PW 2-A. Venkatesh, PW 3-Perumal Munikrishna, PW 4-A Laila, medical evidence of PW 12-Dr. Kishore, coupled with Ex. P9-inquest report, Ex. P15-post-mortem report. Therefore, the death of Thanga Perumal is held as homicidal, by the Trial Court rightly and such finding cannot be interfered by this Court at this stage. 48. According to the case of the prosecution, accused No. 1-appellant herein alongwith other accused caused death of Thanga Perumal by mechanical asphyxia i.e., tying rope around the neck of Thanga Perumal and caused obstruction of air passage. The evidence of PW 12-Dr. Kishore, who conducted post-mortem examination over the dead body, opined that the cause of death was due to mechanical asphyxia. But as per the prosecution case, after arranging food for accused Nos. 2 to 5 at a hotel in Kanipakam, accused No. 1 was driving the Innova Car bearing No. AP 03 AT 9567 and asked Thanga Perumal to sit in the middle of the seat, accused No. 1 taken oat a rope torn his pocket and handed over to accused No. 2 to tie around the neck of Thanga Perumal and cause death and pulled the body of Thanga Perumal from the seat of the vehicle, accused No. 1 picked up a big stone and threw it on the testicles of Thanga Perumal, again accused No. 1 threw the Same stone on the head of Thanga Perumal; on receipt of injuries, Thanga Perumal struggled for life, thereupon accused No. 1 emasculated Thanga Perumal and killed him. Even if the case of the prosecution is accepted, accused No. 2 is the person, who tied the rope around the neck of Thanga Perumal was found not guilty by the Trial Court. At best, accused No. 1 provided rope to accused No. 2 to kill Thanga Perumal. Therefore, when accused No. 2 was found not guilty, finding accused No. 1 guilty for the offence is an apparent error committed by the Trial Court and this conclusion arrived at by the Trial Court based on theory of last seen together is perverse. 49. The reason for recording conviction of the accused is last seen theory. Therefore, when accused No. 2 was found not guilty, finding accused No. 1 guilty for the offence is an apparent error committed by the Trial Court and this conclusion arrived at by the Trial Court based on theory of last seen together is perverse. 49. The reason for recording conviction of the accused is last seen theory. Even assuming for a moment, that accused No. 1 hired vehicle from PW 2 and Thanga Perumal was the driver of the vehicle to go to Kanipakam. PW 2-A Venkatesh found accused No. 1 in the company of Thanga Perumal at 6.00 p.m., on the date when he allegedly hired the vehicle on 23.10.2012, but whereas the time of death as spoken by PW 12 vide Ex. P15-post-mortem report, time of death was 24 to 36 hours prior to post-mortem examination. 50. As per Ex. P15-post-mortem report time of death was 24 to 36 hours prior to post-mortem. If time is calculated backwards, the death might have taken place at about 2.30 am, on 24.10.2012. But the Trial Court observed in Paragraph No. 20 of the judgment that accused No. 1 was in the company of Thanga Perumal till 12.00 midnight on the intervening night of 23/24.10.2012. Thereby, Thanga Perumal was last seen in the company of accused No. 1 till 12.00 midnight on the intervening night of 23/24.10.2012. If the time of death as estimated by PW 12-Doctor is accepted, the death might have taken place at 2.30 a.m., on 24.10.2012 and the dead body of Thanga Perumal was first seen by PW 1 on 24.10.2012 at 7.00 a.m. Even assuming that the Thanga Perumal was last seen alive in the company of accused No. 1 is accepted, still, it is not sufficient to hold the accused guilty for the offence punishable under Section 302 of I.P.C., as there is no proximity of time. 51. The expression "soon before death" used in Section 304-B of I.P.C. and Section 113-B of the Evidence Act assumes much importance since the proximity or interval between cruelty and death should not be much. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. 52. But in the present case, relationship between the accused and the deceased is not wife and husband. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. 52. But in the present case, relationship between the accused and the deceased is not wife and husband. The meaning of word "soon before death" is to be taken into consideration to find out what is the live link and proximity of time between the death and last seen together. If the time gap is remote and not proximate, the Court cannot convict the accused based on last seen theory. 53. In Saju v. State of Kerala, 2001 (1) ALD (Crl.) 83 (SC) : (2001) 1 SCC 378 , the Apex Court held that the circumstances of last seen together and motive were not conclusive to indicate hatching of criminal conspiracy. The Court held that there was no evidence regarding the circumstance attributing the pregnancy of the deceased to the appellant and his insistence for abortion of the child. On that finding, the circumstance of motive was answered against the prosecution and in favour of the appellant. In that context the Court observed that even otherwise motive by itself cannot be proof of conspiracy. It is well established that, ordinarily, direct evidence regarding conspiracy may not be forthcoming. 54. In Nizam and another v. State of Rajasthan, 2015 (2) ALD (Crl.) 898 (SC) : (2016) 1 SCC 550 , the Apex Court held that the Courts below placed emphasis on the last seen theory. After analyzing the evidence on facts of that case, the Apex Court held that none of the circumstances relied upon by the prosecution and accepted by Courts below can be said be pointing only towards the guilt of appellants and to no other inference. In that case, more than one inferences could be drawn on the basis of evidence brought before the Court for which benefit of doubt was given to the appellants. The Court noted several other lapses in the investigation and missing links. And therefore, observed that last seen together though an important link in the chain of circumstances yet the Court is required to take into account the entire evidence in its entirety and ensure that only inference that could be drawn from evidence, is guilty of the accused. The Court noted several other lapses in the investigation and missing links. And therefore, observed that last seen together though an important link in the chain of circumstances yet the Court is required to take into account the entire evidence in its entirety and ensure that only inference that could be drawn from evidence, is guilty of the accused. The Apex Court further held that the two Courts below have justly analysed the entire evidence and considered all the circumstances and not limited to the circumstance of last seen together. 55. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 , the Apex Court held that the last seen together circumstance does not by itself necessarily lead to inference that it was accused who committed crime but there must be something more to connect the accused with the crime and to point out the guilt of the accused and none else. 56. In Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 , on the basis of the evidence before the Court in that case, in Para 74, the Apex Court observed that reasonableness of the time gap is of some significance. If the time gap is very large, then it is not only difficult but may not even be proper for the Court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. 57. In view of the law laid down by the Apex Court in the judgments (referred supra), mere proof that the deceased and accused No. 1 were last seen alive together is not sufficient in the absence of proximity of time. As per the material on record, the deceased was found in the company of accused No. 1 at 12.00 midnight of 23/24.10.2012, but death took place at 2.30 a.m., on 24.10.2012, then the time gap between last seen alive and death is about 2 hours 30 minutes, as such it is not proximate in time. Consequently, murder of Thanga Perianal by any other cannot be ruled out due to long gap of 2 hours 30 minutes during midnight. 58. Consequently, murder of Thanga Perianal by any other cannot be ruled out due to long gap of 2 hours 30 minutes during midnight. 58. As discussed above, the reason for coming to conclusion that the accused No. 1 was in the company of Thanga Perumal soon before his death and for holding accused No. 1 guilty for the offence punishable under Section 302 of I.P.C. based on last seen theory was that a telephone call was made to Thanga Perumal on 24.10.2012 at 6.00 p.m., but the response from the phone was "out of coverage area". The said fact is stated by PW 3-Perumal Munikrishna as PW 2-A Venkatesh asked him to make a call to Thanga Perumal. But that by itself is not a ground to conclude that the appellant was in the company of Thanga Perumal soon before his death. Apart from that, no call data was secured from the service provider to substantiate the said contention that phone call was made to the accused or deceased Thanga Perumal at any time. Medical evidence is also not supporting the proximate time of death to convict the accused based on last seen theory. 59. In Gargi v. State of Haryana, 2020 (1) ALD (Crl.) 48 (SC) : (2019) 9 SCC 738 , the Apex Court held as follows: 33.1. Insofar as the "last seen theory" is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das v. State of Bihar, (1974) 4 SCC 193 , in the following: "10. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das v. State of Bihar, (1974) 4 SCC 193 , in the following: "10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused." 60. Therefore, in the absence of proximity of time between the deceased last seen together alive in the company of accused No. 1 and death of the deceased Thanga Perumal, it is difficult to come to conclusion that the accused No. 1 alone is the person, who caused death of Thanga Perumal, by extending benefit of doubt. 61. In view of our foregoing discussion, conviction of the accused No. 1/appellant herein for the offence punishable under Section 302 of I.P.C., is illegal and perverse since such finding is not based on any substantive evidence. 62. The Trial Court also relied on the evidence of discovery. To prove the recovery of MO1-Nylon rope on the confession made by accused No. 3 alongwith other accused is another doubtful circumstance for the reason that the scene of offence is open place, easily accessible to everyone, that too the confession was allegedly made by accused No. 3, but the signatures of all accused were obtained on the admissible portion of confessional statement, marked as Ex. P18 leading to discovery. The Trial Court at one stage disbelieved the confession leading to discovery, but at another point of time, the same was relied upon to record conviction of the accused. One of the major contentions of learned Counsel for the appellant is that when confession was made by accused No. 3, obtaining signatures of other accused on the confessional statement is a serious illegality, since confession cannot be made as a chorus. One of the major contentions of learned Counsel for the appellant is that when confession was made by accused No. 3, obtaining signatures of other accused on the confessional statement is a serious illegality, since confession cannot be made as a chorus. No doubt, in ordinary course of events, each accused has to be interrogated separately and record their statements, which is admissible under Section 27 of the Evidence Act. But here, confessional statement marked as Ex. P18 is not a separate confessional statement of individual accused. However, the Court marked only part of the confessional statement as Ex. P18, where he assured that they will show the place where they killed Thanga Perumal. Hence, the story of accused giving confessional statement disclosing the names of other accused and given assurance to show the scene of offence, if anybody accompany with them, appears to be manipulated for different reasons, more particularly to rope the accused with the offence. No doubt, the contention of the learned Counsel for the appellant-accused No. 1 is contrary to the law laid down by the Apex Court in Kishore Bhadke v. State of Maharashtra, 2017 (1) ALD (Crl.) 990 (SC) : AIR 2017 SC 279 . In the said judgment, the Apex Court held that a joint disclosure or simultaneous disclosures, per se, are not inadmissible under Section 27. A person accused need not necessarily be a single person, but it could be a plurality of the accused. The Court held that a joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in chorus. When two persons in custody are interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact which was reduced into writing, such disclosure by two or more persons in police custody do not go out of the purview of Section 27 altogether. What is relevant is that information given by one after the other without any break, almost simultaneously, as in the present case and such information is followed up by pointing out the material things by both of them then there is no good reason to eschew such evidence from the regime of Section 27 of the Evidence Act. 63. What is relevant is that information given by one after the other without any break, almost simultaneously, as in the present case and such information is followed up by pointing out the material things by both of them then there is no good reason to eschew such evidence from the regime of Section 27 of the Evidence Act. 63. Therefore, the contention of the learned Counsel for the appellant/accused No. 1 is rejected while holding that joint or simultaneous statement of the accused leading to discovery is admissible in evidence. Here, the conclusion of the joint statement is marked as Ex. P18. Though, it is admissible in evidence in view of the law declared by the Apex Court referred above, there is any amount of doubt as to the arrest of the accused other than accused No. 3 based on the disclosure statement of accused No. 3. The Trial Court rightly disbelieved the arrest of the accused other than accused No. 3 based on disclosure statement, which need not be disturbed by this Court since the signatures of the accused were obtained on the statement of accused No. 3 recorded by the police while they were in custody. Hence, the finding of the Trial Court with regard to arrest of the accused other than accused No. 3 is upheld. 64. The confessional statement leading to discovery though admissible in evidence, the Court has to examine whether such place is within the exclusive knowledge of the accused or not and whether MO1-Nylon rope seized from the scene of offence is an article available in the market. If the scene of offence is not within the exclusive knowledge of the accused alone and the article i.e., MO1 recovered in pursuance of the confession is available in the market, the Court cannot rely on such disclosure statement to connect the accused with the offence. 65. The scene of offence is sugarcane garden of Adikesavulu Naidu by the side of road, which is an open place. Ex. P22 is the rough sketch of the scene of offence. Ex. P20 is the observation report of scene of offence, where the dead body was found. 65. The scene of offence is sugarcane garden of Adikesavulu Naidu by the side of road, which is an open place. Ex. P22 is the rough sketch of the scene of offence. Ex. P20 is the observation report of scene of offence, where the dead body was found. The scene of offence is situated by the side of road on its Southern side and the land of Adikesavulu Naidu is just 5 meters away to dead body on its Western' side, Eastern side part of the scene of offence is open land, whereas on the Northern side, there is a road leading to D.K. Marripalle, which is known as K.P. Mitta Road. When the scene of offence is by the side of two roads both on the Southern side and Northern side, which is accessible to everyone and anyone can reach to such open place. Consequently, it is difficult to conclude that scene of offence is within the exclusive knowledge of the accused alone. Similarly, recovery of MO1-rope (ligature) is doubtful for the reason that MO1-rope is commonly available in every house and in the market No fibre of rope on ligature is found during postmortem examination on the neck of deceased Thanga Perumal by PW 12-Doctor. Ex. P 15-post-mortem is silent as to finding of fibre material on ligature mark on the neck. This is another strong circumstance to disbelieve the seizure of MO1. 66. In similar circumstance, the Apex Court in State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125 , held that when ligature is available in open market and so also commonly available in most of the houses, the same cannot be accepted., The Apex Court further observed as follows: "Sections 25 and 26 are manifestly intended to hit at an evil, viz., to guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. But these sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing offences as it is concerned with protecting persons who may be compelled to give confessional statements. But these sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing offences as it is concerned with protecting persons who may be compelled to give confessional statements. If Section 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of the truth of the statement made by him, and the Legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement, that rule is not to be deemed unconstitutional, because of the possibility of abnormal instances to which the Legislature might have, but has not extended the rule. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. The fact that the principle is restricted to persons in custody will not by itself be a ground for holding that there is an attempted hostile discrimination because the rule of admissibility of evidence is not extended to a possible, but an uncommon or abnormal class of cases." 67. Applying the same principle to the present facts of the case, it is difficult to accept the disclosure of scene of offence, which is an open place between two roads on the Southern and Northern Side, so also recovery of MO1-Rope since it is commonly available in most of the houses. Therefore, finding of the Trial Court holding accused No. 1 guilty, based on disclosure statement made by accused No. 3 or any other accused is illegal since accused No. 1 was also in the custody, as held in Paragraph No. 32 of the Trial Court's judgment, by the time accused No. 3 gave statement. Therefore, conclusion arrived by the Trial Court holding accused No. 1 alone guilty based on the discovery is an illegality for the reason that the recovery evidence is not a substantive piece of evidence, it is only a corroborative piece of evidence to complete links in the chain of circumstances. 68. Discovery evidence is not a substantive evidence (vide Dinakar v. State, AIR 1970 Bom. 438 ). 69. 68. Discovery evidence is not a substantive evidence (vide Dinakar v. State, AIR 1970 Bom. 438 ). 69. Similarly, in Inspector of Police, Tamil Nadu v. Balaprasanna (supra), the Apex Court held as follows: "Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of the Supreme Court. However, in almost all such decisions reference is made to the observations of the Privy Council in Puluhuri Kotayya v. Emperor, AIR 1947 PC 67 . At one time it was held that the expression fact discovered' in the second is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kotayya's case (supra). The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible." 70. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible." 70. In view of the principle laid down in the above decision, discovery evidence is only a relevant piece of evidence, but it is not a substantive piece of evidence. 71. Even otherwise, in Brijesh Mavi v. State of NCT of Delhi, 2012 (2) ALD (Cri.) 865 (SC), the Apex Court, held that recovery evidence, when not sufficient to prove culpability of accused and no direct evidence connecting accused to murder. Recovery of weapon of offence, at the instance of accused two years after incident is not believable. Mere recovery of weapon, therefore, not sufficient to convict the accused for the offence of murder under Section 302 of IPC. 72. Following the principles laid down in the above judgments, it is difficult to accept the finding recorded by the Trial Court based on discovery. Therefore, the conviction of accused No. 1 alone is liable to be set aside. 73. The Trial Court also relied on various circumstances as narrated in the judgment and most of the circumstances are disbelieved, they are as follows: (1) PW8 and PW9 saw Innova Car bearing No. AP 03 AT 9567, A1, A2, A4 and A5 on 8.11.2012 in Mango garden of Babu Reddy. (2) SIM card of PW 5 with Number 9949994230 was given to accused No. 3 for his use. (3) Confession of accused No. 3 leading to arrest of A1, A2, A4 and A5 and recovery of MOs. 1 to 8, 12 and 13 from A1, A2, A4 and A5. 74. The Trial Court has not recorded any finding on the circumstance viz. PWs. 2 and 3 made phone calls to Thanga Perumal during the night of 23.10.2012 and morning of 24.10.2012 respectively. 75. Coming to the oral evidence available on record, the evidence of PW7-A. Vellaswamy is based on hearsay evidence. Similarly, the evidence of PW 3-Perumal Munikrishna is also based on hearsay evidence. PWs. 2 and 3 made phone calls to Thanga Perumal during the night of 23.10.2012 and morning of 24.10.2012 respectively. 75. Coming to the oral evidence available on record, the evidence of PW7-A. Vellaswamy is based on hearsay evidence. Similarly, the evidence of PW 3-Perumal Munikrishna is also based on hearsay evidence. However, PW 5-M. Naga Krishna, Mason under whom accused No. 3 was working as coolie, PW 6-K Venkatesh, another coolie worked under PW 5, PW8-G. Munirathnam, owner of the Mango garden and PW9-N. Chinnabba Mandadi did not support the case of the prosecution. It is well settled law that hearsay evidence is inadmissible for the following reasons. (a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility; (b) truth is diluted and diminished with each repetition, and (c) if permitted, gives ample scope for playing fraud by saying "someone told me that". Thus statement of witnesses based on information received from others is inadmissible. (vide : Kalyan Kumar Gogoi v. Ashutosh Agnihotri, 2011 (4) ALD 14 (SC) : (2011) 2 SCC 532 ). 76. Further, the evidence of PW 5-M Naga Krishna, PW 6-K. Venkatesh, PW8-G. Munirathnam, and PW9-AT. Chinnabba Mandadi is of no use to believe that the deceased Thanga Perianal was last seen alive soon before his death in the company of accused No. 1-appellant herein. PW 3-Perumal Munikrishna and PW 4-P. Laila are not the witnesses to hiring of the vehicle or for any other purpose except identifying the dead body as that Thanga Perumal. 77. On an overall consideration of entire material available on record, we find absolutely no evidence to prove that accused No. 1 alone committed murder of Thanga Perumal with MO1-Ligature and caused injuries on the body of Thanga Perumal with stone. In fact, it was not the case of the prosecution that accused No. 1 alone killed Thanga Perumal. As per the case of the prosecution, accused No. 2 tied rope, pulled Thanga Perumal from the vehicle while he was in deep sleep. In fact, it was not the case of the prosecution that accused No. 1 alone killed Thanga Perumal. As per the case of the prosecution, accused No. 2 tied rope, pulled Thanga Perumal from the vehicle while he was in deep sleep. When accused No. 2 was found not guilty, question of finding accused No. 1, who allegedly supplied MO1 for murder of Thanga Perumal, cannot be convicted; that too it is impossible to strangulate the person by single individual unless accused No. 1 is over powered or the deceased Thanga Perumal was in intoxicated state or suffering from any health problem. Hence, the story invented by the prosecution is totally artificial and basing on the statement of accused recorded by the police during interrogation, they created story and filed charge-sheet instead of conducting independent investigation. Normally, the investigation will be commenced based on the complaint lodged with the police or on receipt of information. But, here police started investigation basing on the belated report of PW 2-A. Venkatesh. The report was not basis for filing the charge-sheet, but the statement of accused recorded during interrogation is the basis for filing charge-sheet. When the investigation is illegal and tainted with irregularities, the prosecution case cannot be accepted in view of the law laid down by the Apex Court in Gargi v. State of Haryana (supra). 78. In view of our foregoing discussion, the conviction recorded and sentence imposed upon against the accused No. 1-appellant herein for the offence punishable under Section 302 of I.P.C., is illegal, erroneous and liable to be set aside. The point is answered in favour of the accused and against the prosecution. 79. In the result, the criminal appeal is allowed, conviction recorded and sentence imposed upon the appellant-accused No. 1-Devarla Murali, for the offence punishable under Section 302 of I.P.C., in Sessions Case No. 236 of 2013 on the file of the HI Additional District and Sessions Judge, Tirupati; by judgment dated 9.12.2014, are set aside. The appellant-accused is acquitted finding him not guilty for the offence punishable under Section 302 of I.P.C. and he shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any; paid by the accused shall be refunded to the accused. 80. Consequently, miscellaneous applications pending if any, shall stand closed.