JUDGMENT : 1. The appellant is arraigned as accused No.3 in the charge sheet filed by the respondent-Police for the offences punishable u/S 302, 201 r/w Sec. 34 of IPC and Sec. 3(2)(v) of the SC/ST (POA) Act. As the accused Nos.1 and 2 were found to be juvenile, a juvenile case has been registered against them in No.19/2010 on the file of Prl. Civil Judge (Sr. Dn.) & CJM, Bellary/ Juvenile Justice Board, Bellary. 2. The present appellant was tried by the learned Special Judge, Ballari in Special Case No. 65/2010 and was convicted for the offences punishable u/S 302, 201 r/w Sec. 34 of IPC but was acquitted for the offence punishable under Sec. 3(2)(v) of the SC/ST (POA) Act. The trial court sentenced the accused-appellant to undergo rigorous imprisonment till his life and to pay a fine of Rs.10,000/-and in default to undergo simple imprisonment for six months for the offence punishable under Section 302 of IPC. Further, the accused-appellant was sentenced to undergo rigorous imprisonment for two years and a fine of rs.2,000/-with a default sentence of three months simple imprisonment for the offence punishable u/S 201 of IPC. The above said judgment and sentence is called in question in this appeal. 3. The brief factual matrix of the case are that, a person by name Kantappa son of Bheema lodged a first information as per ex.P.1 stating that the deceased Sunil is his second son, they were all residing at Ambedkar Camp in Goulerahatti near Hosapete town. It is stated that on 09.06.2010 the complainant had come back to his house after his business. At that time, his second son (deceased Sunil) was in the house. The complainant requested his son to give a pillow as he wanted to sleep. Accordingly, the said Sunil gave a pillow and refused to give pillow to his mother and thereafter he went out of the house but thereafter he did not return. On the next day, the complainant called the deceased over his phone but found his phone ‘switched off’. Thereafter he enquired with the appellant-accused and another person by name Vishwa. They also told that they did not know whereabouts of the deceased. Inspite of best efforts to locate the whereabouts of the deceased, the complainant could not able to find him. Thereafter he enquired with the appellant-accused and another person by name Vishwa. They also told that they did not know whereabouts of the deceased. Inspite of best efforts to locate the whereabouts of the deceased, the complainant could not able to find him. In the above said backdrop it is stated that on 12.06.2010 after three days later in the evening at about 5 p.m. he came to know from his son-in-law by name Raghavendra that some dead body with the redden smell found near a drainage near Shadi Mahal plots. Immediately he went there and identified the said body on the basis of the clothes as that of deceased Sunil and he came to know that on 09.06.2010 at about 8 p.m. the deceased Sunil was with his friend Shiva-accused No.2, a juvenile offender. Accordingly, he suspected the death of the deceased and lodged complaint as per Ex.P.1. 4. The Police after thorough investigation as noted supra filed a charge sheet against three persons, out of them, two were juvenile and present appellant being the major, tried by the Special Court. The trial court after securing the presence of the accused framed charges against him. It is pertinent to note here that the charge is not only framed against the appellant herein but also conjointly framed against the accused nos.1 and 2 also as the Police had invoked sec. 34 of the IPC invoking the common intention on the part of all the accused persons. After framing of the charges for the aforesaid offences, the court proceeded to record the evidence as the accused pleaded not guilty. 5. The prosecution in all examined 16 witnesses as P.Ws.1 to 16 and got marked documents from Exs.P.1 to P.24 and also material objects M.Os.1 to 11. After examination of the prosecution witnesses the accused was also examined u/S 313 of Cr.P.C. and called upon him to enter into defence evidence, if any. As the accused did not choose to lead any defence evidence, after hearing both the sides the trial Court has arrived at a conclusion that the prosecution has proved the case beyond reasonable doubt. 6. Learned counsel for the appellant strenuously contended that the entire case revolves around circumstantial evidence, except the recovery of some incriminating articles alleged to have been recovered at the instance of the appellant No.3, no other materials are available. 6. Learned counsel for the appellant strenuously contended that the entire case revolves around circumstantial evidence, except the recovery of some incriminating articles alleged to have been recovered at the instance of the appellant No.3, no other materials are available. The trial court has committed a serious error in arriving at a conclusion that the prosecution has proved its case beyond reasonable doubt only on the basis of fluctuating evidence of P.W.5. 7. The learned counsel also brought to the notice of this Court that the co-accused, juvenile offenders who were also tried for the same offences on the basis of the same evidence in Juvenile Case No. 19/2010 has extended benefit of doubt to the juvenile offenders and acquitted them. Therefore, he contends before the court that the prosecution has not proved its case beyond reasonable doubt. Therefore, the appellant is entitled to be acquitted for the above said offences. 8. Per contra, learned Addl. S.P.P. Sri. V.M. Banakar, contends before the Court that there is a strong evidence of P.W.5 to connect the accused to the crime with reference to the recovery of the clothes at the instance of the accused No.3, i.e., the appellant herein, seizure of M.O.9, a T-Shirt and M.O.10 – stone, at the instance of the appellant. The said articles were sent to the FSL and the blood stains contained on M.O.9 and 10 tallied with the blood stains of the deceased. Considering the said strong circumstances, the trial Court has rightly convicted the appellant. Therefore, there is no room for interference at the hands of this Court. Hence, he pleaded for dismissal of the appeal. 9. In the above said backdrop, as a first appellate court, this court is duty bound to re-evaluate the materials on record to find out the correctness of the judgment and sentence passed by the trial court. 10. Before adverting to the material evidence on record, just we will have the brief appreciation of the evidence of the prosecution witnesses. 11. P.W.1 is the father of the deceased. Apart from saying the facts as narrated in the first information report he has stated that, on the date of the incident the deceased had gone along with accused No.2-Shiva. He felt that his deceased son had gone along with accused No.2-Shiva and that he might have slept in the house of his grandfather. Apart from saying the facts as narrated in the first information report he has stated that, on the date of the incident the deceased had gone along with accused No.2-Shiva. He felt that his deceased son had gone along with accused No.2-Shiva and that he might have slept in the house of his grandfather. As he did not return, he lodged complaint before the Police. 12. Learned counsel points out that, in the first information report this first hand information given by the P.W.1 has not been stated that he actually witnessed that the deceased went along with accused No.2-Shiva. Further added to that, there is no whisper whatsoever about the present appellant as to how he was connected with the crime, whether there was any motive for this appellant to commit any offence so far as the deceased is concerned. In the course of cross examination also he has stated that the accused No.2-Shiva often visiting the house of P.W.1 and use to take the deceased along with him. It is further stated that, about one month prior to the incident this appellant once had also been to the house of P.w.1 to take the deceased along with him. But all these materials are conspicuously absent sofar as Ex.P.1 is concerned. 13. As rightly contended by the learned counsel, these are all the improvements made by P.w.1 during the course of evidence. Of course all improvements made by the witnesses cannot be simply brushed aside as a fresh material placed before the Court. However, if those materials are materially corroborated by other materials on record that portion of the evidence also gains some importance. In this background this Court has to find out whether any other materials as to whether the accused and deceased last seen together. 14. P.W.2 Mari Prakash is the person who participated in the inquest proceedings drawn by the Police as per ex.P.2. He has stated that the Police have conducted inquest on the body of the deceased. In this context P.W.3 is also another witness who deposed in the same manner. Coupled with evidence of these two witnesses the prosecution also examined the doctor who conducted Postmortem examination [P.W.16]. The said Doctor has stated that he has conducted postmortem on the dead body and ultimately he gave an opinion that the death was due to ‘shock followed by head injury’. 15. Coupled with evidence of these two witnesses the prosecution also examined the doctor who conducted Postmortem examination [P.W.16]. The said Doctor has stated that he has conducted postmortem on the dead body and ultimately he gave an opinion that the death was due to ‘shock followed by head injury’. 15. Looking to the above evidence of the doctor and inquest witnesses there is no much cross examination sofar as these witnesses are concerned with reference to the death of the deceased as a homicidal one. Of course the prosecution was successful in proving the homicidal death of the deceased. However, mere proof of homicidal death itself is not sufficient unless the prosecution proves that how the homicidal death occurred and who was responsible for the homicidal death of the deceased. In this background the evidence of other witnesses have to be looked into. 16. P.W.4 one Mr. Abdul Razaq is a panch witness to Ex.P.4, seizure of clothes of the deceased and Ex.P.5 seizure of M.O.5 from accused No.1 and seizure of clothes of accused No.2 under Ex.P.7 and seizure of M.O.7 at the instance of accused No.2 as per ex.P.6. There is no need for this court to discuss about these material objects and the mahazar because they are referable to accused nos.1 and 2 as noted above who are already acquitted by the Juvenile Justice Board in Juvenile Case No. 19/2010. 17. P.W.5 is the material witness in order to connect this accused, who is the panch witness to exs.P.9 and P.10. The strong circumstance relied upon by the prosecution with reference to the recovery we would like to discuss the evidence of this witness little later after examining the other witnesses. 18. P.W.6 is the person who appears to have last heard the deceased screaming. He has totally turned hostile to the prosecution. The prosecution examined this witness in order to establish that on 20.06.2010, this witness has given a statement before the police stating that on 09.06.2010 at about 8.30 p.m. when this witness was proceeding to his house, when he reached near Muneer Siddique’s plot, then he heard a screaming voice and thereafter he suspected some incident might have happened and thereafter he saw the dead body of the deceased in a drain. Therefore, he suspected some persons might have committed the murder of the deceased. Therefore, he suspected some persons might have committed the murder of the deceased. Even considering the cross-examination, nothing is suggested that the said screaming voice was that of the deceased. Mere hearing of screaming voice by this witness takes us nowhere in order to draw any inference that it was the voice of the deceased. Therefore, the evidence of this witness is not at all helpful to the prosecution. 19. P.W.7, 8 and 9 are the persons who were working as headmasters in different schools, who have given the documents pertaining to the date of birth of accused Nos.1 to 3. There is no dispute with regard to this aspect because accused Nos.1 and 2 were juveniles, who were already tried by the Juvenile Justice Board. Accused No.3, the present appellant, was a major on the date of the incident, as such, he was tried by the Sessions Court, which has not been objected to or challenged by the appellant at any point of time. 20. P.W.10 is another important witness. As we have noted above, P.W.10 is the person who has stated that about a month prior to the incident, the appellant had come to the house of P.W.1 to take the deceased along with him and further prior to the date of the incident, Accused No.2/Shiva taken the deceased along with him. In corroboration to the evidence of P.W.1, the prosecution had led the evidence of this witness. In fact, P.W.10 has also turned hostile to the prosecution. In the course of cross-examination, it is suggested that on 09.06.2010 at about 8 p.m. he saw some persons were running away near M.P.Prakash Nagar and he has stated before the Police that those persons were accused persons along with the deceased but the said suggestion has been denied. If the suggestion is very meticulously read, that itself shows that this witness had no personal knowledge but actually received such information that some people ran away towards M.P. Prakash Nagar, from third persons. Therefore, this witness cannot be called as a witness for last seen all the accused and deceased together. He is a hearsay witness. 21. P.W.11 is the Police Constable, who is a formal witness who carried the First Information Report to the Court. P.W.12 is the P.S.I., who has registered a case on the basis of Ex.P1 and dispatched the First Information Report to the Court. He is a hearsay witness. 21. P.W.11 is the Police Constable, who is a formal witness who carried the First Information Report to the Court. P.W.12 is the P.S.I., who has registered a case on the basis of Ex.P1 and dispatched the First Information Report to the Court. P.W.13 and 14 are the investigating officers, who have conducted the investigation and P.W.14 has filed the charge-sheet. 22. Therefore, the last seen of the accused and deceased together and this appellant going to the house of P.W.1 at any point of time has not been proved by the prosecution, even by means of semblance of evidence before the Court, as noted above the relevant witnesses have turned totally hostile to the prosecution. 23. The only circumstance that remained for consideration is the recovery of incriminating materials at the instance of the accused/ appellant. P.W.5 and the investigating officer have categorically stated about the above said recovery as relied upon by the prosecution. P.W.5 Mr. Javed has deposed before the Court that, he knew the accused and police have secured his presence to Hospete Police station and at that time, the accused/appellant was there in the police station. The accused has taken the police to his house and he went inside the house and brought one bloodstained shirt, which is marked at M.O.11, though it is marked as M.O.9 erroneously in the evidence of this witness. Thereafter, the accused took the police to the scene of offence and shown a stone on the spot, which is marked at M.O.10. These articles were seized under Mahazar/Ex.P9 and 10. 24. In the course of cross-examination, very peculiarly he has stated that the panchanama was signed by him in the police station and also signed the slips which were affixed on M.O.9 and 10, in the police station itself. 25. Learned counsel contends that, he stated that shirt was recovered from accused No.3/the appellant, but a T-shirt has been produced before the Court. However, it does not make a difference, because the Investigating Officer has stated about the recovery of a T-shirt and whether it is a T-shirt or a shirt, but a recovery made from the accused was his cloth. But the question arises, in the absence of other clinching materials on record, whether the evidence of P.W.5 can be relied upon by the Court. But the question arises, in the absence of other clinching materials on record, whether the evidence of P.W.5 can be relied upon by the Court. Though the said material objects have been sent to FSL and the FSL report shows that the blood group of the deceased and the blood group found on the material objects matches with each other, but the witness has stated that the mahazar was signed by him in the police station and not at the spot and also the slips were pasted on the material objects in the police station. No cross examination or re-examination by prosecution on this point. The Investigating Officer contrarily stated that the mahazar was drawn at the spot and slips were pasted on the material objects on the spot itself, but the witness deviate from the same. 26. It is worth to refer in this regard the judgment of the Juvenile Justice Court, which is placed for consideration of this Court by the learned counsel. The evidence of P.W.5 so far as accused Nos.1 and 2 are concerned with reference to accused last seen together with the deceased and appreciating the same evidence, the Juvenile Justice Court declined to rely upon the said version of P.W.5 styling him as a person who cannot be relied upon as doubt arose with regard to his veracity. In view of the above said circumstances and when the witness has stated that the Mahazar was signed in the police station, it creates serious doubt whether actually those items were seized at the instance of the accused. Though the FSL report tallied, but the blood group of the accused has not been taken by the police in order to ascertain whether that blood fallen on the T-shirt or the shirt of the accused/appellant belonging to the blood group of the accused himself. Though there is no explanation by the accused but in order to eradicate the doubt, the police would have done this. It is not that the police have to do this exercise in all the cases but where the prosecution exclusively and solely relying upon a circumstance of recovery, it is better the police have to do that exercise to overcome the situation that the blood group of the accused and the bloodstains on the cloth of the accused are not one and the same. 27. 27. Looking to the above said facts and circumstances, as the co-juvenile accused have already been acquitted, the benefit of doubt has to be extended so far as this appellant is concerned. As we have noted that the charges framed by the Sessions Court and also the Juvenile Justice Board are almost one and the same and in both the cases Section 34 of IPC has been invoked. When the intention on the part of two accused persons have been considered by the competent court and acquittal has been recorded, the same benefit requires to be extended to the appellant also. 28. Under the above said facts and circumstances, in our opinion, the Trial Court has committed a serious error in solely relying upon the motive factor which has not been proved and the recovery which is doubtful in nature, hence, the appellant is entitled to be acquitted by setting aside the judgment of the Trial Court. Hence, we proceed to pass the following: ORDER The appeal is allowed. The judgment of conviction and sentence passed by the learned Special Judge/ Sessions judge, Bellary in Special Case No. 65/2010 dated 07.04.2011 is hereby set aside. The appellant [accused] is acquitted for the offences punishable u/S 302 and 201 of IPC. As it is stated that the appellant [accused] is in custody, he shall be released forthwith if he is not required in any other case. Registry is hereby directed to communicate the operative portion to the concerned jail authorities for release of the accused with a direction to release the appellant [accused] without any unnecessary delay if he is not required in any other case.