JUDGMENT : 1. This appeal has been filed by sole accused challenging the judgment of conviction dated 25.03.2017 and order of sentence dated 27.03.2017 in S.C.No.152/2013, passed by the III Additional Sessions Judge, Vijayapura, whereby accused has been convicted for the offence punishable under Section 302 of IPC. 2. Accused was sentenced to undergo rigorous imprisonment for life with fine of Rupees Fifty Thousand (Rs.50,000/-) only and in default, to undergo rigorous imprisonment for a period of 06 months for the offence punishable under Section 302 of IPC. 3. The facts of the prosecution case in brief are as under: The deceased -Smt. Kavita w/o Vijaykumar Metre resident of Ballolli village was the daughter of the complainant -Mallappa Ambale (PW.8) and his wife Chandrabhaga (PW.10). The marriage of deceased -Kavita was solemnized with Vijaykumar Metre. The accused -Shivanand is the father of Vijayakumar Metre. The said Vijayakumar and deceased -Kavita had three children by name (1) Bhagyasri, (2) Laxmi @ Mouneshwari and (3) Ganesh. The husband of the deceased -Kavita died one year prior to the incident due to heart-attack. After death of her husband Vijayakumar, Kavita started residing with her children, in a separate house, bearing house No.244/2/1 situated at Ballolli village. The accused -Shivanand was residing separately in a separate house, situated near aforesaid house of deceased Kavita at Ballolli. The accused -Shivanand was angry on his daughter-in-law -Kavita, as she was standing, talking with other men in Ballolli village and was very closely talking with one Revappa s/o Tippanna Sagayi in Ballolli village. Hence, accused suspected that she has illicit relationship with him. Thereafter, on 17.05.2013 at about 02.30 hours, while deceased -Kavita was preparing Peda, in the aforesaid house property, accused assaulted the deceased with axe, on right side of the head, right frontal region and on mandible, cheek, chin and some other parts of the body and caused grievous injuries and committed murder of the deceased -Kavita. PW.8 -Mallappa filed the complaint as per Ex.P.9 and case came to be registered in Zalaki Police Station in Crime No.50/2013 for the offence punishable under Section 302 of IPC. The Investigating Officer after investigation has filed the charge sheet for the offence punishable under Section 302 of IPC. 4. The Committal Court committed the case to the Sessions Court. PW.8 -Mallappa filed the complaint as per Ex.P.9 and case came to be registered in Zalaki Police Station in Crime No.50/2013 for the offence punishable under Section 302 of IPC. The Investigating Officer after investigation has filed the charge sheet for the offence punishable under Section 302 of IPC. 4. The Committal Court committed the case to the Sessions Court. The Sessions Court after taking cognizance against accused for the above said offence and on hearing accused and prosecution, framed the charge for the aforesaid offence. 5. The prosecution in order to prove its case, have examined 15 witnesses as P.Ws.1 to P.W.15 and got marked 23 documents as per Exs.P.1 to 23 and got identified material objects as per M.Os.1 to 6. Accused was examined under Section 313 Cr.P.C. by putting every incriminating circumstances appearing against him and he denied each and every circumstances. 6. The Trial Court after hearing the arguments on both sides, framed the point for consideration and passed the impugned judgment of conviction and order of sentence. 7. Heard Sri. Shivanand V. Pattanshetti, learned counsel appearing for the appellant -accused and Sri. Prakash Yeli, the learned Addl. SPP appearing for the State. 8. It is contention of learned counsel for the appellant -accused that there are no eyewitnesses to the incident. The entire case is based on circumstantial evidence. It is his further contention that the case of the prosecution is that PWs.2, 3, 6, 7 and 9 have last seen the accused who came out from the house of the deceased holding axe and out of these witnesses except PW.9, other 04 witnesses have not supported the case of the prosecution. It is his further contention that on perusal of the cross-examination of PW.9 it is clear that she was also not present and her testimony cannot be relied on. It is his further contention that the prosecution has not proved the recovery of M.O.1 -Axe at the instance of accused, since PWs.1 and 4, the panch witnesses have not supported the case of the prosecution. With this, he prayed to allow the appeal. 9. Per contra, the learned Addl. It is his further contention that the prosecution has not proved the recovery of M.O.1 -Axe at the instance of accused, since PWs.1 and 4, the panch witnesses have not supported the case of the prosecution. With this, he prayed to allow the appeal. 9. Per contra, the learned Addl. SPP submits that even though PWs.2, 3, 6 and 7 have not supported the case of the prosecution, the evidence of PW.9 -Bhagyashree is sufficient to hold that she has last seen the accused coming out of the house of deceased holding axe on the date of incident. It is his further contention that nothing has been elicited in her cross-examination to disbelieve her evidence. It is his further submission that the Trial Court after relying on the evidence on record has rightly convicted the accused for the offence punishable under Section 302 of IPC. With these submission, he prayed to dismiss the appeal. 10. Having heard the learned counsel appearing for the appellant -accused and the learned Additional SPP appearing for the respondent -State and on perusal of the records, the following point arise for our consideration:- "Whether the prosecution has proved beyond all reasonable doubt that appellant -accused has committed the offence punishable under Section 302 of IPC?" 11. Our answer to the above point is in the ‘Negative’ for the following reasons:- 12. The death of the deceased is homicidal death is not in dispute. The Doctor who conducted the post-mortem examination -PW.13 in his P.M. Examination Report as per Ex.P.12 has noted the injuries found on the dead body of the deceased, which are as under:- (i) Right side forehead (frontal region) 1½ long 1 wide deep upto skull chap wound cutting through skin, vessels, nerves and soft tissues and muscles. (ii) Upper edge of right eye lid (lateral side) temporal region ½ inch long and ½ inch wide chap injury. (iii) Temporal region (above right car) 4 inch long and 3 inch wide skull deep chap injury cutting through skin, vessels, nerves and soft tissues and muscles. (iv) Right side cheek (right face) ½ inch medial to right ear 3 inch long 3 inch wild chap wound deep up to the mandible joint, cutting through skin, vessels, nerves and soft tissues and facial muscles. (v) ½ inch long chap injury ½ inch wide on the right cheek at about 2 inch below injury 4. (iv) Right side cheek (right face) ½ inch medial to right ear 3 inch long 3 inch wild chap wound deep up to the mandible joint, cutting through skin, vessels, nerves and soft tissues and facial muscles. (v) ½ inch long chap injury ½ inch wide on the right cheek at about 2 inch below injury 4. (vi) 1 inch long ½ inch wild chap injury on chin. 13. PW.13 -Doctor opined that death was die to hemorrhagic shock as a result of injuries sustained. Therefore, the evidence of PW.13 -Doctor coupled with Ex.P.12 -Post Mortem Report clearly establishes that the death is homicidal. 14. The case of the prosecution is based on circumstantial evidence. The well known rule governing circumstantial evidence is that each and every incriminating circumstances must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn. 15. Before analyzing the evidence produced by the prosecution in proof of the above circumstances it may be necessary to note that the law on the issue of circumstantial evidence has been now well settled. The Hon'ble Supreme Court in Sharad Vs. State of Maharashtra, 1984 (4) SCC 116 , following the judgment in Hanumanth Singh Vs. State of Madhya Pradesh, AIR 1952 SC 343 , at para Nos.153 and 154 has explained that: "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade .v. State of Maharashtra, where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 16. About the motive is concerned PWs.8 and 10 the parents of the deceased have consistently deposed that the deceased used to tell before them that accused was threatening her that he will kill if she talked with others and he was suspecting her. The evidence of PWs.8 and 10 in that regard is not discredited in their cross-examination. As the daughter of the deceased and accused namely Bhaghashree -PW.9 in her evidence stated that the accused repeatedly used to object her mother for talking with other men and used to threaten to kill her. The said evidence of PWs.8 to 10 clearly established the motive of the accused to commit the murder of the deceased -Kavita. 17. PW.8 is the father of the deceased and PW.10 is the mother of the deceased. On receiving phone call from PW.9 they came to Ballolli village from their village Kandalgaon. Ex.P.9 is the complaint lodged by PW.8 -Mallappa. 17. PW.8 is the father of the deceased and PW.10 is the mother of the deceased. On receiving phone call from PW.9 they came to Ballolli village from their village Kandalgaon. Ex.P.9 is the complaint lodged by PW.8 -Mallappa. In the said complaint it is stated that PW.9 -Bhagyashree at about 03.00 p.m. on 17.05.2013 intimated them that her grandfather had assaulted her mother with Axe on her head and killed her. PW.9 -Bhagyashree has deposed that on 17.05.2013 she along with her grandmother -Neelabai, younger sister -Laxmi had gone to the house of Ammangi for House Warming Ceremony at Ballolli village and they returned at about 02.30 p.m., when they were near the house, the accused came out of the compound holding axe and ran-away holding the axe which was bloodstained; thereafter, they went inside the house and saw that her mother had sustained injuries on her head and she was dead and several persons had gathered there. The said evidence of PW.9 has been discredited in the cross-examination, as under:- 18. The admission in the cross-examination of PW.9, elicited by accused goes to show that when PW.9 reached her house, nearly 50 persons had gathered there and accused had already run-away from the house and people who gathered there told her that the accused had assaulted her mother and ran-away. Therefore, the said admission itself goes to show that she has not witnessed the accused coming out of the compound holding axe and running away from the house. According to the prosecution it was PW.9 who intimated over telephone to PWs.8 and 10. PW.8 -Mallappa has filed the complaint as per Ex.P.9. In the said complaint he had stated that PW.9 -Bhagyashree told them over phone that accused had assaulted the deceased with axe on her head and killed her. It is not corroborated with the testimony of PW.9, since she has not witnessed the incident. Other witnesses PWs.2, 3, 6 and 7 who allegedly saw the accused coming out from the house holding axe have not supported the prosecution case. Therefore, we hold that the prosecution has failed to establish that accused came out from the house of deceased by holding axe at about 02.30 p.m. on 17.03.2013. 19. It is the case of the prosecution that M.O.1 Axe has been recovered at the instance of accused under Ex.P.2 -recovery mahazar. Therefore, we hold that the prosecution has failed to establish that accused came out from the house of deceased by holding axe at about 02.30 p.m. on 17.03.2013. 19. It is the case of the prosecution that M.O.1 Axe has been recovered at the instance of accused under Ex.P.2 -recovery mahazar. PWs.1 and 4 are panch witnesses to the said Ex.P.2 -recovery mahazar. Both PWs.1 and 4 have not supported the case of the prosecution with regard to recovery of M.O.1 -Axe at the instance of accused. The prosecution has not established that the M.O.1 -Axe has been recovered at the instance of accused under Ex.P.2 -recovery mahazar. 20. PWs.1 and 4 are also panch witnesses to Ex.P.1 -cloth seizure panchanama of the deceased, Ex.P.5 -inquest panchanama and Ex.P.6 -spot panchanama, have not supported with regard to drawing of the said mahazars in their presence. As the prosecution has not established the chain of circumstances, the accused is entitled for the benefit of doubt. 21. The Trial Court has not appreciated the evidence on record in a proper prospective, has not considered the cross-examination of PW.9 and wrongly held that accused has committed the offence punishable under Section 302 IPC. Therefore, the judgment of conviction and order of sentence passed by the Trial Court requires to be set-aside. In the result the following:- ORDER The Criminal Appeal is allowed. The impugned judgment of conviction dated 25.03.2017 and order of sentence dated 27.03.2017 passed by the III Additional Sessions Judge, Vijayapura in S.C.No.152/2013 is set aside. Consequently, the accused (Shivanand s/o Gurulingappa @ Gurupadappa Metre) is acquitted of the charge under Section 302 of IPC. He is directed to be set at large forthwith, if he is not required in any other case. The fine amount, if any, deposited with the Court, shall be returned to the appellant/accused. Send back the Trial Court Records to the concerned Court.