JUDGMENT : B. VEERAPPA, J. 1. The accused has filed present Criminal Appeal against the impugned judgment of conviction and order of sentence dated 25.11.2015 made in S.C. No. 139/2009 on the file of IV Additional Sessions Judge, Mysuru convicting the accused for the offences punishable under Sections 341, 302 and 201 of Indian Penal Code. (I) BRIEF FACT OF THE CASE: 2. The prosecution case is that on 08.10.2008 at about 9.30 a.m. accused was returning from his garden-land, at that time, a dog belonging to PW-5 Nagamma barked at the accused and accused pelted stones to the said dog, enraged by the same, accused assaulted CW-9 AND CW-10 with coconut quills. On seeing this, the deceased Mallaradhya @ Lokesha questioned the accused as to why he was assaulting the ladies with coconut quills and there was a quarrel between the accused and the deceased. The accused threatened that he would murder him within 15 days and went away from the spot. It is further case of the prosecution that on 30.10.2008 at about 8.30 p.m. when deceased Mallaradhya was returning home after finishing his work near Ramaswamy channel, accused was waiting for the deceased and assaulted him with chopper (machu) on his face, head and murdered him. Thereafter, threw the dead body into the channel along with his moped in order to screen off the offence of murder. Hence, the accused has committed the aforesaid offences. Based on the complaint by PW-1 Renukaradya, the brother of the deceased, the jurisdictional police after investigation filed a charge sheet against the accused for the offences punishable under Sections 341, 302 and 201 of Indian Penal Code. 3. After committal of the case to the Sessions Court, the learned Sessions Judge framed the charges against the accused and read over and explained to him in the language known to him. The accused pleaded not guilty and claimed to be tried. In order to prove the case of the prosecution examined in all 29 witnesses as PWs. 1 to 29 and got marked the documents as Exs.P1 to 48 and got marked the material objects as M.Os.1 to 21. The accused pleaded not guilty and claimed to be tried. In order to prove the case of the prosecution examined in all 29 witnesses as PWs. 1 to 29 and got marked the documents as Exs.P1 to 48 and got marked the material objects as M.Os.1 to 21. After completion of the evidence of the prosecution witnesses, statement of the accused as contemplated under Section 313 of Cr.P.C. was recorded and the accused denied all incriminating circumstances adduced against him by the prosecution witnesses, but he has chosen to lead any evidence nor marked any documents. 4. The learned Sessions judge based on the aforesaid pleadings, formulated three points for consideration, considering the oral and documentary evidence on record, the learned Sessions Judge recorded a finding that prosecution proved all the circumstances against the accused and thereby, by the impugned judgment of conviction and order of sentence, convicted the accused for the offences punishable under Sections 341, 302 and 201 of Indian Penal Code. Hence, the present appeal is filed by the accused. 5. We have heard the learned counsel for the parties. (II) ARGUMENTS ADVANCED BY SRI. C.V. NAGESH, LEARNED SENIOR COUNSEL FOR THE APPELLANT/ACCUSED: 6. Sri. C.V. Nagesh, learned Senior counsel for the accused contended with vehemence that the impugned judgment of conviction and order of sentence passed by the trial Court, convicting the accused for the offences made out in the charge sheet is erroneous and contrary to the material on record and liable to be set aside. He would further contend that the entire case of the prosecution is based on the circumstantial evidence as there was no direct evidence for the following alleged circumstances: 1. Last seen theory. 2. Extra judicial confession. 3. Recovery of mobile phone, repiece patti and Chopper i.e. M.O.20, M.Os.15 and 17 respectively. 4. Medical evidence and motive. 7. The learned Senior Counsel further contended that PWs. 2, 22 and 25 were examined as last seen theory witnesses. The said witnesses have turned completely hostile. Therefore, last seen theory is not proved. Even the learned Sessions judge has also recorded a finding that the prosecution failed to prove beyond reasonable doubt the last seen theory is not proved. He would further contend that in order to prove extra judicial confession, prosecution examined PWs. 9 and 19 who have also turned hostile. Therefore, last seen theory is not proved. Even the learned Sessions judge has also recorded a finding that the prosecution failed to prove beyond reasonable doubt the last seen theory is not proved. He would further contend that in order to prove extra judicial confession, prosecution examined PWs. 9 and 19 who have also turned hostile. He would further contend that PW-9 alleged to have made a statement before the Police which PW-19 as witnessed thereby nothing but the statement recorded in front of Police under 161 Statement and admittedly, the said two witnesses have also turned hostile. 8. He would further contend that next circumstance relied upon the prosecution is recovery of mobile, repiece patti and chopper as per the voluntary statement. Ex.P.46 is the seizure of mobile phone and the witnesses to the seizure mahazer are PW-8 and 26 who also turned hostile and not supported the case of the prosecution. He would further contend that the alleged recovery of M.O.17 Chopper was recovered nearly after lapse of little more than a month. He would further contend that PW-10 Doctor who examined the deceased has specifically stated that there were nine injuries which are all lacerated wounds and if somebody is assaulted with M.O.17, inside wound would have occurred. The evidence of PW-10 Doctor and Post Mortem report at Ex.P.8 is contrary to the contents of Ex.P.23 Mahazer. Therefore, recovery as well medical evidence is not proved. He would further contend that PW-11 Pancha of the recovery of Chopper is stated that there were no blood stains on M.O.17. PW-23 ASI who seized M.O. at Ex.P-23 stated that there were blood stains and evidence of PWs. 1, 11 and 23 are inconsistent and there are gapping holes. Therefore, prosecution failed to prove recovery as well medical evidence. 9. The learned senior Counsel would further contend that in order to prove motive, the prosecution examined PWs. 5, 6 and 17. PW-10 turned completely hostile. PW-6 has not stated about the police complaint of the quarrel between the accused and the deceased prior to the incident and she has not stated any animosity between the family of the deceased and the accused as there was no financial or landed disputes. In fact PWs. 5 and 6 in categorical terms admit that even after the quarrel, both the families of the deceased and the accused were in cordial terms. In fact PWs. 5 and 6 in categorical terms admit that even after the quarrel, both the families of the deceased and the accused were in cordial terms. Therefore there was no motive to prove beyond reasonable doubt by the prosecution. Therefore, he sought to allow the appeal by setting aside the impugned judgment of conviction and order of sentence passed by the trial Court. 10. In respect of his contentions, learned Senior counsel relied upon the dictum of the Hon'ble Supreme Court in the case of Vijay Shankar vs. State of Haryana, (2006) 1 SCC (Cri) 151 : (2015) 12 SCC 644 at paragraphs 8 and 9. (III) ARGUMENTS ADVANCED BY SRI. VINAYAKA V.S. LEARNED HCGP: 11. Per contra, Sri. Vinayaka V.S. learned High Court Government Pleader while justifying the impugned judgment of conviction and order of sentence, contended that the learned Sessions Judge considering the oral and documentary evidence on record, recorded a finding that points formulated by the learned Sessions judge in the affirmative holding that the prosecution failed to prove beyond all reasonable doubt for the involvement of the accused in homicidal death of the deceased, thereby attract provisions of Sections 341, 302 and 201 of Indian Penal Code. He would further contend that the evidence of PWs. 5, 6 and Ex.P.38-FSL Report are relevant to convict the accused who stated on oath about the quarrel between the accused and the deceased prior to the incident. Learned Sessions judge considering the entire material on record has rightly convicted the accused. Therefore, he sought to dismiss the appeal. (IV) POINT FOR DETERMINATION: 12. In view of the rival contentions urged by the learned counsel for the parties, only the point that would arise for our consideration in the present case is: “Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court convicting the accused for the offences punishable under Sections 341, 302 and 201 of Indian Penal Code in the facts and circumstances of the present case.” 13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully. 14. The entire case of the prosecution is based on the circumstantial evidence and there is no direct evidence to prove the homicidal death of the deceased. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully. 14. The entire case of the prosecution is based on the circumstantial evidence and there is no direct evidence to prove the homicidal death of the deceased. Admittedly, the case was registered in Crime No. 92/2008 against the unknown persons on 31.10.2008 at about 00.30 hours. (V) EVIDENCE OF THE PROSECUTION WITNESSES AND DOCUMENTS RELIED UPON: 15. This Court being the Appellate Court in order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and documents relied upon: 15.1. PW-1 Renukaradhya is the complainant and the brother of the deceased deposed that on 30.10.2008 his brother was murdered. On that day, during night hours, he was in the house of Sister-in-law and she told him that his brother had not returned. Usually, his brother used to return home at 8-9 p.m. Himself and his Sister-in-law tried to contact him over phone, but he did not receive the call. Thereafter, he went to Talakadu Road in his scooter in search of his brother. On the way, he was making calls to his brother's mobile. When he came near Ramaswamy Nala, he saw one chapel and mobile phone of his brother on the bridge. He also saw blood stains and got frightened and went back to call villagers and returned with PW-17 Rama Aradhya, PW-2 Shivakumaradhya and PW-18 Mallaradhya. When they have checked the area, they found blood stains all over the spot and they also saw his brother's TVS vehicle bearing Registration No. KA-05-Y-8788 in the channel. Accordingly, they have informed to Police and the Police came there and took out the body. There were assault marks and blood on the face. Therefore, he lodged a complaint and supported the prosecution case. 15.2. PW-2-Shivakumaradhya, who deposed that he came to know from PW-1, who told that his brother had not come to home and called him to accompany him stating that he had seen chapel and mobile near the channel and he along with Mallaradhya, Rama Aradhy and Chennaveera Aradhya went near the channel and they saw two legs and scooter in the channel and blood stains on the road. Thereafter, they came to know that the Police had arrested the accused. Thereafter, they came to know that the Police had arrested the accused. As such he has been treated as partly hostile. In his cross-examination, he has denies the suggestion that he had given statement before the Police that accused had threatened the deceased Mallaradhya with dire consequences. 15.3. PW-3-Somaradhya deposed that police seized cloths of shirt, dhoti and underwear of the deceased and conducted seizure mahazer as per Ex.P4. In his cross-examination, he admits that he is relative of deceased Mallaradhya and PW-1 and Mallaradhya had asked him to come to Police Station, he had been to police station and has signed. He does not no anything else. Hence, he was treated as partly hostile. 15.4. The wife of the deceased is examined as PW-4 B.G. Uma. She deposed that she acquainted with the accused and the deceased. It is her case that when about three years earlier to the date of deposition, while returning from the shop near Ramaswamy Nala her husband was murdered. She further deposed that during the Ayudha Pooja Festival, there was a rift between the grand mother of the accused and accused. At that juncture, the accused had beaten the grand mother with coconut quills and her husband has intervened and pacified the quarrel. At that juncture, accused has held a shirt color of her husband and had warned him that he would take away his life within a period of 20 days there from. She further deposed that when her husband did not returned home as usual, she tried to call on his mobile phone but there was no response. As such, she went to the house of PW-1 and informed the same. PW-1 tried to call the deceased over his mobile phone but there was no response. As such, herself, PW-1 and others went in search of the deceased and somebody informed that her husband has met with an accident. She came to know next day that somebody had murdered him. She has informed police that her husband did not have any animosity in the Village and therefore, she came to know its accused, who has murdered her husband. In her cross-examination, no useful materials are elicited. 15.5. The grand mother of the accused by name Nagamma is examined as PW-5. She has informed police that her husband did not have any animosity in the Village and therefore, she came to know its accused, who has murdered her husband. In her cross-examination, no useful materials are elicited. 15.5. The grand mother of the accused by name Nagamma is examined as PW-5. She deposed about the incident, wherein accused had beaten her with coconut quills and did not support the case of the prosecution and the quarrel has been pacified by the deceased. In her cross-examination, it is elicited that accused used to visit her garden land even after the quarrel. She further elicited that accused had met with an accident and he had been taking treatment in NIMHANS Hospital, Bengaluru. She also answered that the quarrel pacified by the deceased and she does not no what transpired between the deceased and the accused. 15.6. PW-6 Mahadevi is the daughter of PW-5. She also deposed in line with the examination-in-chief of PW-5. In her cross-examination also, it is elicited that even after the quarrel, accused and the deceased were having cordial relationship. 15.7. Mallaradhya @ Puttanna is examined as PW-7. He belongs to the same caste and relative of the deceased. He deposed about the incident wherein accused had picked up quarrel with PWs. 5 and 6. He further deposed that after the deceased pacified the quarrel, accused had given him a life threat. Further, he did not support the case of the prosecution. As such, he has been treated as partly hostile witness. In his cross-examination to the extent, he supported the case of the prosecution. He admits that except quarrel that took place earlier to the incident, he does not no anything. 15.8. Panch witness to mobile seizure mahazer is examined as PW-8. He did not support the case of the prosecution. As such, he has been treated as hostile witness. PW-9 Sathish Kumar is a circumstantial witness. He is the friend of accused. He examined as PW-9. He has stated that accused used to call on his mobile telephone bearing No. 9886253768. Further, he did not support the case of the prosecution. As such, he has been treated as hostile witness. In his cross-examination by the prosecution, he denies having given statement before the police that the accused had called him on the day of incident and requested him to help him in murdering the accused. Further, he did not support the case of the prosecution. As such, he has been treated as hostile witness. In his cross-examination by the prosecution, he denies having given statement before the police that the accused had called him on the day of incident and requested him to help him in murdering the accused. To the extent, he supported the case of the prosecution and defence cross-examined him. In his cross-examination, he admits that after accident in the year 2007, accused had lost his mental balance. He has furnished the details found on the body of the deceased and he identified the clothes worn by the deceased, Post Mortem examination report and photograph that would taken during the Post Mortem examination. In his cross-examination, it is elicited that a person meets with an accident, the injuries found on the face could be occurred. He admits that when he saw MO.17 Chopper there were no blood stains. As such, he has not mentioned the same in Post Mortem examination report. He also admits that it is possible that M.O.17 is a new chopper. 15.9. V.S. Ganesh is examined as PW-11. He is witness to Ex.P.23 recovery mahazer. He supported the case of the prosecution. In his cross-examination, it is elicited that M.O.17 is a new chopper and there were blood stains on the same. He also admits that labels were not affixed on the chopper but it was affixed on the cloth cover. 15.10. First Information Report carrier is examined as PW-12. He supported the case of the prosecution. Gopalaiah is the Police Constable, who escorted the dead body to the Post Mortem examination, he examined as PW-13. He deposed that he escorted body for Post Mortem examination. Thereafter brought cloths found on the dead body and hand it over to the Investigating Officer. He also supported the case of the prosecution. 15.11. PW-14 is yet another Constable who had arrested the accused in Kurubalanahundi on 02.12.2008. He also supported the case of the prosecution and identified the accused before the Court. 15.12. PW-15 Rangaswamy deposed that he worked as Head Constable in Talakadu Police station and he carried the seized chopper to the Doctor for opinion and obtained the opinion from the Doctor and hand it over to the Investigating Officer. He identified the chopper as M.O.17 and supported the case of the prosecution. 15.13. 15.12. PW-15 Rangaswamy deposed that he worked as Head Constable in Talakadu Police station and he carried the seized chopper to the Doctor for opinion and obtained the opinion from the Doctor and hand it over to the Investigating Officer. He identified the chopper as M.O.17 and supported the case of the prosecution. 15.13. Police Sub-Inspector, who registered the case is examined as PW-16. He deposed that he registered a case on 31.10.2008 after receipt of Ex.P1 and sent FIR vide Ex.P.35. He further deposed that on 20.11.2008, he has collected call details of the accused and hand it over to the Investigating Agency. He further deposed that on 02.12.2008 as per his instruction, sub-staff arrested the accused and produced before him and he handed over him for further investigation to the CBI on the same day. He further deposed that he had collected FSL report vide Ex.P.38 and gave a report to Investigating Officer vide Ex.P.39 and supported the case of the prosecution. In his cross-examination, he admits that there was no impediment for complainant to draft a complaint in his hand writing. He admits that he did not enquired about at what time the deceased closed the shop on the day of incident. He denies the suggestion when the accused was arrested, he had sustained injuries and there was not having fit medical condition. Relative of the deceased by name Mallaradhya was examined as PW-17. He deposed that he had gone along with the complainant and the wife of the complainant in search of deceased near Ramaswamy Nala. Thereafter, he has been present when police conducted PWs. 2 and 3 mahazer and signed as mahazer witness. In his cross-examination, he admits that deceased had a petty shop in Talakadu and usually he used to close the shop around 7.00 p.m. He admits that there will be moving of people near the place of incident till 10.00 p.m. He admits that he did not accompany PW-1 on lodging Ex.P1. He admits that he did not give information to the Police to draft contents of Exs.P.2 and 3 mahazer and he has only signed mahazer. It is also elicited that in Villages there will be quarrels on petty reasons and in that regard usually Panchayath will be held. He admits that he did not give information to the Police to draft contents of Exs.P.2 and 3 mahazer and he has only signed mahazer. It is also elicited that in Villages there will be quarrels on petty reasons and in that regard usually Panchayath will be held. He admits that in respect of the quarrel that took place between the accused and PW-5 and 6, there was no Panchayat convened. 15.14. PW-18 is the another relative. He also deposed about the incident that occurred between PW-5 and accused with regard to barking of dog reared by PW-5. He has stated that on 30.10.2008, he had seen around 8.30 p.m., that accused moving on Motorcycle and thereafter, he went home and slept. He further deposed that at 11.00 p.m. he received a telephone call from PW-1 intimating that deceased had not returned to the home. He has also gone near the place of incident and found blood stains near the place of incident. He further deposed that they noticed the deceased dead body and his moped in the Ramaswamy Nala and accordingly they had been to police station and police came there. He further deposed that he is a witness to Exs.P.2 to 4 and supported the case of the prosecution. 15.15. Krishna is a circumstantial evidence, he is examined as PW-19. He deposed that he is working as Cable Operator in old street of Talakadu. Further he deposed that PW-9 Sathish Kumar was kept as a Driver by the accused and PW-9 has worked for three years as a Driver with the accused. He further deposed that on holidays, PW-9 used to visit his shop. Further he did not support the case of the prosecution and he has been treated as partly hostile witness by the prosecution and cross-examined by confronting statement given by him before the Investigating Officer. In his cross-examination, he denied the statement vide Ex.P.40. 15.16. Mother of the deceased is examination as PW-20. She supported the case of the prosecution by deposing that she had witnessed the incident where accused picked up quarrel with PWs. 5 and 6 and also given life threat. In her cross-examination, she admits that the house of PW-5 is situated after 10-12 houses of her residence. She admits that next to the house of PW-5, accused has got a garden land. 5 and 6 and also given life threat. In her cross-examination, she admits that the house of PW-5 is situated after 10-12 houses of her residence. She admits that next to the house of PW-5, accused has got a garden land. She admits that she could not have heard the conversation between the people who had assembled near PW-5 house on the day of quarrel. 15.17. PW-21 is the another villager. He also supported the case of the prosecution by deposing that he has witnessed the incident where the accused picked up quarrel with PW-5. He did not support the case of the prosecution in entirety and as such, he has been treated as partly hostile and cross-examined by the prosecution. He denied the statement given before the Investigating Agency as per Ex.P.41. 15.18. One Kumara is examined as PW-22. He supposed to be the neighboring shop owner of the deceased. He did not support the case of the prosecution. As such, he has been treated as partly hostile witness. In his cross-examination, he denies the statement having given vide Ex.P.42 before the Investigating Agency. 15.19. Further, Investigating Officer is examined as PW-30. He deposed that he took further investigation of this case on 02.12.2008 and after completion of the investigation, filed a charge-sheet. In his cross-examination, he denied having filed false charge-sheet. (VI) CONSIDERATION: 16. Based on the aforesaid witnesses, learned Sessions judge proceeded to convict the accused persons. A careful reading of the complaint at Ex.P1 by PW-1 Renukaradhya reiterating the averments made in the complaint has reiterated the same in the evidence that some unknown culprits have assaulted with some deadly weapons. Accordingly, lodged a complaint. The learned Sessions judge while convicting the accused relied upon five circumstances: 1. Last seen theory. 2. Extra judicial confession. 3. Recovery of mobile of the accused and his call details. 4. Medical evidence. 5. Motive. 17. Before adverting the said points for consideration, it is relevant to consider the findings recorded by the learned Sessions Judge with regard to last seen theory at paragraphs 58 and 59, admittedly, the finding recorded by the learned Sessions Judge that prosecution failed to prove beyond all reasonable doubt last seen theory as well as extra judicial confession, the State has not filed any appeal against adverse finding recorded as stated supra. With regard to recovery, Ex.P.46-Seizure mahazer depicts that they recovered Nokia 650 mobile and the witnesses examined as PW-8 and 26 who have turned hostile. Ex.P.23-Seizure mahazer at paragraph 1, it is specifically stated that chopper is about 1 feet 7 inch with wooden handle, 4½ inch in length with iron ring and front portion little bend with normal sharpness and middle side of the chopper is 1.9 inch in width and middle portion is sharp and thereby blood stains were found here and there. Admittedly, chopper was recovered at the instance of accused on 03.12.2008 beyond one month. Very strangely PW-10 Doctor, who has stated in the evidence in the cross-examination that when he has seen the chopper- M.O.17, there were no blood stains and the same was not mentioned in his Post Mortem report at Ex.P.8 and M.O.17 is the new chopper and there is no blood stains on the chopper. Post Mortem report issued by PW-10 Doctor clearly depicts that there were nine injuries, all injuries are lacerated wounds which reads as under: “1. An oblique laceration extending from right orbit to below left eye socket of length 18 cm and maximum depth 1 cm with tapering depth observed at the left eye side, width of laceration is 3 cm at Right eye socket and 0.4 cm at the lateral below left eyeball side. This laceration is superimposed by nibbling of soft tissues by aquatic creatures resulting in complete loss of right orbit and the entire contents. The impact of injury has resulted in bony injuries, maxillary antrum on both sides fractured with crushed spicnles and bony fragments projecting into the maxillary sinus. 2. Scalp laceration of 14 cm length extending from right temporal bone to left frontal scalp of maximum depth ½ cm, width ¾ cms, this oblique laceration has an extension 6 cm, from the right temporal end, extension being another laceration of 5 cm length, ½ cm depth, ½ cm width. All together this gives a “DIAGRAM” shaped laceration. 3. Oral cavity lacerated with an injury extending from Right labial angle extending leftwards and downwards with splitting of lower tip and also crushing the jaw bone mandible underneath length of this laceration is 8 cm with 3 cm maximum width, depth is bone deep. All together this gives a “DIAGRAM” shaped laceration. 3. Oral cavity lacerated with an injury extending from Right labial angle extending leftwards and downwards with splitting of lower tip and also crushing the jaw bone mandible underneath length of this laceration is 8 cm with 3 cm maximum width, depth is bone deep. Compound mandibular fracture with splitting of lower jaw in midline along with dentures, the fractured fragments along with dentures are depressed inwards. 4. Left nasal frenula lacerated and aplit open 4 cm x ½ cm x ½ cm. 5. Laceration over occipital area of scalp of 6 cm length, 1 cm width, ½ cm depth. 6. Right ear lobes lower aspect lost with nibbling of the edges. 7. A 2 cm length brownish black abrasion just in front of Right axilla; width ¼ cm. 8. Abrasion of 2x3 cm dimension over Left frank of abdomen brownish black colored. 9. Abrasion 3 cm length, ¼ cm width just above Left wrist on Left forearm.” The opinion of the Doctor that the death was due to intracranial hemorrhage which is a result of combination of facial and scalp injuries. 18. By careful perusal of the evidence of PW-10 Doctor and Seizure Mahazer at Exs.P.23 and 26 and M.O.17, there were no cut injuries on the body of the deceased. PW-11 who is Panch witness for recovery of chopper has admitted in the cross-examination that the chopper-M.O.17 shown to him is new one and there were no blood stains and there was no label. PW-23 ASI who seized M.O.17 and Ex.P.23 who has stated that the weapons used for the act. He further deposed that accused took out M.O.17 from the place it was hidden, he seized the same in the presence of Panchas. He also deposed that there were blood stains on M.O.17. The evidence of PWs. 10, 11 and 23 are contradictory with each other and in view of the above evidence, two views are possible. If two views are possible, then it is well settled in the golden threat which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. 19. With regard to motive, prosecution examined PWs. 5, 6 and 17. Admittedly, PWs. 5 and 6 have turned hostile. PWs. 5 and 6 in a categorical term admitted in the cross-examination that even on the alleged quarrel between the accused and the deceased prior to the incident, the family members of the accused and the deceased were in cordial. They are not attributed any circumstances for the accused who have motive against the deceased. PW-17 who is relative of the deceased, supported the prosecution case stating that he has seen the dead body of the deceased at about 10.30 p.m. on 30.10.2008. The evidence of PW-17 is no way assist in proving the guilt of the accused. 20. The entire case is based on the circumstantial evidence. The following three conditions must be satisfied: 1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. 2. the circumstances should be a definite tendency unerringly pointing towards the guilt of the accused. 3. 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 none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 21. On meticulous examination of the evidence on record, it is clear from the evidence of PW-1, PW-2, PW-8, PW-9, PW-10, PW-11, PW-19, PW-22, PW,23, PW-25 and PW-26 that there are so many omissions and contradictions in the evidence of prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the court has to take strict note thereof. On thorough reading of the aforesaid evidences of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the court has to take strict note thereof. On thorough reading of the aforesaid evidences of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves. Admittedly, none of the circumstances relied upon by the prosecution has been proved with cogent evidence on record beyond all reasonable doubt about the involvement of the accused. Therefore, in the absence of any materials on record, the accused cannot be convicted, merely based on the voluntary statement of the accused. 22. Admittedly, in the present case, out of five circumstances relied upon by the prosecution, in two circumstances, the learned Sessions judge in categorical terms held with regard to last seen theory and extra judicial confession that prosecution failed to prove beyond all reasonable doubt for the involvement of the accused in homicidal death of the deceased. Once the chain link is dismantled, the other three circumstances are not proved beyond reasonable doubt for the involvement of the accused, the said material facts and law laid down by the Hon'ble Supreme Court and this Court not considered by the learned Sessions Judge and thereby erroneously, convicted based on the heresay of the witnesses without there being any materials on record. A careful examination of charges made against the accused depicts that beyond reasonable doubt, the shadows only to eclipse truth. Learned Sessions judge has ignored number of reasonable doubts which legitimately arose on the reasons led by the prosecution and its conduct in suppressing the vital documents and witnesses clearly indicate the prosecution has not proved the guilt of the accused beyond all reasonable doubt. Non-explanation of the time gap between the incident and lodging of complaint i.e., incident occurred on 30.10.2008 at about 8.30 p.m. and the complaint lodged against unknown persons on 31.10.2008 at about 00.30 hours and non production of documents including the oral and documentary evidence, the prosecution failed to prove beyond all reasonable doubt for the involvement of the accused in the homicidal death of the deceased. 23. 23. Admittedly, accused is a distant relative, though they are the residents of the same village as stated on oath by the prosecution witnesses, even after small quarrel between the accused and the deceased with regard to pelting of stones on the dog, and that they are cordial, no circumstances are proved that the family of the accused are involved in the homicidal death of the deceased. The prosecution failed to link from the beginning till end. The said material aspect has not considered by the learned Sessions Judge while proceeding to convict the accused only on the basis of the presumptions and assumptions which is impermissible. 24. Our view is fortified by the dictum of the Hon'ble Supreme Court relied upon by the learned Senior counsel in the case of Vijay Shankar vs. State of Haryana, (2006) 1 SCC (Cri) 151 : (2015) 12 SCC 644 held at paragraphs 8 and 9 as under: “8. There is no eyewitness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these 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 of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487. The same view was reiterated in Bablu vs. State of Rajasthan, (2006) 13 SCC 116 : (2007) 2 SCC (Cri) 590. 9. The prosecution mainly based its case on the circumstances: (i) motive; (ii) last seen theory; (iii) extra-judicial confession; (iv) trail of dog squad leading to baithak of the accused and (v) recovery of bloodstained clothes and knife. In the light of the above principles, let us examine whether the prosecution has proved the circumstances by convincing evidence and whether those circumstances unerringly point towards the guilt of the accused.” (VII) CONCLUSION 25. In the light of the above principles, let us examine whether the prosecution has proved the circumstances by convincing evidence and whether those circumstances unerringly point towards the guilt of the accused.” (VII) CONCLUSION 25. For the reasons stated above, the point raised in the present Criminal Appeal has to be answered in the affirmative holding that the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court convicting the accused for the offences punishable under Sections 341, 302 and 201 of Indian Penal Code and the accused has also made out case for acquittal for the offences framed. (VIII) RESULT: 26. In view of the above, we pass the following: ORDER: (i) Criminal Appeal is allowed. (ii) The impugned judgment of conviction and order of sentence passed by the learned trial Court dated 25.11.2015 made in S.C. No. 139/2009 on the file of IV Additional Sessions Judge, Mysore convicting the accused for the offences punishable under Sections 341, 302 and 201 of Indian Penal Code is hereby set aside. (iii) The accused is acquitted for the offences punishable under Sections 341, 302 and 201 of Indian Penal Code. (iv) Bail bond, if any, stands discharged. Ordered accordingly.