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2023 DIGILAW 827 (KAR)

Venkatachala v. State of Karnataka

2023-06-28

K.SOMASHEKAR, RAJESH RAI K.

body2023
JUDGMENT K.SOMASHEKAR, J. - This appeal is directed against the judgment and order of conviction rendered by the Court of II Additional District and Sessions Judge, Ramanagaram sitting at Kanakapura in S.C.No.97/2011 dtd. 19/1/2017, whereby convicting the accused for the offence punishable under Ss. 143, 147, 302 read with Sec. 149 of I.P.C. and accused Nos.1 to 6 sentenced to undergo simple imprisonment for a period of two months for the offence punishable under Sec. 144 read with Sec. 149 of I.P.C. Further, the aforesaid accused directed to undergo simple imprisonment for a period of one year for the offence punishable under Sec. 147 read with Sec. 149 of I.P.C. They shall undergo rigorous imprisonment for life and to pay a fine of Rs.25, 000.00 each for the offences punishable under Sec. 302 read with Sec. 149 of I.P.C. and in default for payment of fine amount they have to further undergo rigorous imprisonment for a period of one year. All the sentences awarded against the accused shall run concurrently. 2. Factual matrix of this appeal are as under: It is the case of the prosecution that on 18/2/2011 at around 8.30 p.m. at Chatra-Tigalarahalli Road on BWSSB Road near Pipeline Canal the accused being the persons have formed an unlawful assembly with a common object to eliminate the deceased - Rajendra. Accordingly, they took him on their motor cycles bearing No.KA-04-V-1371, KA-51- J-2679 and moped bearing No.KA-01-K-2188 from his house by saying him that they are going to Kallahalli fair/jatra. The said Rajendra was earning Rs.5, 000.00 per month by working in a factory at Bengaluru. The aforesaid Rajendra did not provide alcohol having a habit to consuming the same. Therefore, some enmity developed in between the aforesaid accused and the deceased. Therefore, the accused persons pushed the deceased - Rajendra into a ditch beside pipeline, later by alighting into the ditch, accused Nos.2 to 5 hold the hands and legs of deceased - Rajendra and accused Nos.1 and 6 assaulted on his head with stone and committed murder. 3. In pursuance of the filing of a complaint by the complainant the criminal law was set into motion by registering FIR as per Ex.P-16 for the aforesaid offences. 3. In pursuance of the filing of a complaint by the complainant the criminal law was set into motion by registering FIR as per Ex.P-16 for the aforesaid offences. Subsequent to registration of FIR against the accused being culprits, the investigating agency has taken up the case for investigation and investigation has been done thoroughly and during investigation, the investigating agency has recorded the statement of witnesses and so also drew the panchanama at Ex.P7 and so also taken the PM report at Ex.P11 enclosed thereof during the seizure mahazar at Ex.P14. On completion of entire investigation by the investigating agency filed the charge sheet against the accused before the committal court. Subsequent to filing of the charge sheet, the Committal Magistrate had passed an order under Sec. 209 of Cr.P.C. and accordingly, the case in S.C.97/2011 has been registered. In that case, the Trial Judge having secured the accused for facing up a trial, the accused who defended the case by engaging the service of the advocate. 4. Heard the learned counsel Sri.G.M.Srinivas Reddy for the appellants and so also, learned HCGP namely Sri.V.S.Hegde for the State. Perused the impugned judgment of conviction and order in terms of a sentence rendered by the trial court in S.C.No.97/2011. 5. Subsequently heard the arguments of the learned Public Prosecutor for the State and defence counsel for the accused and framing of a charge. On prima-facie materials found against the accused and framing the charge against the accused under Sec. 143, 147, 302 read with Sec. 149 of I.P.C., the charges shall be read out to the accused in the language known to them and the accused not pleaded guilty but claimed to be tried. Accordingly, heard the accused and recorded the evidence. 6. Subsequent to framing of charge against the accused, wherein the prosecution in order to establish the case against the accused led in evidence by examining PW-1 to PW-21 and marked Exs.P1 to P16 and so also got marked the material objects as M.Os.1 to 9 and subsequently, closed their side. Subsequent to closure of the evidence of the prosecution whereby the accused have been examined as required under Sec. 313 of Cr.P.C. recorded the statement, wherein the accused have denied the truth of the evidence of the prosecution adduced by them. Accordingly it was recorded separately. Subsequent to closure of the evidence of the prosecution whereby the accused have been examined as required under Sec. 313 of Cr.P.C. recorded the statement, wherein the accused have denied the truth of the evidence of the prosecution adduced by them. Accordingly it was recorded separately. Subsequent to recording the incriminating statement as contemplated under the aforesaid provisions of law and wherein the accused have been called upon to adduce the defence evidence as contemplated under Sec. 233 of the Cr.P.C. but they did not chose to lead any defence evidence. Accordingly, it was recorded but got marked Exs.D1 to D6 on their side. 7. Subsequent to closure of the evidence on the part of the prosecution and so also on the part of the defence, the Trial Court heard the arguments advanced by the learned Public Prosecutor for the State and the defence counsel for the accused. 8. P.W.1 - Mahadeva is none other than the author of the complaint at Ex.P1 and so also the father of deceased - Rajendra. Based upon his complaint the Criminal law was set into motion by registering FIR as per Ex.P16. His evidence has been considered by the trial Court inclusive of the contents in Ex.P2 of the inquest panchanama of the dead body and so also the contention of the P.M. report at Ex.P11 and this report issued by PW.17, who conducted autopsy of the dead body and also indicating the injuries inflicted on the deceased. Similarly also appreciating the contentions of Ex.P14 of the seizure mahazar said to have been conducted by the investigating officer during the course of investigation. These are all the evidence has let in by the prosecution in order to prove the guilt against the accused. Though the evidence has been let in and also PW.1 - Mahadeva who is none other than the father of the deceased - Rajendra and PW.6 - Nagaraju who is none other than the relative of the deceased. Ex.P2 has been held by the investigating officer in the presence of the punch witnesses and Ex.P14 seizure mahazar was also conducted by the investigating officer in the presence of the punch witnesses. Ex.P2 has been held by the investigating officer in the presence of the punch witnesses and Ex.P14 seizure mahazar was also conducted by the investigating officer in the presence of the punch witnesses. The mahazar held by the investigating officer having been seized M.O.1 and M.O.2 - stone, M.O.6 - pan, M.O.7 - one thread locket and such other material and based upon his evidence the trial Court arrived at a conclusion that the prosecution has proved guilt against accused beyond all reasonable doubt and rendered a conviction judgment relating to offences under Sec. 143, 147, 302 read with Sec. 149 of I.P.C. It is this judgment which has been challenged in this appeal by urging the various grounds. 9. Whereas the learned counsel Sri.G.M.Srinivas Reddy appearing for the appellants taken us through the evidence of PW.1 - Mahadeva who is none other than the father of the deceased - Rajendra and PW.6 who is none other than the relative of the deceased. But it is the domain vested with the prosecution to prove the guilt against the accused relating to motive. But whether the deceased was in such a position to bear his influence to fetch jobs for others according to the theory of the prosecution in charge sheet made by the investigating officer. But in the crossexamination of the parents of the deceased - Rajendra reveals that they do not know where their son namely Rajendra was working, when he joined to work in the factory at Bengaluru and they made a contradictory statement regarding his work, salary and also his contribution subsequent visit to his village. These are all the evidence that are on record on the part of the prosecution to prove the guilt against the accused. His father PW.1 who is author of the complaint in his evidence he has stated that his son Rajendra was working at Bengaluru since two months. Whereas his mother PW.2 - Nagamma stated in her evidence that Rajendra was working in a factory at Bengaluru since one year. But claims that he was receiving entire salary at Rs.7, 000.00. Whereas his mother PW.2 - Nagamma says in her evidence that he gave all his salary of Rs.6, 000.00 to her only not to her husband i.e., PW.1 - Mahadeva. But claims that he was receiving entire salary at Rs.7, 000.00. Whereas his mother PW.2 - Nagamma says in her evidence that he gave all his salary of Rs.6, 000.00 to her only not to her husband i.e., PW.1 - Mahadeva. These are all the contradictory evidence and so also contradictory statement which has made on the part of the prosecution but the material admission made by PW.2 - Nagamma is that on the previous date of the incident, the deceased had not come to his village. On assessment of the evidence on the part of the prosecution, PW.1 - Mahadeva and PW.2 - Nagamma, are the material witnesses who are the parents of the deceased - Rajendra. Their evidence even on close scrutiny, it is false or highly improbably to believe the theory of the prosecution relating to motive, factor and so also the intention to eliminate the deceased as narrated in the charge sheet and also the criminal law was set into motion by registering FIR and it is based upon the complaint at Ex.P1. This contention has been made by the learned counsel for the appellants and seeking intervention, if not intervened certainly there shall be miscarriage of justice and the accused persons would be the sufferers. These are all the contention that has been made by the learned counsel for appellants seeking intervention of the impugned judgment of conviction or order of sentence rendered by the trial Court. 10. The second limb of arguments advanced by the learned counsel for appellants that PW.17 being a doctor, whereby held autopsy of the dead body and issued P.M. report which indicates the following injuries: 1) A lacerated injury over right parieto-occipital region measuring 5x1 cm 2) abrasion over right scapular region measuring 2 x 1/2 cm 3) abrasion over right knee measuring 1x1 cm 4) abrasion over right thigh lateral aspect measuring 2x1 cm. 11. However, PW.17 being a doctor, who has issued a P.M. report and also rendered opinion for cause of death of the deceased as it is a death due to head injury. Apart from stating that the death is due to hemorrhage in brain, he has said nothing as to whether on account of the use of the material object projected in the case set up by the prosecution relating to the death of the deceased and also cause of death. Apart from stating that the death is due to hemorrhage in brain, he has said nothing as to whether on account of the use of the material object projected in the case set up by the prosecution relating to the death of the deceased and also cause of death. In the result, the inference could be drawn relating to the evidence of PW.17 is restricted only to an extent of cause of his death but not on account causative factor. Failure to corroborate that his death is due to assault by use of stones, material objects as alleged is fatal. These entries are very much require on the part of the prosecution to prove the guilt against the accused. But in the instant case, the prosecution has failed to establish the guilt against the accused proving that the death was caused by assault by means of stones, which was marked at M.O.1 and M.O.2. 12. In support of his contention, learned counsel for the appellants referring to the judgment rendered by the Hon'ble Supreme Court of India in the case of KARTAREY AND ORS. VS THE STATE OF UTTAR PRADESH reported in AIR 1976 SC 76 . In that reliance, in para No.25, it has been observed that it is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice. In this reliance as placed by the learned counsel for the appellants, keeping in view, the evidence of PW.17 being a doctor who subjected to held autopsy of the dead body and issued the P.M. report as per Ex.P11, wherein noticed some injuries inflected in the person of the deceased - Rajendra and M.O.1 and M.O.2 - stones said to have been recovered by the investigating officer during the course of the investigation. 13. The last limb of the arguments has been advanced by the learned counsel for the appellants by referring the evidence of PW.1 and PW.2, who are the parents of the deceased. 13. The last limb of the arguments has been advanced by the learned counsel for the appellants by referring the evidence of PW.1 and PW.2, who are the parents of the deceased. PW.2 is none other than the mother of the deceased, wherein she has stated in her evidence that her son Rajendra had come to their village 20 days prior to the incident. An astounding admissions by this witness is that one day prior to the alleged incident, her son had not come to the village. But this story has been set up by the prosecution and also deviating the theory of the prosecution relating to death of the deceased by the accused persons is animosity developed stating that by consuming alcohol took the deceased in their motor bike to the place of Kallahalli fair/jatra. PW.2 being a mother of the deceased - Rajendra had been subjected to cross-examination at length and the same has been ceased on the part of the prosecution. She has stated that she had given the statement to the police after 20 days of the incident, but she has admitted that she did not give such kind of statement. The statement of PW.1 and PW.2 said to have been recorded by the investigating officer and so also their evidence which are found to be contradictory versions on the part of the prosecution about the company of the deceased - Rajendra with the accused persons. Neither the statement of Halagamma nor that of Smt. Sudha is not forthcoming even in the charge sheet and the prosecution did not venture into recording their statements to pursuing whether the accused persons have committed the murder of the deceased - Rajendra by a motive factor. But the prosecution did nothing to cure this fact during the pendency of the case even before the trial Court. Whereas in this matter, the last seen theory is an important theory of the prosecution and it is domain vested with the prosecution to establish the guilt against the accused for conviction in an heinous offence under Sec. 302 of I.P.C. But the trial Court arrived at an erroneous conclusion that even though the prosecution did not facilitate the worthwhile and acceptable evidence in relation to the accused person committing the murder of the deceased by inflicting injury to the deceased - Rajendra. 14. 14. In support of his contention, the learned counsel for the appellants has placed reliance in the case of ASHOK VS. STATE OF MAHARASHTRA reported in 2015 AIR SCW 1823, wherein it was held that "the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of accused. However, in the instant case and so also in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Sec. 106 of Indian Evidence Act, 1872. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused etc., non-explanation of death of the deceased, may lead to a presumption of guilt". But Sec. 106 of the Indian Evidence Act, 1872 (for short 'the Act of 1872'), the role of the prosecution has to prove to the guilt against the accused. But in the instant case, the prosecution has failed to establish the guilt against the accused even the last seen theory set up. But the question of accepting the appellants to explain the incident from their mouth looses significance. By default it cannot be a conclusive proof against the accused person. In view of the above, learned counsel for the appellants herein ought to have emphatically submitting and contending that looking into utmost suspicion by the Court of law. On the contrary, the trial Court has failed to impart justice to the appellants being arrayed as accused and also facing up of a trial in the heinous offences under Sec. 302 of I.P.C. 15. Ss. 3 and 4 of the Act of 1872 relating to conclusive proof. That it is the domain vested with the prosecution to prove the guilt against the accused to facilitating the worthwhile evidence and equally the domain vested with the trial Court as to appreciate the evidence and also no scrutiny of the evidence inclusive of examination-inchief and so also cross-examination stood by the witnesses. That it is the domain vested with the prosecution to prove the guilt against the accused to facilitating the worthwhile evidence and equally the domain vested with the trial Court as to appreciate the evidence and also no scrutiny of the evidence inclusive of examination-inchief and so also cross-examination stood by the witnesses. But in the instant case, the trial Court has not appreciated the evidence in a proper perspective to arrive at a conclusion that the prosecution has proved the guilt against the accused for the heinous offence under Sec. 302 of I.P.C. 16. Whereas, the learned counsel for the appellants has placed reliance in the case of TULSIRAM KANU VS. STATE reported in AIR 1954 SC 1 , wherein the Hon'ble Supreme Court has addressed the issue with the concept of the presumption permitted to be drawn under Sec. 114 of the Act of 1872. The Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. This illustration has emphasized by the learned counsel for the appellants, keeping in view of the provision of Sec. 114 of the Act of 1872 and similarly Sec. 134 of the Act of 1872. But Sec. 134 of the Act of 1872 determines the quality of the evidence and not the quantity of the evidence. But the trial Court has not appreciated the evidence of PW.1 and PW.2 and these two witnesses are the vital witnesses on the part of the prosecution inclusive of the evidence of PW.17, being a doctor, who conducted autopsy of the dead body and had noticed the injury inflicted over the deceased person. Even Sec. 134 of the Act of 1872 reveals the quality of the evidence and not the quantity of the evidence. Even solitary evidence are suffice to arrival of the conclusion that the prosecution has proved guilt against the accused and suffice to convict the accused. Even Sec. 134 of the Act of 1872 reveals the quality of the evidence and not the quantity of the evidence. Even solitary evidence are suffice to arrival of the conclusion that the prosecution has proved guilt against the accused and suffice to convict the accused. But in the instant case, it is rest upon the circumstantial evidence, but the prosecution has failed to establish the case against the accused by facilitating the worthwhile evidence and so also in the nature of cogent, corroborating and acceptable evidence and to probablise that the accused alone committed the murder of the deceased - Rajendra. PW.2 who is none other than the mother of the deceased, has led the evidence on the part of the prosecution that her evidence has inclusive evidence of PW.1-Mahadeva who is none other than the father of deceased - Rajendra. But their evidence runs contrary to the evidence of PW.17 relating to infliction of injuries over the deceased person. Further contending that PW.18 - R.Manjunath, who is the investigating officer, investigated the case and laying the charge sheet against the accused and recorded the statement of witnesses and so also drew the mahazar at the presence of the punch witness such as Ex.P2 - inquest panchanama held over the dead body and Ex.P14 - seizure mahazar relating to seizure of certain material object and so also recording the statement of witnesses. But PW.8, PW.9, PW.10, PW.11, PW.12, PW.13 and PW.14 have been subjected to examination on the part of the prosecution and moreso, they had given statements before the investigating officer during the course of investigation. But they did not withstood the statements of the persons and they are contradictory thoughts such portions have been got it marked as per Ex.P3 to Ex.P10 respectively. Therefore, the evidence of PW.1 and PW.2 which runs contrary to the evidence of the aforesaid witnesses on the part of prosecution and the same has not been properly appreciated by the trial Court and also not properly scrutinized the evidence relating to rendering a conviction judgment. On all these premises, learned counsel for the appellants in this matter emphatically submitting for intervention or needs, if not intervened certainly the gravamen of the accusation would be the sufferers and also some substantial miscarriage of justice. On all these premises, learned counsel for the appellants in this matter emphatically submitting for intervention or needs, if not intervened certainly the gravamen of the accusation would be the sufferers and also some substantial miscarriage of justice. Looking all these premises, the learned counsel for the appellants seeking for release of the accused by setting aside the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.97/2011. 17. On contraverted to the arguments advanced by the learned counsel for the appellants, the learned HCGP for the State, namely, Sri.H.S.Shankar has contended that based upon the complaint, the criminal law was set into motion by writing an FIR as per Ex.P16 under Sec. 154 of Cr.P.C. Even the case relating to cognizable in the nature, soon after receipt of a complaint, the criminal law was set into motion and registered the FIR. Accordingly, the investigating officer has registered the case and then proceed with the matter and during the investigation, held autopsy of the dead body of Rajendra as per Ex.P2 and also recorded the statement of witnesses, who are the nearest relatives of the deceased and drew the mahazar as per Ex.P14 in the presence of the panch witnesses and so also having been seized M.O.1 and M.O.2 - stones said to have been used by the accused person relating to causing of the injury inflicted over the deceased. These are all the evidence as let in by the prosecution to prove the guilt against the accused and the same has been appreciated by the trial Court while rendering a conviction judgment, where the accused took the deceased in their motor bike. Some enmity was developed in between them and the same was resulted in committing the murder by inflicting the injuries and the same can be seen in the evidence of PW.17 - the doctor, who had conducted autopsy of the dead body and issued the P.M. report as per Ex.P11. Therefore, learned HCGP for State in this matter emphatically submitted that the learned counsel for the appellants had cited certain reliance and also dwelling in detail about evidence of PW.1, PW.2 and PW.17. PW.18 - R.Manjunath, who led the charge sheet against the accused. Therefore, learned HCGP for State in this matter emphatically submitted that the learned counsel for the appellants had cited certain reliance and also dwelling in detail about evidence of PW.1, PW.2 and PW.17. PW.18 - R.Manjunath, who led the charge sheet against the accused. These are all the evidence which has been appreciated by the trial Court and rightly comes to the conclusion that the last seen theory has been established by let in the evidence of PW.1 and PW.2 whereby the deceased - Rajendra was accompanying with the accused persons in their motor bike and committed the murder and the same can be ceased on the part of the prosecution. Therefore, the contentions which was made by the learned counsel for the appellants seeking for a intervention of the impugned judgment of conviction and order of sentence does not arise. Consequently dismissal of this appeal as devoid of merits and confirm the judgment of conviction and order of sentence rendered by the trial Court. 18. It is in this back ground of the contention made by the learned counsel for the appellants and inclusive of the learned HCGP for the State which is based upon the evidence let in by the prosecution and the evidence of PW.1 - Mahadeva, who is the author of the complaint - Ex.P1 and so also being the father of the deceased - Rajendra and PW.2 - Nagamma, who is none other than the mother of deceased - Rajendra, these two witnesses have been subjected to examination and moreso, they are the vital witnesses on the part of the prosecution relating to the theory, which has indicated on the part of the prosecution. The FIR has been recorded based upon Ex.P1 made by P.W.1 - Mahadeva. Therefore, in the instant case, it requires to refer Sec. 154 of the Cr.P.C, but it is not a substantive case of the evidence. It is only used to contrary or corroborate the matter thereof. Accordingly, the Hon'ble Supreme Court addressed the issue in a judgment of SRI SAMBHU DAS @ BIJOY DAS & ANR VS. Therefore, in the instant case, it requires to refer Sec. 154 of the Cr.P.C, but it is not a substantive case of the evidence. It is only used to contrary or corroborate the matter thereof. Accordingly, the Hon'ble Supreme Court addressed the issue in a judgment of SRI SAMBHU DAS @ BIJOY DAS & ANR VS. STATE OF ASSAM reported in AIR 2010 SCC 3300 a mere information received by the police against without any details as regards the accused person for involvement of commission of offence even the nature of injuries caused by the deceased as well as the name of the culprits may not be treated as FIR. This issue was also in a greater extent addressed by the Hon'ble Supreme Court of India. Therefore, this settled position of law relating to receipt of information and recording the FIR and thereafter to proceed with the case for investigation. 19. In the instant case which is relating to the death of the deceased - Rajendra by committing the murder of him and the appellants being arrayed as accused and so also the motive factors relating to some enmity developed between the accused and the deceased in connection with the deceased did not provide alcohol to the accused person. These are all the material evidence found in the record even though the charge sheet has been led by the investigating officer. But it is the duty cast upon the prosecution to prove the guilt against the accused beyond all reasonable doubt to convict them. 20. The appellate Court should not normally reappreciate the evidence and it was extensively addressed by the Hon'ble Supreme Court in the case of STATE OF WEST BENGAL VS. KAILASH CHANDRA PANDEY reported in AIR 2012 SC 119. Whereas the judgment rendered by the Hon'ble Supreme Court in the case of PADAM SINGH VS STATE OF U.P reported in AIR 2000 SC 361 , the Hon'ble Supreme Court has addressed the role of the appellate Court, wherein it is the duty of the appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the evidence can be relied upon or not? and even it can be relied upon, whether prosecution said to have been proved beyond all reasonable doubt on the said evidence. and even it can be relied upon, whether prosecution said to have been proved beyond all reasonable doubt on the said evidence. The credibility of the witness has to analyse by the appellate Court in drawing inference from proved and admitted facts. Therefore, the duty cast upon even the trial Court under Sec. 3 of the Act of 1872 relating to appreciation of the evidence and also close scrutiny of the evidence, inclusive of examination-in-chief and so also the cross-examination it is on the part of the defence side. Therefore, the law which is clearly expects that the appellant Court would dispose of the appeal on merits not merely by perusing the reasoning of the trial Court in the judgment rendered. But by cross checking the reasoning within the evidence on record with a view to satisfying itself the reasoning and the findings recorded by the trial Court are consisted with the materials on record. This issue has extensively addressed by the Hon'ble Supreme Court of India in a judgment of MAHENDRA SINGH AND ORS. VS STATE OF RAJASTHAN reported in AIR 1997 (3) Crimes 102 Rajastan. However, it is relevant to the judgment of LALIT KUMAR SHARMA AND ORS. VS SUPERINTENDENT AND REMEMBRANCER OF A LEGAL APPEAL, GOVERNMENT OF WEST BENGAL reported in AIR 1989 SC 2134 . In this judgment, the Hon'ble Supreme Court had extensively addressed this Court and also the power of the appellate Court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions, but the appellate Court should be slow in interfering with the orders of acquittal. But the conviction cases are concerned, it is a domain vested within the appellate Court to heal the entire matter dwelling in detail about the evidence i.e., the examination-in-chief and also cross-examination as well as other material which facilitated by the prosecution. But in the instant case, it is relevant to refer the judgment rendered by the Hon'ble Supreme Court in the case of SHARAD BIRDHICHAND SARDA V. STATE OF MAHARASHTRA reported in (1984) 4 SCC 116 . In this judgment, the Hon'ble Supreme Court had addressed the issue relating to circumstantial evidence and so also scope of the provision of the Act of 1872 and so also the benefit and interference by Hon'ble Supreme Court even under Article 136 of the Constitution of India, 1950. In this judgment, the Hon'ble Supreme Court had addressed the issue relating to circumstantial evidence and so also scope of the provision of the Act of 1872 and so also the benefit and interference by Hon'ble Supreme Court even under Article 136 of the Constitution of India, 1950. But in this judgment, at para No.153, it reveals 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. Firstly, the circumstances from which the 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. 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 & ANR. V. STATE OF MAHARASHTRA, wherein it was reported in SCC (CRIME) 1047 held that 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. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 21. The paragraph 156 of the judgment reveals that Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render the commission of the crime certain'. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 21. The paragraph 156 of the judgment reveals that Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render the commission of the crime certain'. This paragraph also reveals that it indicates the cardinal principle' of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 22. Whereas in paragraph 163 of the aforesaid judgment, when we pass on to another important point which seems to have been completely missed by the High Court, it is well settled that whether the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits the accused and the accused is undoubtedly entitled to the benefit of doubt. IN KALI RAM V. STATE OF HIMACHAL PRADESH reported in SCC (CRIME) 1060 this Court made the following observations: "Another golden thread which runs through the web of the 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 This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence." 23. Subsequent to filing of this judgment rendered by the Hon'ble Supreme Court of India whereby rendering a judgment in the case of RAM NIWAS VS. THE STATE OF HARYANA reported in AIR 2022 SC 3748 . In this judgment, para No.18, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystallized in the judgment of this Court in the case of SHARAD BIRDHICHAND SARDA VS. STATE OF MAHARASHTRAREPORTED in AIR (1984 )4 SCC 113 equallent to AIR 1984 SC 1622 . In this judgment, para No.18, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystallized in the judgment of this Court in the case of SHARAD BIRDHICHAND SARDA VS. STATE OF MAHARASHTRAREPORTED in AIR (1984 )4 SCC 113 equallent to AIR 1984 SC 1622 . In this judgment, in para No.153 has been made an observation that the facts so established should be consistent only with the hypothesis of the guilt of the accused i.e., to say 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. 24. In the judgment of (1984) 4 SCC 116 4 the five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 25. Apart from the reliances which has been placed by the learned counsel and facilitate one more reliance of ASHOK @ MADIWALLAPPA AND OTHERS VS. STATE OF KARNATAKA THROUGH SUB-URBAN P.S., reported in 2021(5) KCCR 1052, whereas in this judgment the Division Bench of this Court had addressed the issues relating to the scope of Sec. 302 and 106 of the Act of 1872. Whereas the Conviction appeal -Last seen theory-Burden to rebut lies on the accused-Circumstance of last seen alone cannot discharge the burden of establishing the guilt of the accused-Presence of accused in the vicinity where the deceased was found lying injured-All the places are public places having access to public-Pancha witness to seizing of MO's turned hostileprosecution failed to establish weapons used for assaultChain of events not proved. Therefore these reliances are squarely applicable to the present case on hand and the same may be consider. 26. In the present case, wherein the theory has been set up by the prosecution that last seen theory and also the motive factor which the accused having an intention to eliminating the deceased - Rajendra. Therefore these reliances are squarely applicable to the present case on hand and the same may be consider. 26. In the present case, wherein the theory has been set up by the prosecution that last seen theory and also the motive factor which the accused having an intention to eliminating the deceased - Rajendra. But we find that the prosecution has utterly failed to establish the chain of events which can be exclusively lead to the one and only conclusion is the guilt of the accused. In that view of the matter we find that the judgment and order of the Trial Judge are not sustainable. In the instant case even on close scrutiny of the evidence and even the totality of the circumstances of the case it is found that the trial Court had misread the evidence and also arrival of a conclusion erroneously opened that the prosecution has proved the guilt against the accused with beyond all reasonable doubt. Therefore, in this appeal, it requires intervention or needs, if not intervened certainly there shall be miscarriage of justice and the accused persons would be the sufferers. However it is made it clear that the trial Court has not appreciating the evidence in a proper perspective and the evidence of the prosecution are found to be suffer from infirmity. 27. In view of the aforesaid reasons and findings, we proceed to pass the following: ORDER 1) The appeal preferred by the appellants/accused under Sec. 374(2) of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and the order of sentence rendered by the trial Court in S.C.No.97/2011 dtd. 19/1/2017 is hereby set aside. However, consequent upon setting aside the impugned judgment of conviction, whereby the accused being the appellants herein acquitted for the offences punishable under Sec. 143, 147, 302 read with Sec. 149 of IPC, for which they have charged. 2) If the accused are executing the bail bond, the bail bond shall stand cancelled. 3) If the appellants/accused deposited the fine amount, if any, in pursuance of the order passed by the trial Court the same shall be refunded to the accused on proper identification. Ordered accordingly.