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2023 DIGILAW 877 (KAR)

Mallikarjuna v. State of Karnataka

2023-07-13

K.SOMASHEKAR, RAJESH RAI K.

body2023
JUDGMENT K.SOMASHEKAR, J. - This appeal is directed against the judgment of conviction and order of sentence dtd. 27/3/2017 rendered by the Court of the III Addl. District & Sessions Judge, Bengaluru Rural District, sitting at Anekal in S.C.No.53/2010 for offences punishable under Ss. 302 and 201 of the IPC. For the offence under Sec. 302 of the IPC, each of the appellants / Accused Nos.1 to 7 were sentenced to undergo imprisonment for life and to pay a fine of Rs.20, 000.00 each and in default of payment of fine, they were to undergo simple imprisonment for a period of one year; further, for the offence punishable under Sec. 201 IPC, they were sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.15, 000.00 each and in default of payment of fine, each of them were to undergo simple imprisonment for nine months. Both the sentences were to run concurrently. 2. The appellants / Accused Nos.1 to 7 have preferred the present appeal seeking to allow the appeal and to thereby acquit the appellants / accused for offences under Ss. 302 and 201 of the IPC, having regard to the grounds urged therein. 3. Heard the learned counsel Shri Prasanna Kumar P for the appellants / accused and the learned HCGP Shri Krishna Kumar K.K. for the respondent / State. Perused the impugned judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.53/2010 consisting of the evidence of PW-1 to PW-22, the documents at Exhibits P1 to P27 on behalf of the prosecution, the documents at Exhibits D1 to D4 on behalf of the accused and the material objects marked at MO-1 to MO-15. 4. The factual matrix of this appeal is as under: It transpires from the case of the prosecution that Accused No.1 / Mallikarjuna @ Balaji @ Chinna @ Arjun had borrowed a sum of Rs.8, 00, 000.00 (Rupees Eight Lakhs only) from the deceased Sridhar. It is said that the deceased Sridhar was frequently demanding Accused No.1 to repay the said borrowed amount. In that regard, an enmity had developed in between the deceased and accused persons. Therefore, it is said that Accused No.1 had hatched a criminal conspiracy with Accused Nos.2 to 7 to commit the murder of the said Sridhar. It is said that the deceased Sridhar was frequently demanding Accused No.1 to repay the said borrowed amount. In that regard, an enmity had developed in between the deceased and accused persons. Therefore, it is said that Accused No.1 had hatched a criminal conspiracy with Accused Nos.2 to 7 to commit the murder of the said Sridhar. Accordingly, as on 10/2/2010 in between 11.58 a.m. and 1.00 p.m., the accused persons had committed the murder of the deceased Sridhar and in order to screen themselves from legal punishment, tried to have burnt the dead body of Sridhar. However, the body remained half burnt. In pursuance of the act of the accused, on the filing of a complaint by the complainant namely CW-2 cited as a witness in the charge-sheet as per Exhibit P8, criminal law was set into motion by recording an FIR as per Exhibit P18. But another complaint is also got marked at Exhibit P17 and one more FIR was also said to be recorded as per Exhibit P21. Subsequent to recording the FIR and setting the criminal law into motion, the Investigating Officer has taken up the case for investigation and during investigation, he recorded the voluntary statement of Accused No.1 as per Exhibit P22 and voluntary statement of Accused No.4 as per Exhibit P23, voluntary statement of Accused No.3 as per Exhibit P24, voluntary statement of Accused Nos.5, 6 and 7 as per Exhibit P25, as per Exhibit P26 and as per Exhibit P27 and based upon their voluntary statements, the Investigating Officer had proceeded with the investigation of the case by conducting several mahazars such as Exhibits P1, P2, P3, P4, P5, P6, P9, P11, P12, P13, P14 and P19, all of them being panchanamas. These are the mahazars said to have been drawn by the Investigating Officer in the presence of panch witnesses who were secured such as PW-1, PW-2, PW-4, PW-5, PW-12, PW-3, PW-6, PW14, PW-7, PW-13, PW-11, PW-15, PW-22 and PW-21. These are the mahazars said to have been drawn by the Investigating Officer in the presence of panch witnesses who were secured such as PW-1, PW-2, PW-4, PW-5, PW-12, PW-3, PW-6, PW14, PW-7, PW-13, PW-11, PW-15, PW-22 and PW-21. They are the witnesses secured by the Investigating Officer and in their presence the aforesaid several panchanamas have been drawn by the Investigating Officer and so also the Statement of witnesses were recorded and DNA report was secured at Exhibit P15 and so also during the course of investigation, they have seized MO-1 to MO-15 wherein MO-9, MO-10 and MO-11 being gold ring, gold chain and MO-1 mobile and other articles which were seized also were subjected in P.F. The entire investigation was completed and the Investigating Officer laid the charge-sheet against Accused Nos.1 to 7 before the Committal Court for offences under Sec. 302 and Sec. 201 of the IPC. Subsequently, the Committal Court had passed an order as contemplated under Sec. 209 of the Cr.P.C. and committed the case to the Court of Sessions for trial. 5. Subsequent to committing the case to the Court of Sessions, Accused Nos.1 to 7 were secured to face trial. Accordingly, in S.C.No.53/2010, the Trial Court heard the arguments of the learned Public Prosecutor and so also defence counsel on framing of charge. On prima facie material being found against each one of the accused Nos.1 to 7 respectively, charges were framed against Accused Nos.1 to 7 for the offences reflected in the FIR. The charges were read over to the accused persons in a language known to them and they have declined the charges made against them. Accordingly, the plea of the accused was recorded separately but the accused claimed to be tried. 6. Subsequently, the prosecution, in order to prove the guilt against the accused, examined in all PW-1 to PW-22 and got marked several documents at Exhibits P1 to P27 and got marked MO-1 to MO-15 on the part of the prosecution. Exhibits D1 to D3 are the photos and Exhibit D4 is the receipt issued by the petrol bunk and these documents have been got marked on the part of the defence side. 7. Exhibits D1 to D3 are the photos and Exhibit D4 is the receipt issued by the petrol bunk and these documents have been got marked on the part of the defence side. 7. Subsequent to closure of the evidence on the part of the prosecution, Accused Nos.1 to 7 have answered to the incriminating statements recorded by the Trial Court as contemplated under Sec. 313 Cr.P.C. whereby the accused have declined the incriminating evidence appearing against them and accordingly it was recorded separately. Subsequent to recording the incriminating statements of the accused, the Trial Court had called upon the accused to enter into defence evidence if any. But the accused did not choose to let any defence evidence. Accordingly, it was recorded. 8. Subsequent to closure of the evidence on the part of the prosecution as well as on the part of the defence, in terms of the relevant provisions of the Cr.P.C., the Trial Court had heard the arguments advanced by the Public Prosecutor and also the counter arguments advanced by the defence counsel for the accused, and on an examination of the evidence of the witnesses inclusive of the exhibited documents, rendered a conviction judgment against the accused for the offences under Sec. 302 and Sec. 201 IPC. It is this judgment which is under challenge in this appeal by urging various grounds. 9. Learned counsel Shri P. Prasanna Kumar for the appellants / Accused Nos.1 to 7 contends that the impugned judgment of conviction and order of sentence passed by the III Addl. District and Sessions Judge, Bengaluru Rural District, sitting at Anekal is contrary to law, facts and evidence available on record, and as such the same is liable to be set-aside. 10. PW-8 / Smt. Shubha being the wife of the deceased Sridhar, is the author of the missing complaint at Exhibit P7 and she has identified the burnt dead body of her husband Sridhar and also identified the belongings of the deceased. But she has not mentioned in her complaint at Exhibit P7 about Accused No.1 or Accused No.2 coming to their house to borrow money from her husband. There is no agreement or anything in writing to show that Accused No.1 had borrowed Rs.8, 00, 000.00 from the deceased Sridhar. But she has not mentioned in her complaint at Exhibit P7 about Accused No.1 or Accused No.2 coming to their house to borrow money from her husband. There is no agreement or anything in writing to show that Accused No.1 had borrowed Rs.8, 00, 000.00 from the deceased Sridhar. Hence, her evidence to the effect that accused had gone to her house and had borrowed a sum of Rs.8, 00, 000.00 from her husband Sridhar, has no basis at all. This PW-8 / Shubha has been subjected to cross-examination and her evidence has been dismantled and does not inspire confidence in the mind of the Court to arrive at a conclusion that the prosecution has proved the guilt against the accused. PW10 / Murugeshan, PW-11 / Selvaraj, PW-12 / Joraram Choudri, PW-13 / W.C. Chandrashekar are witnesses who have been subjected to examination on the part of the prosecution. But nothing worthwhile has been elicited in their chief examination to believe the theory put forth by the prosecution that Accused Nos.1 and 2 along with the other accused have committed the murder of Sridhar. PW-16 / Mahesh Kumar who is an official witness during investigation, it was found that Accused Nos.1 and 2 were missing and on enquiring, it was found that they were residing in Mumbai. Subsequently they were apprehended at Mumbai on 27/2/2010. Further on 1/3/2010, a team of police officials went to Chennai in order to search the other accused and apprehended them and produced before the Investigating Officer. Though the prosecution has let in several witnesses to prove the guilt of the accused, but has not been able to establish the guilt against the accused by facilitating cogent, consistent, corroborative and so also acceptable evidence that the accused have committed the murder of the deceased Sridhar. But the investigation reveals that Accused Nos.1 and 2 have committed the murder of the deceased and burnt the dead body of the deceased Sridhar. MO-7 / Wrist watch belonging to deceased Sridhar came to be seized near Chandapura Railway Bridge by drawing a mahazar at Exhibit P6. The said watch was identified through his wife PW-8 / Shubha. But the criminal law was set into motion on receipt of a complaint by the said Shubha. MO-7 / Wrist watch belonging to deceased Sridhar came to be seized near Chandapura Railway Bridge by drawing a mahazar at Exhibit P6. The said watch was identified through his wife PW-8 / Shubha. But the criminal law was set into motion on receipt of a complaint by the said Shubha. But her evidence is not corroborated with any other independent witnesses in order to prove the guilt against the accused to secure conviction for offences under Sec. 302 and Sec. 201 of the IPC. 11. Lastly, the learned counsel for the accused vehemently contended that the Trial Court has misdirected the evidence of the prosecution witnesses and also misinterpreted the evidence let in by the prosecution which is contrary to law and facts and also evidence available on record. It is contended that the reasons assigned by the learned Sessions Judge in impugned judgment are erroneous resulting in a substantial miscarriage of justice to the appellants. Further, the learned Sessions Judge has failed to take note of the fact that PW-21 / B.S. Manjunath during his cross examination, has deposed that they went to Mumbai to apprehend Accused Nos.1 and 2 via private vehicle whereas PW-14 / Nataraj, S/o. Narayanaswamy has deposed that they went through flight. The said inconsistency is a material defect in the case of the prosecution and the same has not at all been considered by the learned Sessions Judge. It is further contended that PW17 / Shri Lakshmi Balasubramaniam has admitted that if there are identical twins, then the DNA profile will be the same. Such being the case, the prosecution has failed to conclusively establish the identity of the accused persons. These facts have not at all been considered by the learned Sessions Judge. Hence it is contended that as such the appellants are entitled for an order of acquittal. 12. It is further contended that the learned Sessions Judge has miserably failed to take note of the fact that the prosecution has failed to establish the alleged enmity between the deceased and the accused persons. As such there was no motive for the accused persons to commit the murder of the deceased. Further, the prosecution has not recovered any incriminating article at the instance of the appellants. When such being the case, the impugned judgment and order of conviction is unsustainable as against these appellants are concerned. 13. As such there was no motive for the accused persons to commit the murder of the deceased. Further, the prosecution has not recovered any incriminating article at the instance of the appellants. When such being the case, the impugned judgment and order of conviction is unsustainable as against these appellants are concerned. 13. DNA analysis of the blood sample of the parents of the deceased proved that the dead body was that of the deceased Sridhar. It is contended that if there are identical twins, then the DNA profile will be the same. Such being the case, the Trial Court has failed to establish the identity of the deceased person. On this premise also learned counsel seeks for intervention. 14. It is further contended that the mahazar witnesses cited by the prosecution, have not completely supported the case of the prosecution and that there are material discrepancies even in their evidence which go to the very root of the case of the prosecution and as such the recovery of the article at the instance of the appellants would have no legs to stand. Hence the impugned judgment and order of conviction and sentence is unsustainable and the same is liable to be set-aside. Hence, it is contended that if the judgment of the learned Sessions judge is not set aside in this appeal, it would result in a substantial miscarriage of justice. On these grounds, the learned counsel for the appellants seeks to allow the present appeal and to thereby set aside the judgment of conviction and order of sentence dtd. 27/3/2017 rendered by the III Addl. District & Sessions Judge, Bengaluru Rural District, Sitting at Anekal in S.C.No.53/2010 and consequently acquit the appellants of the alleged offences. 15. On the contrary, learned HCGP Shri Krishna Kumar K.K. for the respondent / State contends that the entire evidence of the prosecution is circumstantial in nature and chain of circumstances would bring home the guilt of the accused as established by the prosecution by facilitating the evidence of PW-8 / Subha and PW-16 / Mahesh Kumar and PW-21 / B.S. Manjunath being official witnesses. 16. 16. Learned HCGP contends that PW-8 / Smt. Shubha, being the wife of the deceased Sridhar has stated in her evidence that the first accused namely Mallikarjuna @ Balaji @ Chinna @ Arjun had visited her house to sort out some financial dealings of Accused Nos.1 and 2 with the deceased Sridhar. She has specifically stated in her evidence that Accused Nos.1 and 2 are said to have visited the house of the deceased and demanded for money frequently. Therefore, Accused No.2 used to take that money by coming to their house. Accused Nos.1 and 2 had borrowed a sum of Rs.8, 00, 000.00 for their financial business. But in fact she has referred about some financial dealings of her husband namely Sridhar with the accused in Exhibit P7 of the missing complaint made by her. In view of examining her after a lapse of 4 years of the occurrence of the incident, some discrepancies have arisen in the evidence of PW-8. As noticed by the Trial Court, the said discrepancies would not cut the root of the prosecution theory relating to the incident of the accused having committed the murder of the deceased Sridhar and concealing his dead body in order to screen themselves from legal punishment. PW-8 has been subjected to crossexamination at length but in her cross-examination, the defence counsel did not elicit any acceptable evidence as regards the incident narrated in her missing complaint and disbelieved the theory of the prosecution. But Exhibit D series at Exhibits D1 to D4 have been got marked on the defence side as relevant portion. The same was confronted to the Investigating Officer who is examined as PW-21. This PW-8 has been subjected to thorough cross-examination and she has specifically stated that on 9/2/2010 her husband Sridhar made a phone call to the first accused Balaji and demanded him to repay the borrowed amount. As on 10/2/2010, deceased Sridhar went in a car bearing No.KA-05/1665 stating that he would meet the first accused / Mallikarjuna @ Balaji and get back the borrowed money from him. But on the aforesaid date, at around 12.40 p.m., calls made to his mobile were not received by her husband. But the said calls were thereafter diverted to her mobile at around 3.00 p.m. Though she received the telephone call, nobody responded to her call on the either side. But on the aforesaid date, at around 12.40 p.m., calls made to his mobile were not received by her husband. But the said calls were thereafter diverted to her mobile at around 3.00 p.m. Though she received the telephone call, nobody responded to her call on the either side. She had informed the said fact to the friends of her husband Sridhar. The aforesaid evidence that the deceased Sridhar had gone on that day in the morning and thereafter his whereabouts could not be known also, remained unchallenged even though she has stood for cross-examination. Her evidence finds corroborated with the evidence of PW-21 / Investigating Officer in respect of the contents at Exhibit P7 of the missing complaint. 17. PW-21 / I.O. has got identified the watch and clothes of the deceased Sridhar. PW-22 / A. Yelagaiah has specifically stated in his evidence that the accused led the police to the place where chilly powder was thrown and drew the mahazar as per Exhibit P13. PW-15 / R.C. Chandra though has subscribed his signature to Exhibit P13, he has not supported the case of the prosecution. But the motive factor for the incident relating to the accused persons being the perpetrator and so also they having committed the murder of Sridhar as there was an enmity developed between the accused and the deceased, is proved. 18. He has also taken us through the evidence of the prosecution witnesses and also the charges lugged against the accused and more importantly Accused No.1 with the assistance of Accused No.2 having borrowed a sum of Rs.8, 00, 000.00 from the deceased Sridhar and when the deceased Sridhar started demanding him to repay the borrowed amount, an animosity developed between the accused and the deceased. It is contended by the learned HCGP that on information given by PW-10 / Murugeshan to the V.A.O about a burnt dead body lying near the water channel, the said V.A.O. Sri. Abdul had filed a complaint as per Exhibit P8. The said dead body was decomposed and unidentified. Thereafter the police visited the spot and drew a mahazar as per Exhibit P9 and seized the blood stained mud, ordinary mud and water cans. Thereafter, on 15/2/2010 the car of the missing person was traced at Chennai. Hence, PW-21 / I.O. went to Chennai and seized the said car by drawing a mahazar as per Exhibit P19. Thereafter the police visited the spot and drew a mahazar as per Exhibit P9 and seized the blood stained mud, ordinary mud and water cans. Thereafter, on 15/2/2010 the car of the missing person was traced at Chennai. Hence, PW-21 / I.O. went to Chennai and seized the said car by drawing a mahazar as per Exhibit P19. Thereafter, the wife of the deceased namely PW-8 / Smt. Shubha got released the said car by producing the relevant documents. Thereafter, PW-21 / I.O. received information that a burnt dead body of an unidentified person was found at Pallikonda Village of Tamil Nadu, which body was kept in Government Hospital, Vellore. Hence, relatives of missing person went along with the I.O. and identified the said dead body as the one of the deceased Sri. Sridhar. The wife of the deceased namely PW-8 / Shubha had also identified the dead body to be that of her husband. Further, the Doctors had collected the blood samples of the parents of the deceased Sri Sridhar in order to conduct DNA analysis. The DNA analysis also proved that the dead body was of the deceased Sridhar. Further, gold chain of the deceased at MO-11 and two gold rings marked as MO-9 and MO-10 / motor cycle were recovered by drawing a panchanama at Exhibit P3. It is no doubt true that based on the missing complaint made by PW-8 / Shubha, Accused Nos.1 and 2 along with other accused were apprehended by the police and accused were put on trial relating to offences under Ss. 302 and 201 of the IPC. A cursory glance of the entire evidence on the part of the prosecution reveals that the prosecution has successfully proved the guilt against the accused. Therefore, the Trial Court has rightly come to the conclusion and rendered a conviction judgment for offences punishable under Sec. 302 and Sec. 201 of the IPC. Therefore in this appeal, it does not arise to call for any interference of the impugned judgment of conviction and sentence since the accused have committed the murder of the deceased Sridhar and have burnt his dead body and also have caused disappearance of evidence in order to screen themselves from legal punishment. Therefore, it does not arise to call for interference the judgment of conviction and order of sentence even on re-appreciation of the same. Therefore, it does not arise to call for interference the judgment of conviction and order of sentence even on re-appreciation of the same. Consequently, learned HCGP seeks to dismiss this appeal as being devoid of any merits. 19. In the context of contentions made by the learned counsel for the appellants / accused and so also the counter arguments advanced by the learned HCGP Shri Krishna Kumar K.K., in this matter, it requires to examine certain important evidence on the part of the prosecution. In this regard, it is required to establish strong circumstances, circumstantial evidence, motive factor which bears an important significance. Motive always locks-up in the mind of the accused and sometime it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. 20. But the law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: i) the circumstance from which an inference of guilt sought to be drawn, must be cogently and firmly established; ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; iii) circumstances taken cumulatively should form the chain complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with guilt of the accused but should be inconsistent with his innocence. Suspicion, however grave it may be, cannot take the place of proof. 21. Mere identification of the dead body of the deceased by his relatives including his wife in the absence of any other evidence connecting the accused persons with the murder is not enough to fasten the guilt upon the accused, although there may be suspicion against the accused persons. But suspicion, however strong it may be cannot be valid substitute for proof. The chain of circumstances which has been established on the basis of reliable evidence the credibility of which has not in any manner been impeached by cross-examination and which evidence gets support from DNA analysis that the death occurred on the account of the injuries inflicted upon the deceased. The chain of circumstances which has been established on the basis of reliable evidence the credibility of which has not in any manner been impeached by cross-examination and which evidence gets support from DNA analysis that the death occurred on the account of the injuries inflicted upon the deceased. But in the instant case, the death occurred due to enmity in between Accused Nos.1 and 2 and the deceased with the assistance of the remaining accused. There is an allegation that the accused persons committed the murder of the deceased. However, except the say of PW-8 / Shubha that accused persons had borrowed money from her husband Sridhar and when Sridhar persistently started demanding repayment of the said money from the accused, the accused had hatched a criminal conspiracy and committed the murder of Sridhar, there is no other evidence to establish that the accused persons had committed the murder of the deceased and burnt his dead body. Further, there is no written evidence to show that deceased Sridhar had lent a sum of Rs.8, 00, 000.00 to Accused No.1. The allegations made by PW-8 against the accused persons have not been proved by the prosecution by producing convincing evidence as regards the same. The entire case of the prosecution rests on circumstantial evidence. Further, as regards the last seen theory, the foundation of this theory lies on the principle of probability, cause, and connection as no fact takes place in isolation. Basically, it means that if an event takes place then other events also take place which are the probable consequences of a major event or is related to it either retrospectively or prospectively. These inferences or presumptions are drawn logically according to how a reasonably prudent man will connect the dots in the particular scenario. Even the presumption of fact is taken under Sec. 114 of the Indian Evidence Act under which the Court can presume that certain facts exist if some other facts are proved to be existing in the cases of natural events, human conduct, and public and private business. For instance, if A was the last person seen with B just before his murder then it can be presumed that A murdered B under this theory because A had adequate opportunity to commit the crime. For instance, if A was the last person seen with B just before his murder then it can be presumed that A murdered B under this theory because A had adequate opportunity to commit the crime. But this presumption is not considered as conclusive proof for the guilt of the person and these presumptions are rebuttable by the accused. It only shifts the onus on the person to prove that he is innocent which is an exception in the criminal law as the burden of proving the guilt of the accused is on prosecution. Thus, the fact of last seen should also be supported by other factors in such a way that the circumstances are unerringly determinative in nature and conclusively prove the guilt of the person. The court needs to be on guard while deciding upon these kinds of matters. 22. In the judgment of BABU VS. STATE OF KERALA ( (2010) 9 SCC 189 )) relating to doctrine of innocence, it is held that criminal trial - proof - burden and onus of proof - reversal of burden of proof - when permissible - presumptions - presumption of innocence - Constitution of India - Articles 21 and 14. It is held "every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice of mistaken conviction." In the same reliance it is also held that in a criminal trial - circumstantial evidence - generally - burden of proof - in case of circumstantial evidence burden on prosecution is always greater. Further, in respect of criminal trial - circumstantial evidence - motive - relevance - absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of accused - in a case of circumstantial evidence, motive must be established at least to a certain extent. 23. Further, in respect of criminal trial - circumstantial evidence - motive - relevance - absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of accused - in a case of circumstantial evidence, motive must be established at least to a certain extent. 23. Whereas in the case of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 it is relevant to refer to para 163 which reads as under: "We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, 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." 24. In the instant case, it is relevant to refer to the judgment of Hon'ble Supreme Court in the case of Ram Niwas vs. State of Haryana (Criminal Appeal No.25 of 2012) wherein it is held as under: "The prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, wherein this Court held thus: "152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [ AIR 1952 SC 343 ]. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [ AIR 1952 SC 343 ]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [ (1969) 3 SCC 198 ] and Ramgopal v. State of Maharashtra [ (1972) 4 SCC 625 ]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [ AIR 1952 SC 343 ] : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circum stances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 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 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. 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 [ (1973) 2 SCC 793 ] where the 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." 19. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a 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. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused 'must be' and not merely 'may be' guilty before a Court can convict. 20. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt." 25. 20. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt." 25. PW-21 / I.O. as on 27/2/2010 after collecting the mobile phones and doubts expressed by the informants, had arrested Accused Nos.1 and 2 at Mumbai. PW-16 / Mahesh Kumar had also deposed that he accompanied PW-21 while arresting Accused Nos.1 and 2 at Mumbai. Though PW-21 during his cross-examination has deposed that they went to Mumbai by a private vehicle, PW-16 has deposed that they went by Flight. The inconsistency in both of their statements looms large in spite of the fact that they had gone to Mumbai prior to 4 years. Further, the statements made by PW-8 / Shubha have not been proved by the prosecution by producing convincing evidence. 26. In the present case, we find that the prosecution has failed to establish the chain of events in order to conclusively prove the guilt of the accused persons. Though the prosecution has let in several witnesses to prove the guilt of the accused, but has not been able to establish the guilt against the accused by facilitating cogent, consistent, corroborative and so also acceptable evidence that the accused have committed the murder of the deceased Sridhar. 27. In the case of NAVANEETHAKRISHNAN V. THE STATE BY INSPECTOR OF POLICE ( AIR 2018 SC 2027 ), the mobile phones along with other materials were discovered at the instance of the information given by the accused. Those recoveries did not have any connection with the crime committed and the fact of which the discoveries were made, could not be proved to be a relevant one. The Apex Court observed that in the absence of any connecting link between the crime and the things recovered, the recovery on the behest of accused will not have any material bearing on the facts of the case. The Court held that no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. The Court held that no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. It further held that the said statements are inadmissible in spite of the mandate contained in Sec. 27 of the Indian Evidence Act for the simple reason that it cannot be stated to have resulted in the discovery of some new fact. The material objects which the police is claimed to have recovered from the accused may well have been planted by the police. 28. In the case of BIPIN KUMAR MONDAL vs. STATE OF WEST BENGAL (AIR 2010 SC 368), it is held that, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. 29. In the case of MUNISH MUBAR vs. STATE OF HARYANA ( AIR 2013 SC 912 ), it is held that, in a case of circumstantial evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable, because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggest sufficient/necessary motive to commit a crime, it may be conceived that the accused has committed the same. 30. It is no doubt true that criminal law was set into motion on receipt of a complaint by PW-8 / Shubha. But her evidence is not corroborated with any other independent witnesses in order to prove the guilt against the accused to secure conviction for offences under Sec. 302 and Sec. 201 of the IPC. Further, the learned Sessions Judge has failed to take note of the fact that PW-21 / B.S. Manjunath during his cross examination, has deposed that they went to Mumbai to apprehend Accused Nos.1 and 2 via private vehicle whereas PW-14 / Nataraj, S/o. Narayanaswamy has deposed that they went through flight. The said inconsistency goes to the root of the matter in the present case on hand, since it is a very important piece of evidence. PW-17 / Shri Lakshmi Balasubramaniam has admitted that if there are identical twins, then the DNA profile will be the same. The said inconsistency goes to the root of the matter in the present case on hand, since it is a very important piece of evidence. PW-17 / Shri Lakshmi Balasubramaniam has admitted that if there are identical twins, then the DNA profile will be the same. Such being the case, the prosecution has failed to conclusively establish the identity of the accused persons. These facts have not at all been considered by the learned Sessions Judge. The learned Sessions Judge has failed to take note of the fact that the prosecution has failed to establish the alleged enmity between the deceased and the accused persons. As such there was no motive for the accused persons to commit the murder of the deceased. Further, the prosecution has not recovered any incriminating article at the instance of the appellants. When such being the case, the impugned judgment and order of conviction is unsustainable as against these appellants are concerned. 31. DNA analysis of the blood sample of the parents of the deceased proved that the dead body was that of the deceased Sridhar. However, if there are identical twins, then the DNA profile will be the same. Such being the case, the Trial Court has failed to establish the identity of the deceased person. Further, the mahazar witnesses cited by the prosecution, have not completely supported the case of the prosecution and there are material discrepancies even in their evidence which go to the very root of the case of the prosecution and as such the recovery of the article at the instance of the appellants would have no legs to stand. Hence the impugned judgment and order of conviction and sentence is unsustainable and the same is liable to be setaside. Therefore, in view of the aforesaid reasons and findings, we are of the opinion that the impugned judgment of conviction and order of sentence rendered by the Trial Court suffers from infirmities and so also absurdities. Consequently, the said judgment requires intervention. Accordingly, we proceed to pass the following: ORDER The appeal preferred by the appellants / accused Nos.1 to 7 under Sec. 374(2) Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence dtd. 27/3/2017 rendered by the III Addl. District & Sessions Judge, Bengaluru Rural District, Sitting at Anekal in S.C.No.53/2010 is hereby set aside. Accordingly, we proceed to pass the following: ORDER The appeal preferred by the appellants / accused Nos.1 to 7 under Sec. 374(2) Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence dtd. 27/3/2017 rendered by the III Addl. District & Sessions Judge, Bengaluru Rural District, Sitting at Anekal in S.C.No.53/2010 is hereby set aside. Consequently the appellants / Accused Nos.1 to 7 are acquitted of the offences under Ss. 302 and 201 of the IPC for which they were charged. Appellants / accused Nos.1 to 7 are on bail. Therefore, the bail bonds if any executed by them, shall stand cancelled. If Appellants / Accused Nos.1 to 7 have deposited any fine amount, the same shall be refunded to the respective appellants, on due identification.