JUDGMENT : K.S. MUDAGAL, J. 1. Challenging the judgment and order of conviction passed against him for the offences punishable under Sections 302, 392, 201 of IPC, the accused in S.C.No.72/2015 on the file of III Additional District & Sessions Judge, Hassan has preferred this appeal. 2. The appellant was sole accused. He was tried in S.C.No.72/2015 for the charges for the offences punishable under Sections 392, 302 and 201 of IPC on the basis of the charge sheet filed by Arakalgudu police in Crime No.315/2014 of their police station. For the purpose of convenience the parties are referred to henceforth according to their ranks before the trial Court. 3. Crime No.315/2014 was registered initially against unknown persons for the offence under Section 302 of IPC on the basis of the complaint filed by PW.1 as per Ex.P1. 4. It was alleged that the accused/cousin of the deceased Lokeshwari @ Vidya had committed theft of her gold chain and two finger rings. On Lokeshwari @ Vidya threatening him of the consequences, he had returned gold chain and was seeking time to return two finger rings. But he had sold them. On 17.12.2014 when he visited her house, she pestered him to return the finger rings, otherwise threatened to inform his parents about the same. When she tried to call his parents, a scuffle took place between Lokeshwari @ Vidya and accused in the kitchen, he committed her murder and to screen the evidence of murder, doused her with kerosene and set her on fire. By that time, victim’s daughter aged 1 ½ years was also in the kitchen. The accused leaving the child also in the kitchen and snatching gold mangalya chain of the victim sped away. 5. The trial Court on committal of the case and on hearing the parties framed the charges against the accused for the offences punishable under Sections 392, 302 and 201 of IPC. As the accused denied charges and claimed trial, the trial was conducted. 6. In support of the case of the prosecution, PW.1 to PW.39 were examined, Exs.P1 to P44 and MOs.1 to 19 were marked. On examination of the accused under Section 313 of Cr.P.C. with reference to incriminating evidence, he did not lead any evidence. As the accused denied charges and claimed trial, the trial was conducted. 6. In support of the case of the prosecution, PW.1 to PW.39 were examined, Exs.P1 to P44 and MOs.1 to 19 were marked. On examination of the accused under Section 313 of Cr.P.C. with reference to incriminating evidence, he did not lead any evidence. The trial Court on hearing the parties by the impugned judgment and order convicted and sentenced the accused for the offences punishable under Sections 392, 302 and 201 of IPC. The terms of imprisonment and fine is as follows: S. No. Offence Under Section Sentence Fine in Rs. Default sentence 1. 302 of IPC Life Imprisonment 5,000/- SI for 6 months 2. 201 of IPC Imprisonment of three years 1,000/- SI for 2 months 3. 392 of IPC RI of 7 years 2,000/- SI for 4 months 7. Challenging the said judgment, the accused has preferred the above appeal. Submissions of Sri H.S. Chandramouli, learned Senior Counsel for Sri Rajath, learned Counsel on record for the accused: 8....... (i) The case was based solely on the circumstantial evidence. Out of 39 witnesses examined by the prosecution, 13 witnesses were relatives of the deceased. Naturally they were interested witnesses and supported the prosecution. Initially the complaint was filed against unknown culprits. If witnesses had seen the accused with the deceased and the motive was known, earlier complaint against unknown person could not have been filed. The evidence on record clearly shows that each of circumstances was not cogent, consistent and are unacceptable. PW.1 in his cross-examination admitted that accused committing theft of gold chain and finger rings was within his knowledge, but not shown the same in the complaint. He further states that despite he telling about that to the police, no such statement was recorded by the police. He claims that PWs.3 and 4 had informed him about they suspecting the accused, but still the same was not written in the complaint. Though he says that PWs.3 and 4 had informed him about the accused committing murder, he says that he has not told the same before the police. He claims that the police on perusing his written complaint prepared another complaint and he has signed that complaint. That creates doubt about the investigation. (ii) The evidence of the witnesses i.e. PWs.1, 4 and 8 etc. about the last seen theory was also doubtful. He claims that the police on perusing his written complaint prepared another complaint and he has signed that complaint. That creates doubt about the investigation. (ii) The evidence of the witnesses i.e. PWs.1, 4 and 8 etc. about the last seen theory was also doubtful. PW.2 says that the police came to the spot even before filing the complaint, whereas Ex.P1 is purportedly tendered by PW.1 on appearing in the police station at 8.30 p.m. The evidence of PWs.2, 8, 11, 13, 24, 25 shows that the police came to the scene of offence even before first information report was registered. The evidence on record clearly shows that the police improvised the case stage by stage. The explanation in the complaint regarding delay in filing the complaint is contrary to the evidence of the official witnesses. The evidence on record regarding recovery of incriminating articles is full of inconsistency. Similarly, the evidence on record regarding last seen circumstance contains inherent inconsistencies. PW.2 the husband of the deceased did not speak about the accused. None of the witnesses to the last seen circumstance deposed that the accused was seen along with the deceased. (iii) The Investigating Officer collected the CDRs and produced the same to show location of the accused and the deceased within Darikongalale village of Arakalgudu Taluk/scene of offence. However, even according to the prosecution, those SIM Cards were not standing in the name of the accused or the deceased. Even according to the prosecution, no overt acts are attributed to the accused regarding burning of the child Shubha. The links regarding circumstantial evidence was not complete. Despite that the trial Court proceeded to convict and sentence the accused. The trial Court has failed to appreciate the evidence judiciously. The findings of the trial Court are contrary to the settled principle of law. 9. The links regarding circumstantial evidence was not complete. Despite that the trial Court proceeded to convict and sentence the accused. The trial Court has failed to appreciate the evidence judiciously. The findings of the trial Court are contrary to the settled principle of law. 9. In support of his submissions, he relies on the following judgments: (i) Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393 (ii) Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 (iii) Meharaj Singh v. State of U.P., (1994) 5 SCC 188 (iv) State of A.P. v. Punati Ramulu, 1994 Supp (1) SCC 590 (v) Nizam v. State of Rajasthan, (2016) 1 SCC 550 (vi) Navaneetha Krishnan v. State by Inspector of Police, (2018) 16 SCC 161 (vii) Tulesh Kumar Sahu v. State of Chattisgarh, MANU/SC/0476/2022 (viii) Jabir v. State of Uttarakhand, 2023 SCC OnLine SC 32 (ix) R. Sreenivasa v. State of Karnataka, 2023 SCC Online SC 1132 (x) Manjunath & Ors. v. State of Karnataka, 2023 SCC Online SC 1132 (xi) Boby v. State of Kerala, 2023 SCC Online SC 50 (xii) Krishan v. State of Haryana, 2024 INSC 60 Submissions of Smt. Soumya, learned HCGP: 10....... (i) The relatives and acquaintance of the deceased are natural witnesses to the motive and last seen theory. There is no bar for the relatives to be witnesses to the incident or giving testimony with regard to the incident. The relationship between the accused and the deceased is not in dispute. The evidence of PWs.4, 8 and 14 clearly show that the accused had come to the house of the victim at 11.00 a.m. The evidence of PW.23 Principal of the College where accused was studying shows that on the date of the incident, accused absented to the classes and he was not found in the hostel also. Accused did not explain on that day whether he has done such acts. The CDRs collected by the Investigating Officer show that the accused was at the scene of offence and in the vicinity of the offence. There were conversations between the accused and the deceased Lokeshwari @ Vidya though SIM cards were not standing in the names of the accused or the deceased. Those phones being used by the accused and the deceased was not impeached. During the course of committing the crime, accused had suffered injury to his left hand finger. There were conversations between the accused and the deceased Lokeshwari @ Vidya though SIM cards were not standing in the names of the accused or the deceased. Those phones being used by the accused and the deceased was not impeached. During the course of committing the crime, accused had suffered injury to his left hand finger. He failed to accept the same in the trial or in his examination under Section 313 of Cr.P.C. (ii) The medical evidence shows that deaths of Lokeshwari @ Vidya and Shubha was homicidal one. The circumstance of motive was proved by the evidence of PWs.3, 4, 7, 9, 11 and 12. Nothing was elicited in the evidence of the relatives and neighbours of the deceased to show that they had reasons to falsely implicate the accused. The evidence on record regarding recovery of incriminating materials at the instance of the accused was cogent and consistent. The bloodstains found on the articles match with the bloodstains of the deceased. Accused has no explanation for the same. The evidence on record clearly shows that the circumstances set up against the accused were proved beyond reasonable doubt. Inconsistencies alleged about presence of the police and registration of first information report did not go to the root of the matter as PW.38 the Investigating Officer has clarified the same. He says that at 5.30 p.m. on receiving the information about death of mother and child he visited the spot along with his staff and directed PW.33 to register first information report on receiving the complaint from the relatives. On registering the first information report he has commenced the investigation. Therefore, the accused cannot make mountain out of the molehill. The evidence was cogent and consistent. The trial Court on judicious appreciation of the evidence, convicted and sentenced the accused. The judgments relied on by learned Senior Counsel do not advance the case of the appellant. There are no grounds to interfere with the impugned judgment. 11. On considering the submissions of both side and examination of the materials on record, the point that arises for determination of the Court is “Whether the impugned judgment and order of conviction and sentence is sustainable under law?” Analysis 12. Mother of the accused and the deceased Lokeshwari @ Vidya are full sisters. Lokeshwari @ Vidya was given in marriage to PW.2 the resident of Darikongalale village of Arakalgudu Taluk. Mother of the accused and the deceased Lokeshwari @ Vidya are full sisters. Lokeshwari @ Vidya was given in marriage to PW.2 the resident of Darikongalale village of Arakalgudu Taluk. PW.1 is elder brother of Lokeshwari @ Vidya. PWs.3 and 4 are the father and mother of PW.2. PW.2 and Lokeshwari @ Vidya had two daughters named Jhanavi aged 7½ years and Shubha aged 1½ years. PW.2 was living with his wife and children separately from PWs.3 and 4 in different portion of the same house. 13. According to the prosecution, the accused was pursuing Diploma in Rajeev Polytechnic College, Hassan. Being influenced by his company he was seeing movies in theaters, going to hotels and other places by spending money beyond his limit. He used to visit the house of Lokeshwari @ Vidya. During such visits, once he committed theft of gold chain and finger rings of Lokeshwari @ Vidya. Lokeshwari @ Vidya on finding that he has committed theft, was insisting him to return her stolen jewellery. Accused had sold finger rings and spent the money and he returned only gold chain and sought time to return the finger rings. Lokeshwari @ Vidya threatened him that if he does not return finger rings, she would inform his parents. Fearing that she might inform his parents and they may ostracize him, the accused planned to commit murder of Lokeshwari @ Vidya. 14. In execution of such plan on 17.12.2014 between1.00 p.m. and 1.30 p.m., when PWs.2 to 4 were not in the house, accused visited the house of Lokeshwari @ Vidya. When she was in kitchen, she insisted for return of the finger rings and tried to inform his parents about the same over phone, accused tried to snatch her mobile phone. In that scuffle, accused was injured by sickle/MO.14 which was in the hands of Lokeshwari @ Vidya. Accused snatched MO.14 from her and assaulted her. When she fell down, he snatched her gold mangalya chain/MO.13 and crushed her head with MO.2/grinding stone and caused her death. To screen the scene of evidence and to project the same as fire accident, accused brought kerosene can from the bathroom and poured kerosene on the dead body and set her on fire. At that time, the child Shubha was also in the kitchen and started to cry. To screen the scene of evidence and to project the same as fire accident, accused brought kerosene can from the bathroom and poured kerosene on the dead body and set her on fire. At that time, the child Shubha was also in the kitchen and started to cry. Accused left the child also in the kitchen and closed the door from outside and escaped. Child also suffered burn injuries and died. 15. On the basis of the complaint/Ex.P1, PW.33 the then Assistant Sub Inspector of Arakalguu police station registered first information report as per Ex.P27 and handed over the investigation to PW.38. PW.38 conducted investigation, arrested the accused and completed the investigation by filing the charge sheet for the aforesaid offences. 16. There were no eyewitnesses to the incident. The case was based solely on the circumstantial evidence. The circumstances relied on by the prosecution were as follows: (i) That the deaths of Lokeshwari @ Vidya and her daughter Shubha were homicidal one; (ii) Motive – That accused had committed theft of jewellary of the deceased Lokeshwari @ Vidya and when she insisted for return of the same, he committed the offences; (iii) The accused and deceased Lokeshwari @ Vidya were last seen together and the accused was found in the said vicinity before and after the incident; (iv) Recovery of incriminating articles under the mahazars under Exs.P22 to P25; (v) Absence of the accused from his hostel/college on the date of the incident; (vi) The accused had sustained injuries on his left hand at the time of the incident; (vii) FSL Evidence. 17. The Hon’ble Supreme Court in paras 153 and 154 of the judgment in Sharad Birdhichand Sarda’s case referred to supra referring to its earlier judgment in Shivaji v. State of Maharashtra, (1973) 2 SCC 793 summarized the law relating to the appreciation of the evidence in a case based on circumstantial evidence as follows: “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. 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 : 1973 SCC (Cri) 1033: 1973 Cri. L.J. 1783 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “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 . (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.” (Emphasis supplied) 18. This Court has to examine whether the circumstantial evidence adduced by the prosecution satisfy the aforesaid principles to justify the conviction placed by the trial Court by the impugned judgment. Reg. Nature of death: 19. To prove that the deaths of Lokeshwari @ Vidya and Shubha were homicidal one, the prosecution relied on the evidence of PW.21 the doctor who conducted postmortem examination on their dead bodies and issued Exs.P15 and P16 the postmortem reports. PW.21/Medical Officer of General Hospital, Arkalgudu deposed that on the requisition of the Investigating Officer, he conducted postmortem examination on the dead body of Lokeshwari @ Vidya and Shubha and issued postmortem examination reports of Lokeshwari @ Vidya and Shubha as per Exs.P15 and P16 respectively. As per his evidence and as noted in Ex.P15 Lokeshwari @ Vidya had suffered six lacerated/incised wound/abrasion and skull bone was fractured. There were burn injuries mentioned at Sl.Nos.7 and 8 of the postmortem report. As per his evidence and as noted in Ex.P15 Lokeshwari @ Vidya had suffered six lacerated/incised wound/abrasion and skull bone was fractured. There were burn injuries mentioned at Sl.Nos.7 and 8 of the postmortem report. He opined that the death of Lokeshwari @ Vidya was due to respiratory arrest as a result of head injury. 20. So far as Shubha, PW.21 deposed that the child had suffered burn injuries and death was due to cardio respiratory arrest as a result of burns. PW.21 further deposed that on the requisition of the Investigating Officer, he examined MO.2/the grinding stone and MO.14/the sickle and opined that injury Nos.1 to 3, 5 and 6 mentioned in postmortem report/Ex.P15 could be caused by sickle and injury No.4 could be caused by MO.2/the grinding stone and he has given report in that regard as per Ex.P17. 21. In the cross-examination of PW.21, absolutely there is no suggestion that the deaths were not homicidal one. It is only suggested that he cannot give the correct time of the death. But he has stated that the death is within 36 hours of postmortem examination. As per his evidence and Exs.P15 and P16, the postmortem on dead body of Lokeshwari @ Vidya was conducted on 18.12.2014 between 2.00 p.m. and 4.00 p.m. and on dead body of Shubha was conducted on the same day between 11.45 a.m. and 1.45 p.m. The offence is said to have taken place on 17.12.2014 between 1.00 p.m. and 1.30 p.m. which comes within the range of 36 hours. PW.21 denied the suggestion that assault by MO.14 could not have caused injury Nos.1 to 3, 5 and 6 shown in Ex.P15. Though he admitted the suggestion that injury No.4 could be caused if a person falls on MO.2 backward, that’s only hypothetical suggestion. At the cost of repetition, it has to be stated that there was no direct suggestion that the deaths were not homicidal one or they were natural or suicidal. Further the said evidence of PW.21 was corroborated by the inquest mahazars and the evidence of other witnesses i.e. husband, in laws, other relatives and neighbours of deceased. In their evidence also there was no suggestion that the deaths were homicidal one. Therefore, the trial Court was justified in holding that the deaths were homicidal one. Reg. Motive: 22. Further the said evidence of PW.21 was corroborated by the inquest mahazars and the evidence of other witnesses i.e. husband, in laws, other relatives and neighbours of deceased. In their evidence also there was no suggestion that the deaths were homicidal one. Therefore, the trial Court was justified in holding that the deaths were homicidal one. Reg. Motive: 22. According to the prosecution, the accused had stolen the gold chain and gold finger rings of the deceased Lokeshwari @ Vidya. When she questioned that and threatened him that she will inform the same to his parents, he returned the gold chain and sought time to return the finger rings. As he had sold the finger rings, he did not return the same. Deceased kept on insisting and threatening him. Therefore, he planned to commit her murder. Accordingly, on 17.12.2014 at 11.00 a.m. he came to her house when her husband and in laws were away and committed murder of Lokeshwari @ Vidya and her daughter Shubha as aforesaid. 23. To prove the circumstance of motive, the prosecution relied on the evidence of PWs.1 to 4, 6 to 9, 11, 12 and 15. PW.1/complainant in his chief examination states that on 17.12.2014 at 4.30 p.m. one Ashoka informed him over phone regarding the incident. He reached the spot by 6.30 p.m. By that time, his parents and husband of the deceased and others were present at the spot. He enquired PW.2/the husband of the deceased, then filed the complaint. On 19.12.2014 on enquiry, he came to know about the theft of the gold chain and rings of the deceased and the motive of the accused to commit murder. In the cross-examination, he states that he was aware of theft of the chain and finger rings, but he has not mentioned the same in the complaint. Again he says that deceased Lokeshwari @ Vidya had informed him about the theft of jewellery about three months prior to the incident. He further states that she had also informed him about accused returning gold chain to her within twenty days and not to divulge the same to his parents as the accused had assured to return the finger rings and his parents will admonish for the same. He says that he had disclosed the same to the police, but no further statement of PW.1 was recorded to that effect. He says that he had disclosed the same to the police, but no further statement of PW.1 was recorded to that effect. It is also material to note that PW.1 in his cross-examination states that the in-laws/PWs.3 and 4 had informed him about the theft and the commission of the offence by the accused.But he did not mention the same in the complaint. 24. As already noted, the complaint/Ex.P1 was filed against unknown culprits and it was requested to trace those culprits and bring them to justice. To overcome that he says that the police perused the complaint got written by him and then they wrote another complaint. But he admits that he has subscribed his signature on the complaint. He does not explain what compelled him to sign the complaint written by the police instead of the one tendered by him. He does not impute any motive to the police in writing and getting the signature on Ex.P1. He is none else the full brother of the deceased Lokeshwari @ Vidya. If he was aware of involvement of the accused or atleast suspected the accused, he would not have spared the accused and filed the complaint against unknown culprits. Therefore, his evidence regarding the motive does not inspire the confidence of the Court. 25. PW.2/the husband of the deceased deposed that about two months prior to the incident, the gold chain and finger rings from the almariah were missing. As the accused was the only person visiting the house and on enquiry, he admitted that he had taken the ornaments. Then he returned the gold chain, requesting not to disclose to his parents. On the insistence of the deceased Lokeshwari @ Vidya to return the gold rings, the accused had assured to return the same and in that background he has committed the murder. 26. PW.38 the Investigating Officer himself states that on 17.12.2014 at about 5.30 p.m. he received information about commission of the offence and he immediately visited and inspected the spot and then asked PW.33 who was at the spot to receive the complaint from the relatives and register the case and on 18.12.2014 he received the file from PW.33 for investigation. Therefore, it becomes clear that by 5.30 p.m. the police were present at the scene of offence. Therefore, it becomes clear that by 5.30 p.m. the police were present at the scene of offence. In his cross- examination, PW.38 states that when he visited the spot, the parents of the deceased had not come and the people assembled there said that they will not file the complaint till the parents arrive, therefore he asked PW.33 to receive the complaint. Whereas PW.12 the mother of the deceased says that they learnt about the incident by 4.30 p.m. and her husband and villagers proceeded to the spot, subsequently she went to the spot. PW.4 the mother-in-law of the deceased deposed that herself and her husband PW.3 learnt about the incident at 4.30 p.m. Immediately they rushed to the spot. Therefore any one of them could have disclosed to PW.38 about the motive or the involvement of the accused and tendered the complaint at the spot itself. None of the witnesses say that they refused to file the complaint. That creates doubt about the version of PW.38 that the people assembled there refused to file the complaint until the arrival of the parents of the deceased. 27. Similarly, PW.3 the father-in-law in his chief examination states that about 15 days prior to the incident through his elder daughter-in-law he learnt about the accused stealing ornaments of his daughter-in-law and returning the gold chain and not returning the finger rings. He further stated that when he enquired with deceased Lokeshwari @ Vidya, she did not respond to save the accused due to her attachment to him. He even says that she had suppressed the said facts from him to avoid filing the complaint to save the future of the accused. He goes to the extent of saying that about two years prior to the incident, the accused was involved in theft case. Therefore, he had warned the accused not to visit their house. But no other witnesses whisper anything about such antecedents of the accused. In the cross-examination, he states that he did not try to file the complaint against the accused as the accused was cordial with him. He admits that the accused was visiting their house since 7-8 years. 28. Further PW.4 the mother-in-law of the deceased is cited as witness for last seen together as well as motive. In the cross-examination, he states that he did not try to file the complaint against the accused as the accused was cordial with him. He admits that the accused was visiting their house since 7-8 years. 28. Further PW.4 the mother-in-law of the deceased is cited as witness for last seen together as well as motive. In her chief examination, she says that on the day of the incident itself, she learnt about the accused stealing ornaments from the house of the deceased. When she overheard the deceased Lokeshwari @ Vidya demanding for return of the stolen rings, she learnt Lokeshwari @ Vidya had suppressed the said fact from her. Whereas PW.2 husband says that he had learnt about the incident about two months prior to the incident. PW.3 says that he learnt about the incident 15 days prior to the incident. PW.1 says that he learnt three months prior to the incident about theft of the ornaments. None of them say that PWs.1 to 4 were not on cordial terms and never used to discuss such things. Theft of ornaments in rural area that too by relative is a serious matter. Such being the case, there is no chance of at least between PWs.2 to 4 not revealing such incident to each other. 29. PW.5/the neighbour of the deceased in the chief examination says that earlier to the incident, he had learnt about commission of theft of ornaments by the accused and return of chain etc. That is all hearsay and does not say who had informed him about the same. 30. Similarly, PW.6 another neighbour says that after the incident, he came to know about the accused committing the murder in connection with theft of the ornaments. That is also hearsay. In the cross-examination, he says that about three months prior to the incident, PW.3 had informed him about the theft of the ornaments. Whereas PW.3 himself says that he had learnt about the theft 15 days prior to the incident that too through his elder daughter-in-law. 31. PW.7 another neighbour of the deceased says that PW.4 i.e. mother-in-law informed him about the theft of the ornaments three months prior to the incident. But PW.4 does not whisper anything about she informing PW.7 about the theft. 32. 31. PW.7 another neighbour of the deceased says that PW.4 i.e. mother-in-law informed him about the theft of the ornaments three months prior to the incident. But PW.4 does not whisper anything about she informing PW.7 about the theft. 32. PW.8 another neighbour says that on learning about the incident, he visited the spot at 7.00 p.m., police did not allow anybody inside the house. But the police said that the accused had committed the murders in the issue of gold ornaments. Whereas the police say that PW.1 filed the complaint against unknown persons and nothing was divulged at the spot. 33. PW.9 in the chief examination states that on somebody informing about the incident, he visited the spot at 4.30 p.m. and by that time, PWs.2 to 4 and the villagers were present there and he informed PW.1 about the incident and PW.1 arrived at the spot at 6.00 p.m. He further stated that he learnt about the accused committing murder of Lokeshwari @ Vidya on the issue of theft of ornaments. In his cross- examination, he says that Lokeshwari @ Vidya had informed him about three months prior to the incident about the accused committing theft. If that is the case, in the ordinary course, he would have informed atleast PWs.1 to 4 when they were at the scene of offence and divulged the same to the police and in that event, the complaint would not have been filed against unknown culprits. 34. PW.11 the cousin of the deceased Lokeshwari @Vidya though cited as witness for motive circumstance, in the chief examination only states that she learnt about the accused committing theft about three months prior to the incident and has committed murder in that background. She does not say through whom she learnt about that. Therefore, her evidence is only hearsay. 35. PW.12 the mother of deceased Lokeshwari @ Vidya in her chief examination says that about one month prior to the incident, Lokeshwari @ Vidya told her about accused committing theft, for which she had advised her to file police complaint. But Lokeshwari @ Vidya put off the same saying that the accused is like her brother and he may return the jewellery and she had also informed about the accused returning the gold chain. In the cross-examination, she admits that she has not stated about the same in her statement before the police. But Lokeshwari @ Vidya put off the same saying that the accused is like her brother and he may return the jewellery and she had also informed about the accused returning the gold chain. In the cross-examination, she admits that she has not stated about the same in her statement before the police. Further PWs.1 to 4 do not say anything about this witness revealing about victim informing her about the theft. 36. PW.15 the neighbour of the deceased says that he learnt that the murder has taken place on the issue of jewellery. He does not say how he gained such knowledge, therefore his evidence regarding motive is only hearsay. 37. Sri H.S.Chandramouli, learned Senior Counsel contended that all the aforesaid witnesses are relatives or neighbours of the deceased. Therefore, they are interested witnesses. As already noted, the accused and the deceased are closely related and therefore the witnesses at least from the parental family of the deceased are relatives both through the accused and the deceased. Therefore, they cannot be labeled as interested witnesses unless it is shown that the conviction of the accused in any way confer any benefit on them. The Hon’ble Supreme Court vide paras 13 and 14 of the judgment in Sadayappan Alias Ganesan v. State represented by Inspector of Police , (2019) 9 SCC 257 case referred to supra in this regard held as follows: “13. Criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. The witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. [See: Sudhakar v. State, (2018) 5 SCC 435 ]. 14. In the case at hand, witnesses may be related but they cannot be labelled as interested witnesses . A scrutiny of their testimonies which has stood the rigour of cross examination corroborates the prosecution story.” (Emphasis supplied) 38. In this case in the cross-examination of the aforesaid witnesses, nothing was elicited to show that the conviction of the accused enures benefit to the aforesaid witnesses. Irrespective of such legal position, the prosecution has the burden to prove the circumstance of motive beyond reasonable doubt and by cogent and consistent evidence. In this case in the cross-examination of the aforesaid witnesses, nothing was elicited to show that the conviction of the accused enures benefit to the aforesaid witnesses. Irrespective of such legal position, the prosecution has the burden to prove the circumstance of motive beyond reasonable doubt and by cogent and consistent evidence. As already noted, the evidence of the aforesaid witnesses regarding theft of ornaments by the accused prior to the incident was not cogent and consistent and some of them were hearsay witnesses. To crown all that, though they were allegedly aware of the motive aspect and suspected the accused to be the culprit, the complaint was filed against unknown culprits. The trial Court instead of appreciating the evidence in an integrated manner has gone on referring to the evidence of each of the witnesses saying that their evidence was not impeached in the cross-examination. Such approach is unsustainable. Reg. Last seen together and accused seen in the vicinity before and after the incident: 39. The other circumstance relied on by the prosecution to connect the accused to the crime is that accused and the deceased were last seen together by PW.4 and the accused was seen in the vicinity before and after the incident. To prove the said circumstances, the prosecution relied on the evidence of PWs.4, 8 and 14. 40. PW.4 the mother-in-law of the deceased in her chief examination states that on 17.12.2014 by 9.00 a.m. her husband (PW.3) had left to Arkalgudu. PW.2 the husband of the deceased says that he had left the house on the said day at 10.00 a.m. to go to Arkalgudu. It is the case of the prosecution that the first daughter of the deceased was aged 7 ½ years and left the house at 7.00 a.m. to go to school. PW.4 in her chief examination states that at 11.00 a.m. the accused came to the house of the victim and she found the victim washing the clothes and the accused talking to somebody on a mobile phone in the courtyard of the house. She further states that she heard her daughter-in-law demanding the accused to return the gold rings stolen by him about three months back and thereafter she left to Arkalgudu to get Aadhar Card. 41. She further states that she heard her daughter-in-law demanding the accused to return the gold rings stolen by him about three months back and thereafter she left to Arkalgudu to get Aadhar Card. 41. The evidence on record shows that PWs.1 to 4 had returned to the scene of offence between 4.30 p.m. and 6.00 p.m. Ex.P1 the complaint states that by that time, the parents of the deceased also had come to the spot. The evidence on record shows that before the complaint was filed, the police had come to the spot. If PW.4 had seen the accused and the deceased together at 11.00 a.m. and heard the conversation of the accused and the deceased regarding theft of the jewellary, in the natural course of events any person of ordinary prudence would have divulged the same to the police or to the complainant. But admittedly, the complaint was filed suspecting that some unknown culprits have committed the crime for gain and robbed the mangalya chain of the deceased Lokeshwari @ Vidya. Moreover, PW.1 the complainant and PW.2 the husband of the deceased do not whisper anything about PW.4 informing them regarding last seen circumstance. PW.3 though in the chief examination stated that his wife divulged about the same, in the cross-examination admits that he has not stated the same in his statement before the police. 42. So far as PW.8 he states that he sighted the accused on 17.12.2014 between 10.30 a.m. and 11.00 a.m. in Arkalgudu bus stand and accused told him that he is going to the house of PW.3 in Darikondagalale and at 5.00 p.m. he came to know about the death of Lokeshwari @ Vidya. But in the cross-examination, he states that he had previously not seen the accused, but he was told that the accused used to visit the house of PW.3. He further states that he does not know why and how the murder took place. Again, in the cross- examination he says that he had seen the accused for the first time in Besaguru in the shop of the senior uncle of the accused. In his cross examination, he admits that himself and PW.3 have mutual trust. He admits that he has not revealed to anybody about he sighting the accused on that day. Again, in the cross- examination he says that he had seen the accused for the first time in Besaguru in the shop of the senior uncle of the accused. In his cross examination, he admits that himself and PW.3 have mutual trust. He admits that he has not revealed to anybody about he sighting the accused on that day. Though he claims that he was at the scene of offence by 7.00 p.m., he has not divulged the same to the police. In the chief examination he says that the police disclosed that the accused has committed the murder in the matter of gold ornaments. But in the cross examination he says that he does not know why and how the murder took place. Therefore, his evidence is self contradictory and does not pass the test of credibility. 43. PW.14 in his chief examination states that he used to get labourers for cutting the crop in the paddy land of PW.3 and at that time, accused used to get the lunch for them from the house of PW.3. Thus, he knows the accused for about five years. He further deposed that about two and half years prior to his deposition (17.01.2017) at 9.15 a.m. he sighted the accused in Hassan bus stand and enquired him and the accused told him that he is going to his elder sister’s house. He further deposed that he came to know that next morning murder has taken place in the house of PW.3, he visited the spot next day at 8.00 a.m. and heard accused committing murder of Lokeshwari @ Vidya in the matter of theft of chain. PW.14 is resident of Neduni and not Hassan. He says that he was in the bus stand to go to Kirugadale to fetch paddy seeds. According to him murder has taken place next morning, whereas PW.8 claims to have sighted the accused in Arakalgudu bus stand on 17.12.2014 between 10.30 a.m. and 11.00 a.m. PW.4 claims that on 17.12.2014 by 11.00 a.m. she found the accused in the house of Lokeshwari @ Vidya. Therefore, there is no consistency in the evidence of PWs.4, 8 and 14 regarding the accused reaching the house of the deceased. According to PWs.8 and 14, they were residents of Honnagowdanahalli and Neduni. Therefore, there is no consistency in the evidence of PWs.4, 8 and 14 regarding the accused reaching the house of the deceased. According to PWs.8 and 14, they were residents of Honnagowdanahalli and Neduni. There was no cogent evidence to probabilize the presence of PWs.8 and 14 at Arkalgudu and Hassan bus stands at the time spoken by them. 44. To prove the presence of the accused at the scene of offence, the prosecution relied on Ex.P36 the call detail records, Ex.P39 the CD, Exs.P43 and P44 the certificates under Section 65B of the Indian Evidence Act, 1872 (for short ‘the Evidence Act’) issued by the Nodal Officer of Idea Cellular Limited along with CDRs relating to Idea Mobile Phone No.9743001176 and Reliance Phone No.8453963375 which were allegedly used by the accused and the deceased and the evidence of PW.38. Relying on those documents, it was contended that the accused was using mobile No.8453963375 and deceased Lokeshwari @ Vidya was using Sim Card No.9743001176 and the call details in those documents show that on 17.12.2014 at 9.21 a.m., the accused spoke to Lokeshwari @ Vidya from Hassan for 44 seconds. It is further contended that as per those call detail records at 11.36 a.m. and 11.40 a.m. his phone operated from the scene of offence, but as per the prosecution itself, Dharmappa, the father of the accused was the holder of sim Card No.8453963375 and one Nagamma was the holder of sim card No.9743001176. The father of the accused and the said Nagamma were not examined to state that those sim cards were being used by the accused and Lokeshwari @ Vidya. Needless to say that the accused had denied the usage of said phone/sim card by him or the deceased. Therefore, the said evidence could not have been relied on to accept the last seen circumstance. Thus, the trial Court was not justified in accepting the evidence of the aforesaid witnesses regarding last seen theory. 45. Moreover, the accused cannot be convicted only based on the circumstance of last seen theory as held by the judgments relied on by learned Counsel for the appellant unless the other circumstance relied by the prosecution are proved and complete the chain of circumstances only to lead to the hypothesis of the crime by the accused. Reg. Recovery: 46. 45. Moreover, the accused cannot be convicted only based on the circumstance of last seen theory as held by the judgments relied on by learned Counsel for the appellant unless the other circumstance relied by the prosecution are proved and complete the chain of circumstances only to lead to the hypothesis of the crime by the accused. Reg. Recovery: 46. The other circumstance relied on by the prosecution is that on PW.38 arresting the accused on 19.12.2014 the accused gave voluntary statement as per Ex.P34 confessing to the crime and disclosing that after the offence he has packed his bloodstained shirt and sickle in a plastic cover and concealed the same near a bush. He further confessed that he has kept his bloodstained pant, his mobile phone and the mangalya chain of the victim in his suitcase in his hostel room and disposed the kerchief used by him to wipe the blood after the incident in a dustbin in his room and he produces the same. Then he led PW.38 and panchas/PWs.24 and 26 to the roadside bushes near Kurumanakatte and produced the sickle, shirt and plastic cover MOs.14, 15 and 17. PW.38 seized the same under mahazar Ex.P22 in the presence of panchas between 2.00 p.m. and 2.30 p.m. On the same day, he led the police and the panchas to his room in the hostel bearing No.313 and produced MOs.13, 16, 18 and 19 mangalya chain, bloodstained pant of the accused, cell phone of the accused with two sim cards from the suit case and bloodstained kerchief from the dustbin in the room. PW.38 seized the same under the mahazar Ex.P24 between 5.15 p.m. and 6.15 p.m. in the presence of PWs.24, 26 and got the mangalya chain appraised through PW.31. 47. PWs.24 and 26 are the relatives of the deceased.PW.24 is from Arakalgudu and PW.26 is from Mulluru village, Shanivarasanthe Hobli, Somawarpet Taluk, Kodagu District. PW.24 in his cross-examination admits that when they went for mahazar to Kurubanakatte, around 25 people had gathered there. Though the police took the photograph of seizure mahazar, the same is not recorded in the mahazar. He also admits that while giving the statement, he has not stated about taking of the photograph Ex.P23. He does not know whether the police signed the mahazar or not. He says that PW.3 also had accompanied them. 48. Though the police took the photograph of seizure mahazar, the same is not recorded in the mahazar. He also admits that while giving the statement, he has not stated about taking of the photograph Ex.P23. He does not know whether the police signed the mahazar or not. He says that PW.3 also had accompanied them. 48. So far as Ex.P24, PW.24 in the chief examination says that the accused took him and the police to room No.313 in the hostel and produced his bloodstained pant and chain which were kept in the suit case, then he produced his Samsung mobile phone containing two sim cards and the police seized the same under the mahazar Ex.P24. He further says that the police secured a goldsmith near the college and got the chain weighed and regarding those proceedings the photographs were taken. In the cross-examination, he states that in the hostel there were other boys and warden, but they were not taken inside the room. According to him, the door was open. That goes to show that the room was accessible to others. 49. PW.26 who hails from Mulluru village says that on19.12.2014 he had gone to the shop of PW.24 at Arakalgudu and by that time, PW.24 was leaving to the police station, they were informed that the accused was arrested in the murder case. He says that in their presence the accused gave the statement. So far as recovery under Exs.P22 and P24 he spoke in tune with PW.24. In the cross-examination, he admits that his village is at a distance of 30 kilometers from Arakalgudu. He admits that Somarwarpete and Shanivarasanthe are close to his village and sandy takes place in Somarwarpete and Shanivarasanthe both. The said suggestions were made to demonstrate that PW.26 going to the shop of PW.24 at Arakalgudu for purchasing was unnatural and improbable. He also admits that PW.3 had also accompanied them to the police station and to the places of mahazar. He also admits that at Kurubanakatte, 20-25 people had gathered at the time of mahazar. Except him and PW.24 others have not signed the mahazar. He does not know whether the police asked the others to sign the mahazar. 50. So far as Ex.P24, PW.26 states that when they went to the hostel, hostel people were there. But he does not know their names. Except him and PW.24 others have not signed the mahazar. He does not know whether the police asked the others to sign the mahazar. 50. So far as Ex.P24, PW.26 states that when they went to the hostel, hostel people were there. But he does not know their names. He states that the police did not call the boys to the room. According to him, in the room there were three cots. But other boys were not there. Room door was open. He also states that in the mahazar, there was no mention of taking the photographs in the mahazar proceedings and he has not given statement to that effect. According to him, by the time they reached the building, the appraiser/PW.31 was standing there. The evidence of this witness also shows that the alleged places of recovery were accessible to others. Their evidence indicates that though there were two more inmates of the room, the Investigating Officer has not enquired them. 51. The evidence of PW.31 regarding the proceedings under Ex.P24 is in tune with PWs.24 and 26. In the cross- examination, he states that along with CPI, the accused and three private persons were there and he does not know their identity. He does not know who else signed the mahazar. When PWs.24 and 26 said that the mangalya chain had blood stains, he disputes the same. He admits that there were other rooms adjacent to room No.313, but police did not call any other for the mahazar proceedings. All these witnesses including the Investigating Officer/PW.38 admit that though the accused produced MOs.13, 16 and 18 which were taken out from the suitcase and seized, the said suitcase was not seized. For not taking any independent witness as mahazar witnesses, PW.38 the Investigating Officer states that at Kurubanakatte the localites declined to become the mahazar witnesses. But he admits that he has not issued notices to the mahazar witnesses. He admits that PW.31 is the witness in the other cases of the police station. He admits that he has not recorded the statement of Principal of Rajeev college or the warden of the same. It is not his case that they also declined to act as panchas or to give statement. Not recording the statement of those witnesses and not taking them as mahazar witnesses creates doubt about the proceedings under Ex.P24. 52. He admits that he has not recorded the statement of Principal of Rajeev college or the warden of the same. It is not his case that they also declined to act as panchas or to give statement. Not recording the statement of those witnesses and not taking them as mahazar witnesses creates doubt about the proceedings under Ex.P24. 52. In Manjunath’s case relied on by learned Senior Counsel, the Hon’ble Supreme Court has held that the recoveries effected from the place accessible to public and from a house where other person is also residing, compromises the sanctity of such recovery and takes away from the veracity thereof. 53. In this case also, recovery under Ex.P22 was from the roadside bush which was accessible to others. It is admitted that room No.313 had two more roommates with accused. Coupled with that, no other independent witnesses at both the places were examined and regarding that no acceptable reasons are assigned by the Investigating Officer. Under such circumstances and having regard to the aforesaid judgment of the Hon’ble Supreme Court, acceptance by the trial Court of such evidence in proof of circumstance of recovery is unsustainable. Reg. Absence of the accused on the date of the incident: 54. To probabilize the presence of the accused on 17.12.2014 at the scene of offence, the prosecution contended that he was absent from his college and hostel on that day. To prove that, the prosecution relied on the evidence of PW.23/the Principal of Rajeev Polytechnic, Hassan and Exs.P19 to P21 namely the study certificate, the room allotment certificate and report regarding the attendance of the accused. 55. Ex.P21 is to the effect that the accused was studying in Rajeev Polytechnic, Hassan in first year diploma for the academic year 2014-2015. The said fact is not in dispute. Ex.P20 the report of the Warden of the hostel and Principal of the college states that the accused was living in Room No.313 in the hostel along with two more students called Pavan D.K. and Dilip Kumar H.K. That fact is also not disputed. Ex.P21 is the letter issued by PW.23 to the effect that the accused did not attend the class on 17.12.2014. In the cross-examination, PW.23 admits that he was not teaching in first year diploma class. He admits that the rooms are allotted to the students based on confirmation of their attendance in the class room. Ex.P21 is the letter issued by PW.23 to the effect that the accused did not attend the class on 17.12.2014. In the cross-examination, PW.23 admits that he was not teaching in first year diploma class. He admits that the rooms are allotted to the students based on confirmation of their attendance in the class room. In the cross-examination, he states that along with Ex.P21, he also furnished the attendance register to the police. But such attendance register or the extract of the same is not produced. In the absence of the attendance register extract the primary document and having regard to the admission of PW.23 that he was not teaching in first year diploma class, Ex.P21 secondary evidence is unacceptable. Reg. Injury on the hand of the accused: 56. According to the prosecution during the scuffle between the accused and Lokeshwari @ Vidya, left hand of the accused was hit by the sickle and he suffered injury on the said hand. It is further case of the prosecution that the Investigating Officer referred the sickle/MO.14 to PW.27 to find out whether such injury could be caused by MO.14 and also sought blood group of the accused. 57. To prove the said fact, the prosecution relied on the evidence of PW.27 the Medical Officer of Arakalgudu and Ex.P26 the alleged opinion of PW.27. PW.27 deposed that she being the Medical Officer of Arakalgudu Government Hospital on 19.12.2014 at 8.00 p.m. on the requisition of the police examined the accused and found the laceration and abrasion injury with swelling over left hand. She said that she examined the blood group of the accused and that was ‘O’ Positive. She says that on 10.03.2015 the police produced sickle MO.14 for her opinion and she gave the report Ex.P26 saying that MO.14 could cause such injury. 58. Infact Ex.P26 is not the wound certificate issued by PW.27 on 19.12.2014 or any date close to that. First part of Ex.P26 is the requisition of the Investigating Officer addressed to PW.27 to give her opinion with reference to MO.14. On that PW.27 has purportedly made an endorsement on 10.03.2015 that the injury found on the left wrist of the accused could be caused by MO.14. In Ex.P26 absolutely, there is nothing to show that PW.27 got tested the blood of accused to ascertain his blood group and his blood to be of ‘O’ group. On that PW.27 has purportedly made an endorsement on 10.03.2015 that the injury found on the left wrist of the accused could be caused by MO.14. In Ex.P26 absolutely, there is nothing to show that PW.27 got tested the blood of accused to ascertain his blood group and his blood to be of ‘O’ group. When the wound certificate itself was not produced and got marked and there was no mention in Ex.P26 about ‘O’ blood group, it cannot be said that the blood group of the accused was ‘O’. The trial Court holds that the accused in his examination under Section 313 of Cr.P.C. has failed to explain the injury. However, the perusal of question No.42 and answer to the said question in the statement of the accused under Section 313 of Cr.P.C. shows he denied the fact of he suffering injury. Similarly, he has denied the evidence of PW.38 to that effect (Question No.55 and answer in statement of the accused under Section 313 of Cr.P.C.). Under the circumstances, the trial Court was in error in holding that the accused has admitted the injuries and he has failed to explain the same and thereby failed to discharge his burden under Section 106 of the Evidence Act. Reg. FSL Evidence: 59. According to the prosecution, the seized articles i.e.grinding stone, sickle, shirt, pant, handkerchief were subjected to forensic science examination and they found to contain ‘O’ blood group which was that of the accused. Regarding that, PW.30 the FSL Expert issued report Ex.P28. Similarly, PW.39 the Scientific Officer of FSL examined MO.1 Kerosene can and MOs.6 to 11 the clothes of deceased Lokeshwari @ Vidya and her child Shubha and they found to contain kerosene contents. During the course of the discussion, it is already held that the prosecution has failed to prove that the blood group of the accused was ‘O’. Therefore, the evidence of PW.30 to that effect is of no help to the prosecution to connect the accused to the crime. So far as traces of kerosene on the clothes of the deceased, the accused has not seriously disputed the nature of death. He only disputed his connection to the crime. Therefore, the evidence of PW.39 also does not advance the case of the prosecution. 60. So far as traces of kerosene on the clothes of the deceased, the accused has not seriously disputed the nature of death. He only disputed his connection to the crime. Therefore, the evidence of PW.39 also does not advance the case of the prosecution. 60. To crown all the aforesaid deficiencies in the evidence of the prosecution, the very genesis of the complaint is shrouded with suspicion. Though the witnesses claim that by the time the complaint was filed, they had suspected the accused or were aware of his involvement in the crime, in the complaint, he was not implicated, though the same was filed after all material witnesses meeting each other. Before the complaint was filed, police including the Investigating Officer had visited the spot. The complainant claims that police substituted their complaint to the one which was written and tendered by him. That is a fatal blow to the credibility of the prosecution case. 61. It is no doubt true that the crime in this case is abhorable and shocks the conscience of the society. However, as held in Sharad Birdhichand Sarda’s case referred to supra, the circumstantial evidence should conclusively lead to the only hypothesis of the guilt of the accused and there should not be any missing link in the chain of the circumstances. Suspicion however strong it may be, cannot take the place of proof. If there is any scope for any explanation/hypothesis consistent with the innocence of the accused, then the accused is entitled to benefit of doubt. This case is fully covered by the said judgment. Therefore, the impugned judgment and order of conviction and sentence are unsustainable and liable to be set aside. Hence, the following: ORDER : The appeal is allowed. The impugned judgment and order of conviction and sentence in S.C.No.72/2015 passed by the III Additional District and Sessions Judge, Hassan is hereby set aside. The accused is acquitted of the charges for the offences punishable under Sections 392, 302 and 201 of IPC. The accused shall be set at liberty forthwith, if his detention is not required in any other case. The order of the trial Court regarding disposal of the properties is maintained. Communicate copy of this order to the trial Court and the concerned prison forthwith.