JUDGMENT : K.S.MUDAGAL, J. 1. Appellants were accused Nos.1 and 2 in SC No.67/2017 on the file of IV Addl. Sessions Judge, Mysore. They were tried in the said case for the offence punishable under Sections 302 and 397 of IPC read with 34 IPC on the basis of the charge sheet filed by Nazarabad Police Station in Crime No.354/2016 of their Police Station. 2. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court. 3. The charge against accused was that accused Nos.1, 2 and absconding accused/Kunta were migrant labourers. On the night of 21.10.2016 they tried to rob some transgenders near People’s Park College situated in Nazarabad Mohalla, Mysore. Those transgenders raising commotion escaped. Hence the accused entered the room of Venkatarangaiah/security guard in People's Park College. They tried to steal his mobile phone and run away. But Venkatarangaiah woke up and questioned. The accused strangulated him with towel, assaulted him with stones and blade and committed his murder. Then they tried to rob cash from PW.15 who was sleeping in the next room and assaulted him and escaped. 4. Respondent/police had filed charge sheet only against accused Nos.1 and 2 on the ground that accused No.3/the other culprit was absconding. Therefore, on filing the charge sheet, learned Magistrate took cognizance of the offence only against accused Nos.1 and 2 and committed them to the Sessions Court for trial. 5. The Trial Court framed charges against accused Nos.1 and 2 for the offences punishable under Sections 302 and 397 read with Section 34 IPC. Accused Nos.1 and 2 denied the charges. Therefore, trial was conducted. In support of the case of prosecution, PWs.1 to 15 were examined, Exs.P1 to P16 and MOs.1 to 7 were marked. Accused Nos.1 and 2 after their examination under Section 313 did not lead any defence evidence. 6. Trial Court on hearing the parties by the impugned judgment and order convicted the appellants/accused Nos.1 and 2 for the offences punishable under Sections 302, 392 part I read with Section 34 IPC and sentenced them to different terms of imprisonment and fine as follows: Accused Nos.1 and 2 have challenged the said judgment and order in the above case. 7. Heard both side. Submissions of Sri H.S. Suresh, learned counsel for appellants/accused Nos.1 and 2: 8. PW.15 is alleged sole witness/victim in the case. 7. Heard both side. Submissions of Sri H.S. Suresh, learned counsel for appellants/accused Nos.1 and 2: 8. PW.15 is alleged sole witness/victim in the case. According to the prosecution, the accused assaulted and caused him injuries. However, he was not referred for medical examination. His name did not appear in the complaint as another victim. According to PW.15, soon after the incident he went to the police station and informed the police. But PW.14, who registered the FIR and conducted the investigation does not whisper anything about PW15 visiting the police station. Contrary to that, he says that on getting information, he went to the scene of offence, secured the relatives of the victim and received the complaint from them. Therefore, the genesis of filing of the complaint itself is shrouded with doubt. PW.15 allegedly sighted the accused during the night hours. The accused were strangers to him. But, before filing the charge sheet, test identification parade was not conducted for their identification. According to PW.15, for the first time he identified the accused before the Court. Therefore, the identification of the accused by PW.15 itself is doubtful. According to PW.15 there was one more eye witness by name Kumar. But said Kumar was neither cited by the Investigating Officer as eye witness nor examined before the Court. The accused were connected to the crime based on alleged recovery of phone of the deceased at their instance from PW.12. But no material was produced to show that the said phone belonged to the deceased. Even PW.2/wife of the deceased could not state the particulars of the phone number of her husband or her phone number. Without such identification, Trial Court was in error in relying on the evidence of PW.15 or the alleged circumstance of the recovery. The alleged confession of the accused before PWs.1 to 3 and 7 was in the police station. Thereby, the same is hit by Section 25 of the Evidence Act. The trial Court has failed to appreciate the evidence on record and apply the law on the point judiciously. Hence the impugned judgment and order shall be set aside and accused be released. 9. In support of his submissions he relies on the following judgments: i) Thammaraya and another vs. State of Karnataka,  Crl.A.No.649/2013 (SC) (DD 22.01.2025) ii) Prakash vs. State of Karnataka Submissions of Sri Vijayakumar Majage, learned SPP-II (2014)12 SCC 133 10. Hence the impugned judgment and order shall be set aside and accused be released. 9. In support of his submissions he relies on the following judgments: i) Thammaraya and another vs. State of Karnataka,  Crl.A.No.649/2013 (SC) (DD 22.01.2025) ii) Prakash vs. State of Karnataka Submissions of Sri Vijayakumar Majage, learned SPP-II (2014)12 SCC 133 10. The death of victim being homicidal is proved by the medical evidence. PW.15 was the eye witness to the incident. His evidence was cogent and consistent. Some minor inconsistencies or discrepancies, if any, do not belie his entire evidence. The fact of victim being employed in People’s Park College was proved by the evidence of PWs.4, 6 and 7/Principal, PT master and lecturer respectively of the said college. There was recovery of phone of the victim at the instance of accused No.1 from the custody of PW.12. The recovery proceedings were supported by the evidence by PW.8. Accused failed to explain their presence at the scene of offence and the circumstance of recovery. Therefore, Trial Court was justified in accepting the said evidence and convicting and sentencing the accused. PW.15 was the victim of assault and he had seen the accused. Therefore, his identification of accused before the Court was sufficient. The impugned judgment and order does not warrant interference of this Court. 11. Considering the submissions and the material on record, the question that arises for determination of the Court is “whether the impugned judgment and order of conviction and sentence is sustainable?” Analysis 12. The case of the prosecution in brief is as follows: i) Accused Nos.1 and 2 and absconding accused/Kunta @ Dosekalu were the migrant labourers. After their work they used to sleep wherever they get accommodation. Victim Venkatarangaiah, aged 70 years was employed in People Park College as security guard/attender since 10 years prior to the incident. In the night he used to sleep in a room situated in the People’s Park College. The accused used to rob the transgenders who come and stay in that park during night. On the day of the incident in the similar fashion they attempted to rob transgenders, but raising commotion they escaped. In that process they noticed victim sleeping in the room with a phone. Therefore, they picked up that phone for stealing. By that time, victim woke up and resisted. On the day of the incident in the similar fashion they attempted to rob transgenders, but raising commotion they escaped. In that process they noticed victim sleeping in the room with a phone. Therefore, they picked up that phone for stealing. By that time, victim woke up and resisted. Therefore, they assaulted him with stones, blade and strangulated him and committed his murder. PW.15 was sleeping in the next room. They robbed his Rs.70/-, assaulted him and escaped. ii) PW.14/PI of Nazarabad Police Station got the information about the incident, visited the scene of offence, secured the college staff and through them secured PW.1/son of the deceased and PW.2/wife of the deceased. Thereafter, PW.14 received the complaint/Ex.P1 from PW.1. Based on Ex.P1 he registered the FIR Ex.P10. Then he conducted the spot mahazar, inquest mahazar, seized blood stained clothes of the victim, blood stained mud and sample mud. Got subjected the dead body of the victim to PM examination and recorded the statements of the witnesses. On his instructions his staff apprehended and produced the accused before him with report Ex.P11. He interrogated the accused and recorded their voluntary statements as per Ex.P12 and 13. Based on such voluntary statements and mahazar Ex.P6, he recovered mobile phone of the victim which was sold by accused No.1 to PW.12. On conducting the investigation, he filed the charge sheet. 13. The accused did not dispute that the victim Venkatarangaiah was found dead in a room in the premises of People’s Park College situated in Nazarabad Mohalla, Mysore. 14. The Trial Court has based its conviction solely on the evidence of PW.15 and the circumstance of seizure of the mobile phone. It is no doubt true that injured eye witness stands on a higher pedestal. If his evidence is found credible, conviction can be solely based on the same. This Court has to examine whether the evidence of PW.15 was sufficient to hold that he was an injured witness in the case and victim. 15. To prove its case prosecution examined PWs.1 to 15. PW.1/complainant and PW.3 are the sons of the deceased. PW.2 is the wife of the deceased. PWs.4,6 and 7 are the Principal, physical instructor and lecturer of People’s Park College. 15. To prove its case prosecution examined PWs.1 to 15. PW.1/complainant and PW.3 are the sons of the deceased. PW.2 is the wife of the deceased. PWs.4,6 and 7 are the Principal, physical instructor and lecturer of People’s Park College. PW.5 is the witness to spot mahazar Ex.P2, PWs.8 and 11 are the witnesses to the alleged seizure of mobile phone M.O.6 at the instance of the accused under the mahazar Ex.P6. PW.12 is the cucumber vendor to whom accused No.1 allegedly sold robbed phone for Rs.200/-. PW.9 is the FSL expert. PW.10 is the lecturer of People’s Park College and inquest panch, PW.13 is the doctor who conducted post mortem examination on the dead body of the victim. PW.14 is the Police Inspector who registered the FIR and conducted investigation. PW15 is the injured eyewitness. 16. The case of the prosecution was based on the following set of evidence: i) PW.15 injured eye witness ii) The circumstance of recovery of M.O.6 under the mahazar/Ex.P6 iii) The medical evidence regarding cause of death iv) The evidence of official witnesses Reg. eye witness: 17. The evidence of PWs.4,6, 7 and 10 shows that Victim Venkatarangaiah was working in People’s Park College as attender-cum-guard and he was found dead in the premises of their college with homicidal injuries. The next question is whether the presence of PW.15 the alleged injured eye witness is probable at the scene of offence. PW.15 was not the employee of the said college. In the chief examination he stated that he was from Sheehalli village, Bannur Hobli T.Narasipura Taluk. He claimed that he used to come to Mysore for coolie work and he got acquainted with victim Venkatarangaiah. He says he used to sleep in the room situated besides the room of Venkatarangaiah and another labour by name Kumar was also sleeping by the side of the room. 18. In the chief examination he claims that the accused after assaulting Venkatarangaiah came to his room and tried to strangulate him with towel and they robbed Rs.60/- from him and due to the assault he has lost his teeth, by that time Kumar also came there and on seeing him accused left him and escaped. He further deposed that soon thereafter he went to Lushkar Police Station and informed them. By the time he returned to the scene of offence Police had come there. He informed them also. He further deposed that soon thereafter he went to Lushkar Police Station and informed them. By the time he returned to the scene of offence Police had come there. He informed them also. If PW.15 had gone to Police Station and informed them, then the theory of PW.14 getting information from other persons becomes doubtful. Then marathon efforts of he going to the scene of offence, securing the college authorities and through them securing PW.1 was not required. The case could have been registered based on the information given by PW.15. 19. It is also material to note that if at all PW.15 was injured witness and present all along, in the complaint Ex.P1 his name should have been reflected as injured person which is conspicuously absent in the complaint. The complaint is purportedly filed on 22.10.2016 at 3.15 a.m. FIR Ex.P10 shows that the same was delivered to the Court on 22.10.2016 at 12.30 p.m. Still the name of PW.15 did not reflect in complaint or FIR. PW.15 says that he had lost his teeth. If he had suffered injuries and was at the scene of offence when the Police arrived, he should have been referred to the doctor for medical examination. But there is no explanation for not referring him to the medical examination or not getting any medical record about the injuries suffered by him. 20. PWs.4, 6, 7 and 10/college authorities or PWs.1 to 3 sons and wife of the deceased, who come to the scene of offence do not whisper anything about the presence of PW.15 or Kumar. They did not even speak that PW.15 used to come and sleep in the premises of their college. Under the aforesaid circumstance, the evidence adduced by the prosecution is not sufficient to hold that presence of PW.15 at the scene of offence and the fact of he suffering injuries as alleged was proved beyond reasonable doubt. 21. So far as identification of accused by PW.15, the incident said to have taken place night between 10.30 and 11.30 p.m. PW.15 in his chief examination does not state that the rooms where they were sleeping had lights. Investigating Officer did not collect any material to show that during the said period there were lights and electricity supply. PW.15 does not state on what basis he identified accused Nos.1 and 2 and the other assailant. Investigating Officer did not collect any material to show that during the said period there were lights and electricity supply. PW.15 does not state on what basis he identified accused Nos.1 and 2 and the other assailant. In the cross examination he admits that he was not working in the college and he was working in Madegowda Circle and the said place is at a distance of 2 kms from the scene of offence. He states that he does not know from which village Kumar hails. Not even spot mahazar was drawn to show that there was any source of light at the place where PW.15 was allegedly assaulted. 22. The accused were strangers to PW.15 and the incident took place during night hours. PW.15 doesn't even say what was the duration of he seeing the accused. But, he says that the accused tried to strangulate him and ran away. Therefore, it can be made out that the duration of he allegedly confronting the accused is very short. He doesn't say specific identification marks of the accused for identifying them. In such circumstances, Hon'ble Supreme Court in Thammaraya 's case referred to supra has held that Test Identification Parade is required. PW.14/Investigating Officer has no explanation why he has not conducted the Test Identification Parade. PW.15 does not even say that at any time, he had seen the accused before their deposition before the Court. 23. Similarly in paragraphs 15 and 16 of the judgment in Prakash 's case referred to supra, the Hon'ble Supreme Court while considering the requirement of the pre-trial Test Identification Parade held as follows:- “ 15 . An identification parade is not mandatory nor can it be claimed by the suspect as a matter of right. The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial. If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable unless the suspect has been seen by the witness or victim for some length of time. In Malkhansingh v. State of M.P. [ (2003) 5 SCC 746 it was held: (SCC pp. 751-52, para 7) “7. If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable unless the suspect has been seen by the witness or victim for some length of time. In Malkhansingh v. State of M.P. [ (2003) 5 SCC 746 it was held: (SCC pp. 751-52, para 7) “7. … The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact.” (Emphasis supplied) 24. In the light of the above legal principles and facts and circumstances of the case, without such Test Identification Parade, in our considered opinion, the trial Court was in error in accepting the identification of the appellants/accused Nos.1 and 2 by PW.15 before the Court for the first time. Reg: Recovery of MO.6/mobile 25. According to the prosecution, MO.6 belonged to victim Venkatarangaiah and accused Nos.1 and 2 robbed the same on committing his murder and accused No.1 sold the same to PW.12/cucumber vendor. On arrest of accused No.1 on the basis of his voluntary statement, the same was recovered under mahazar Ex.P6 in the presence of panch witnesses PW.8 and PW.11. To accept said circumstance, the prosecution has the first burden of proving the fact that the said phone belonged to the deceased. PW.1 to PW.3 sons and wife of the deceased in their evidence did not whisper any particulars of phone of the deceased. They only say that the police secured them in the police station, showed two accused and they came to know that the said accused had robbed the said phone and cash from the victim. According to the prosecution, the accused took out the SIM card from the said phone and threw that somewhere and had taken away only the phone. Nothing was produced to show that the deceased had owned any phone or SIM card. Therefore, the basic ingredient of the deceased owning MO.6 itself was not proved. 26. According to the prosecution, the accused took out the SIM card from the said phone and threw that somewhere and had taken away only the phone. Nothing was produced to show that the deceased had owned any phone or SIM card. Therefore, the basic ingredient of the deceased owning MO.6 itself was not proved. 26. Further, PW.12 though in the chief examination deposed that the first accused sold the said phone to him for Rs.200/- representing that his wife is due for delivery and he is in need of money. He did not support the prosecution version regarding the seizure of the same under mahazar Ex.P6. He also denies having given statement regarding sale of phone by accused No.1. In the cross-examination, he admits that he keeps selling cucumbers to the police and the police keep speaking to him. He says he doesn't remember on which date and when the accused sold the phone to him and the said phone belonged to which company. He says he identifies the phone only on the fact of the same being white coloured one. 27. PW.11/the witness to the alleged seizure of phone under Ex-P6 did not support the prosecution version. PW.8 no doubt in the chief examination deposed that on the requisition of the police, himself and PW.11 went along with the police near Chaluvamba Hospital and one cucumber vendor produced the mobile and the police seized the same. His cross examination shows that he was the nephew of the deceased. His cross examination shows that the police took him and others in their jeep, since he was the relative of the victim. He says, he does not remember the name of the person from whom the mobile phone was collected. He was not able to give the particulars of the mobile phone. Ex.P6 states that the said mobile phone was recovered near Chaluvamba Hospital, Mysore and the mahazar was drawn there. PW.8 in the cross examination says that he has subscribed his signature on Ex.P6 in the police station. Thus, first of all, the mobile phone/MO.6 belonging to the deceased and he using the same was not proved. Secondly, the seizure of the same as stated in Ex.P6 was not proved beyond reasonable doubt. 28. PW.8 in the cross examination says that he has subscribed his signature on Ex.P6 in the police station. Thus, first of all, the mobile phone/MO.6 belonging to the deceased and he using the same was not proved. Secondly, the seizure of the same as stated in Ex.P6 was not proved beyond reasonable doubt. 28. Above discussions show that trial Court has failed to evaluate the evidence in integral manner and has jumped to the conclusion that PW.15 was the injured eye witness and seizure of the mobile phone was proved and proceeded to convict and sentence the accused. The same is against the principle that the prosecution has to prove the charge beyond reasonable doubt. Therefore, the impugned judgment and order of conviction and sentence is liable to be set aside. 29. Hence, the following:- ORDER i) The appeals are allowed. ii) The impugned judgment and order of conviction and sentence in S.C.No.67/2017 passed by the IV Additional Sessions Judge, Mysuru is hereby set aside. iii) Appellants/accused Nos.1 and 2 are hereby acquitted of the charges for the offences punishable under Section 302 r/w 34 IPC and Section 397 IPC. iv) Accused shall be set at liberty forthwith, if their detention is not required in any other cases. v) The order of trial Court with regard to disposal of the properties and reference of the matter under Victims' Compensation Scheme to DLSA, Mysuru is maintained. Communicate copy of this order to the trial Court and the concerned Prison, forthwith.