(Prayers: this criminal appeal is filed under Section 372 of the Cr.p.c praying to set aside the judgment dated 22-7-2017 passed by the ii additional district and sessions judge, Shivamogga in s.c.no.128 of 2016 - acquitting the respondents/accused no.1 and 2 for the offences punishable under sections 302, 201 and 212 of IPC.

This criminal appeal is filed under Section 378(1) and (3) of the Cr.p.c praying to grant leave to appeal against the judgment and order dated 22-7-2017 in s.c.no.128 of 2016 passed by the ii additional district and sessions court, Shivamogga thereby acquitting the respondents for the offences punishable under sections 302, 201 and 212 of IPC.)

Oral Judgment:

H.P. Sandesh, J.

1. Crl.A.No.2044/2017 is by the appellant/complainant and Crl.A.No.132/2018 is filed by the appellant/State questioning the correctness of the judgment of acquittal dated 22.07.2017 passed by learned 2nd Addl. District & Sessions Judge, Shivamogga, whereby the trial Court acquitted accused Nos.1 and 2 for the offences punishable under Sections 302, 201 and 212 IPC.

                  Heard learned counsels Sri. K. Abhinav Anand, Sri. Syed Akbar Pasha, Sri. D.C. Parameshwariah and Smt. Rashmi Jadhav, learned Addl. SPP for the respective parties.

2. The case of the prosecution before the trial Court, while seeking the prosecution against the accused persons is that:-

                  On 30.01.2016 at about 8.00 a.m., accused No.1 went along with deceased Anamika on a Spender motorcycle bearing registration No.KA-27/8658 from Soraba towards Jade Village, but he did not return till 10.45 p.m. That on that day, while returning back to Soraba, in between 10.45 to 11.30 p.m., near the land of Puttaswamy Gowda situated at Kerehalli Village, when accused No.1 and deceased were sitting by the side of the road for dinner, all of a sudden, a quarrel took place between them and at that time, accused No.1 assaulted on the head and face of deceased Anamika with a wooden club and killed him. Thereafter, accused No.1 took away the bike of the deceased, set fire to it by pouring kerosene and destroyed it in the forest area of Shikaripura-Sagara border on 31.01.2016. It is further stated that though accused No.1 told accused No.2 that he has committed the murder of the deceased, accused No.2 gave shelter to accused No.1 in his house and helped him and thus invoked the offences under Sections 302, 201 of IPC against accused No.1 and Section 212 of IPC against accused No.2. The police having received the complaint, recorded the statement of the witnesses, investigated the matter and filed the charge sheet. Both accused Nos.1 and 2, though initially were taken to custody, were enlarged on bail and thereafter also, they did not plead guilty and claimed trial.

3. Hence, the prosecution relied upon the evidence of PWs.1 to 19 and closed the side of the case of the prosecution and got marked 32 documents as per Exs.P1 to P32 and 14 material objects MOs.1 to 14. Accused Nos.1 and 2 were subjected to examination under Section 313 Cr.P.C. and they denied the incriminating evidence appearing against them and they also did not choose to lead any defence evidence.

4. The trial Court having considered both oral and documentary evidence comes to the conclusion that the death of the deceased is homicidal, however, the offence under Sections 302 and 201 of IPC as against accused No.1 stands not proved and in respect of accused No.2, the charge made against him that he had provided shelter to accused No.1 in his house and hence invoked Section 212 IPC, held that the same is also not proved by the prosecution and hence acquitted accused Nos.1 and 2 vide judgment dated 22.07.2017.

5. Being aggrieved by the judgment of acquittal, the complainant/father of the deceased filed appeal in Criminal Appeal No.2044 of 2017, wherein, the main ground urged by the learned counsel for the appellant is that the trial Court committed an error in acquitting the accused in coming to the conclusion that the chain of events of the circumstances of the case is not proved, though the prosecution has proved the case beyond reasonable doubt that the accused only have committed the murder of the deceased. Further, learned counsel would submit that the eye witnesses may lie or change their version, but the circumstances will never lie; that the investigation has been conducted by an experienced police officer of the rank of Dy.S.P. i.e., PW.18 and the oral and documentary evidence of the prosecution witnesses along with material objects produced before the Court is sufficient to convict the accused; that PW.2, PW.3, PW.4, PW.6, PW.7 and PW.16 have deposed before the Court regarding the deceased last seen in the company of accused No.1; minor discrepancies in the evidence of these witnesses is highlighted by the trial Court and the trial Court has also magnified said discrepancy and erroneously has come to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt; that an observation is also made by the trial Court that PW.2 has not stated in his complaint Ex.P2 regarding deceased and  accused  No.1  leaving  the  house  together;  the  settled principle remains that complaint is not an encyclopaedia of everything, it is a brief report to set the criminal law into motion; that the trial Court is not justified in discarding the evidence of PW.2; that even after considering the evidence of PW.2, PW.3, PW.4, PW.6, PW.7 and PW.16 in totality, the trial Court ought not to have discarded the evidence of these witnesses and erroneously proceeded to come to the conclusion that the prosecution has not proved the case; that accused No.1 made voluntary statement with regard to committing the offence and recoveries were effected under Section 27 of the Evidence Act based on his voluntary statement; the evidence of PW.8 is cogent and beyond reasonable doubt, wherein he categorically stated that accused No.1 led him, other police and panch witnesses and showed the place, where he burnt the motorcycle of the deceased, i.e., in a forest area; that when the Engine number of the motor bike was visible and the same was also mentioned in the spot inspection report, where the motorcycle was burnt, there is serious lapse on the part of the Investigating Officer in not collecting the details from the very owner of the said motor cycle; that the trial Court ought to have taken note of the fact that the blood stained mud was recovered by drawing a mahazar in terms of Ex.P7; that accused No.1 led police and panchas to his residence and voluntarily produced the kerosene can, wherein only 2 to 3 litres of kerosene was remaining out of 10 litres of kerosene and produced the blood stained shirt, which is marked as MO.10 and the same is recovered by drawing the mahazar in terms of Ex.P8; the accused has further led the police and panchas to house of one Dyavappa at Kundur Village and he showed the shop for having purchased the petrol and said Dyavappa-PW.5 identified accused No.1 and says that he gave 1/2 litre of petrol to accused No.1, which was with him; Ex.P4 is the said mahazar, through which, MO.8 is recovered; that accused No.1 led the police and panchas to the house of accused No.2 and showed the new house, which was being constructed, wherein accused No.1 has taken shelter with him; that a separate mahazar was drawn to that effect and MOs.13 and 14/Nokia Mobile and Samsung Mobile phones were recovered at the instance of accused No.1 and recovery of these incriminating articles and marking of material objects coupled with evidence of PW.8, which has not been shaken by the defence, but in spite of the same, the trial Court fails to consider the material objects i.e., MOs.1 to 7, which were recovered at the scene of occurrence and also that MOs. 11 and 12 though were proved and mahazars were drawn, the evidence of panch witnesses is not considered in proper perspective; that the identity of accused Nos.1 and 2 is not in dispute as they are from local place known to the family of the deceased and other local people; that deceased and accused No.1 were moving together for the purpose of canvassing for elections as father of the deceased had intended to contest for the Zilla Panchayat elections, which is also not in dispute; that PW.1 Doctor, who conducted the post mortem report on the deadbody of the deceased has categorically deposed with regard to the nature of injuries and opined that the deceased died due to shock and severe injuries sustained and that the skull of the deceased had fractured and brain matter had come out; PW.14 to PW.16, who are inquest panch witnesses have given their evidence before the court; the trial Court failed to consider the evidence of PW.12, PW.17 to PW.19, who are the police witnesses and PW.18 the Investigating Officer; that the evidence of PW.8 and PW.13 clearly discloses with regard to the recovery is concerned; learned counsel also brought to the notice of this court to the evidence of PW.16, who had witnessed accused Nos.1 and 2 on the previous day and also on the date of the incident and on enquiry, they revealed that they are going to Jade Village and all these circumstantial evidence has not been properly considered by the trial Court; that the evidence of PW.8 and PW.13 is very clear with regard to Ex.P8 is concerned and the evidence of these witnesses is consistent and corroborative in nature. Insofar as recovery is concerned, learned counsel also brought to the notice of this Court to the Regional Forensic Science Laboratory, Davanagere(RFSL) Report Ex.P24, wherein also, article Nos.5(one shirt) and 10(shirt) were found with 'A' group blood and no explanation is offered by accused No.1 and seizure mahazar report Ex.P6 is also very clear to the effect that the bike was also burnt; that even though PW.16 who has been examined before the Court, at the first instance, he did not make any statement that he found both accused and deceased together, but in the further statement recorded on 04.02.2016, he has stated that he found both accused No.1 and deceased going on bike and the said evidence of PW.16 was also not taken note of; learned counsel would  submit  that  when  there  is  a  clear  recovery  at  the instance of the accused No.1, though further statement of PW.16 was recorded on 04.02.2016 and though motive for committing the offence is established, the trial Court failed to take note of the same.

6. Learned counsel for the appellant/complainant in support of his argument also relied upon the principles laid down in various judgments, particularly upon the judgment in the case of Rumi Bora Dutta v. State of Assam reported in 2013 Crl.L.J.. 3260 (SC), wherein in the said case, in paragraph No.23 and 24, the Apex Court discussed with regard to the disclosure statement made by accused leading to discovery of weapons of crime from their house and recovery of weapons from house was not explained by the accused except by making a bald denial and story of attack by masked offenders given by wife to police found false and to be intended to mislead police and hence, in the instant case, learned counsel would contend that the circumstances prove the guilt of the accused.

7. Further, learned counsel relied upon the judgment in the  case  of  Vasanta  Sampat  Dupare  v.  State  of Maharashtra reported in 2015 Crl.L.J. 774, wherein at paragraph Nos.57, 58, 59 and 60, the Hon'ble Supreme Court held that recovery of dead body and certain articles at the instance of the accused and also chemical analysis report showing that blood group on stones matches with blood group found on clothes of accused and accused has not offered any explanation with regard to the recovery made at his instance and hence, learned counsel would submit that the above instance also supports the case of the prosecution as there are incriminating circumstances.

8. Learned counsel also relied upon the judgment in the case of Wazir Khan v. State of Uttarakhand reported in (2023) 8 SCC 597 and brought to notice of this Court to paragraph Nos.22 and 23, wherein also the Hon'ble Apex Court discussed with regard to the circumstantial evidence and when circumstantial evidence becomes an additional link in the chain of circumstances to make it complete, the same ought to have been taken note of.

9. Learned counsel relying upon the judgment in the case of Ravasaheb Alias Ravasahebgouda and Others v. State of Karnataka reported in (2023) 5 SCC 391, brought to the notice of this Court to paragraph Nos.33 and 34, wherein also, the Hon'ble Apex Court held that the Court of Appeal has wide powers of appreciation of evidence in an order of acquittal as in the order of conviction, along with the rider of presumption of innocence which continues across all stages of a case, but such court should give due importance to the judgment rendered by the trial Court and it is further held that the High Court, being the first appellate court must discuss/re-appreciate the evidence on record and, failure to do so is a good ground enough to remand the matter for consideration.

10. Learned counsel also relied upon the judgment in the case of Premchand v. State of Maharashtra reported in (2023) 5 SCC 522 and brought to notice of this Court, to paragraph No.18 wherein a discussion was made with regard to examination of accused and absence of satisfactory explanation as to facts within special knowledge of accused and held that such infirmity can be treated as a factor against him and further held that though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances i.e., Section 106 of the Evidence Act.

11. Learned counsel further relied upon the judgment in the case of Ram Gopal S/o Mansharam v. State of Madhya Pradesh reported in (2023) 5 SCC 534 and brought to the notice of this Court once again relying upon Section 106 of the Evidence Act that when the accused has got special knowledge of the incident, he has to throw light upon such facts and he relies upon paragraph Nos.5 to 12, wherein also discussion was made with regard to time-gap between period when deceased was last seen with petitioner therein and recovery of corpse of deceased was found quite proximate, particularly having regard to the oral evidence of the witnesses, enmity between deceased and petitioner which also surfaced and when corroborative evidence is available before the court, even in respect of recovery of weapon, the Court ought to have taken note of the same.

12. Learned counsel also relies upon the judgment in the case of Darshan Singh v. State of Punjab reported in (2024) 3 SCC 164 and brought to the notice of this Court, to paragraph No.19, wherein also, discussion was made with regard to circumstantial evidence, when the commission of murder is said to have taken place inside a house and absence of explanation or false explanation on the part of the accused and when the presence of the accused inside the house is established on record, in such a situation, if the accused remains quiet or offers a false explanation, that is also one of the additional link in the chain of circumstances.

13. Learned counsel relies upon another judgment in the case of Joy Devaraj v. State of Kerala reported in (2024) 8 SCC 102 and vehemently contends that intention and nature of fatal injury and intention to cause death can easily be discerned from conduct of the appellant and nature of fatal injuries inflicted, which in ordinary course of nature was sufficient to cause death and hence counsel would contend that Court has to take note of ingredients of Section 300 IPC, which is enough to convict the appellant, with regard to the motive is concerned. Learned counsel relies upon paragraph No.24, wherein the same was discussed that the intention to cause death can be gathered and pointed out that itself is a motive to take away the life, when the accused intended to take away the life with inflicted injuries.

14. Learned counsel also relies upon the judgment in the case of Chandan v. State (Delhi Admin.) reported in (2024) 6 SCC 799 and brought to the notice of this Court to paragraph Nos.6 to 12, wherein also discussion was made with regard to stabbing of deceased by accused with knife, which caused his death, otherwise, established beyond reasonable doubt. Absence of proof of motive held irrelevant in such a case and conviction for murder was confirmed.

15. Learned counsel relies upon the judgment in the case of Sambhubhai Raisangbhai Padhiyar v. State of Gujarat reported in (2025) 2 SCC 399 and referring this judgment with regard to Section 27 of the Evidence Act is concerned, he brought to notice of this Court to paragraph No.26, wherein discussion was made with regard to the conduct of accused in leading investigation team and pointing out hidden place of apparel of the deceased and admissibility in absence of admissibility of recovery evidence, irrespective of the admissibility of discovery panchanama, recovery panchanama and irrespective of the admissibility of the recovery of the clothes of the deceased on the statement of the accused, the court has to take note of the conduct of the appellant in leading the investigation team and the panchas and pointing out where the apparel of the deceased was hidden, would be admissible and hence learned counsel contends that the principles laid down in the judgments' referred supra will come to the aid of the case of the prosecution and hence requests the Court to consider the same while deciding the matter.

16. Learned Addl. SPP Smt. Rashmi Jadhav, appearing for the State also brought to notice of this Court, in addition to the argument of learned counsel appearing for the complainant, Mr. Abhinav Anand, the evidence of PW.2. The evidence of PW.2 discloses that on the date of the incident, deceased went along with accused No.1 on the motorcycle, later, dead body of deceased was found with fatal injuries. The complaint was also marked as Ex.P2. The evidence of PW.2 is corroborated by the evidence of PW.3. PW.3, father of the deceased also categorically says that there was quarrel between accused No.1 and deceased and on account of the said quarrel, the accused committed the murder of deceased. She also contends that the evidence of PW.4 is also very clear that, accused No.1, who was accompanied by a person, visited his hotel at Kerehalli, Jade Grama. After finishing the meal, both of them left the hotel on the bike. The evidence of PW.6 also discloses that at about 7.30 p.m., accused No.1 visited his wine shop along with another person and purchased liquor. The said witness has identified accused No.1. Learned counsel also vehemently contends that the evidence of PW.5 discloses that accused No.1 had taken half a litre of petrol from the said witness by paying an amount of Rs.40/- and to that effect also, a mahazar(Ex-P4) was drawn. PW.8 is the panch witness to Ex-P5 mahazar. Learned counsel also vehemently contends that when the recovery is made at the instance of accused No.1 and witness PW.8 also categorically deposes with regard to the recovery is concerned, all these materials were not considered by the trial Court and extended the benefit of doubt in favour of the accused.

17. Per contra, learned counsel appearing for the respondents/accused Nos.1 and 2 would vehemently contend that in order to prove the factum of motive, there is no material before the Court and only relying upon the evidence of PW.2 and PW.3 with regard to motive as well as other circumstances that accused No.1 and deceased were last seen together, none of the other witnesses have spoken about the same; learned counsel also vehemently contends that though PW.16 deposes that he found accused No.1 and deceased on the previous dates and also on the date of the incident, but his evidence is not consistent and not trustworthy; that regarding recovery is concerned, Ex.P8 seizure mahazar is dated 04.02.2016 and the incident has taken place on 30.01.2016 and though mahazar was drawn in terms of Ex.P8 and seized the articles, but the same were sent to FSL on 11.03.2016 and hence the RFSL reports cannot be accepted; that Section 27 of the Evidence Act is not complied with.

18. In support of his argument, he relies upon the judgment in the case of Boby v. State of Kerala reported in (2023) 15 SCC 760 and contend that the Hon'ble Apex Court in the above judgment has taken note of the decision rendered in the case of Subramanya v. State of Karnataka reported in 2022 SCC Online SC 1400, wherein Section 27 of the Evidence Act was discussed and also as to how to make the recovery. Learned counsel would contend that while making recovery also, the accused must explain before the panch witnesses as to what he is going to do, particularly in respect of recovery or discovery. There must be compliance at the first instance where a disclosure must be a first part of recovery and after recovery, the recovery in the presence of witnesses also should be complied and that is the second part of mahazar. Learned counsel brought to notice of this Court the discussion made by the Hon'ble Apex Court in the said judgment from paragraph No.22 onwards and contends that when the same is not complied, question of relying upon Section 27 of the Evidence Act does not arise. Further, in support of his argument, learned counsel relied upon the judgment in the case of State of Rajasthan v. Hanuman reported in (2025) SCC Online SC 1387 to paragraph Nos.6 and 7, wherein the Hon'ble Apex Court held that incriminating circumstances relied upon by the prosecution i.e., the motive and the recovery of the blood stained weapon, even taken in conjunction, cannot constitute the complete chain of incriminating circumstances required to bring home the charges against the accused and further that the High Court seems to have overlooked the FSL report which fact was stressed upon by learned counsel for the appellant and further held that, even if the FSL report is taken into account, then also, other than the fact that the weapon was recovered at the instance of the accused tested positive for the same blood group as that of the deceased (B +ve), nothing much turns on the said report.

19. He further brought to notice of this Court to the judgment of the Hon'ble Apex Court in the case of Raja Naykar v. State of Chhattisgarh reported in (2024) 3 SCC 481, wherein also it was held that mere recovery of a blood- stained weapon even bearing the same blood group of the victim would not be sufficient to prove the charge of murder.

20. With regard to aspect of recovery is concerned, learned counsel relying upon Subramanya's case referred supra brought to notice of this Court to paragraph No.76, wherein discussion was made with regard to Section 27 of the Evidence Act and also to paragraph No.77, wherein it is held that the first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant therein, which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act and further referring to paragraph No.78 also, wherein discussion was made with regard to the first instance, wherein before the panch witnesses, the accused must state what he is going to reveal i.e., the first part of panchanama and also with regard to the recovery is concerned, the same is also to be proved and the law expects the Investigating Officer to draw the discovery panchanama as contemplated under Section 27 of the Evidence Act. In the instant case, if we read the entire oral evidence of the Investigating Officer, it is clear that the same is deficient in all the aforesaid relevant aspects of the matter. Learned counsel referring to the discussion made in this paragraph would contend that recovery is not proved, procedure is not followed and the same is not disclosed in the presence of panch witnesses and the evidence of panch witness PW.8 is not clear as to whether only he was called to the police station, but nothing is spoken by him, that in his presence, the accused disclosed as to what he is going to do and hence the same cannot be relied upon.

21. Having heard the appellant counsel and also the counsel appearing for the respondent, so also learned Additional SPP, this Court has to analyze the material available on record and having analyzed the materials, the points that would arise for consideration of this Court are:

                  1. Whether the appellants in both the appeals filed by complainant as well as State have made out the case to reverse the finding of the trial Court in coming to the conclusion that trial Court has committed an error in not considering the circumstantial evidence available on record, which is sound circumstance to convict the accused and in coming to the conclusion that the prosecution has proved the case beyond reasonable doubt?

                  2. What order ?

22. Having heard the respective counsels, who appears for the appellants, learned Addl.SPP and also the principles laid down in the judgment relied upon by the learned counsel appearing for the appellant i.e., complainant's counsel, as well as the grounds, which have been urged by the State and also the principles laid down in the judgments of the Hon'ble Apex Court, which have been relied upon by the learned counsel appearing for the respondents/accused, this Court has to analyze the evidence available on record.

23. Now the question before this Court is with regard to the theory of last seen witnesses wherein the evidence of the witness should be consistent and corroborative to come to a conclusion that last seen witnesses evidence supports the case of prosecution.

24. The counsel appearing for the victim would vehemently contend that evidence of PW2, PW3, PW4, PW6, PW7 and PW16 is very clear with regard to the last seen theory in connection with seeing of the accused as well as the deceased together and the same is proved. In this regard, this Court has to examine the evidence of PW2. The evidence of PW2 is that he found accused No.1 and deceased together in the early morning at 8.00 to 8.30 and both of them proceeded in the motorcycle bearing KA27-8658. But in the next sentence, he says that the said fact came to his knowledge from his brother. Thus, his evidence reveals that his brother called and informed him about committing of murder. Thereafter, he rushed to the spot and he found the material objects at the spot. It is also the evidence of PW2 that he had lodged the complaint in terms of Ex.P2 and police came to the spot and conducted the spot mahazar and seized the articles which were found at the spot and also identified MO1 to MO7.

25. This witness was subjected to cross-examination. In the cross-examination, he deposed that when he went to the spot, he found his brother as well as two police and no other persons were there. He also admits that he did not mention the averments in the complaint with regard to that he found both accused and deceased together. However, he volunteers that once again said fact came to his knowledge only through his brother. Hence, it is clear that he did not found both accused No.1 and also the deceased together going in the motorcycle.Thus, the evidence of PW2 will not come to the aid of the prosecution since he did not notice that both accused and deceased went together.

26. Now, this Court has to examine the evidence of PW3. PW3 also says that on 30.01.2016 at 8.00 a.m., the deceased went in the motorcycle belongs to his wife’s sister’s son. Thus, his evidence is that the deceased alone went in the motorcycle and he did not turn up. When PW2 says that he came to know through PW3 that accused No.1 and deceased went together, but PW3 did not speak anything that accused No.1 and deceased went together. Hence, the evidence of PW3 also will not comes to the aid of the prosecution with regard to the fact that accused No.1 and deceased went together while going in the motorcycle.

27. Another witness of the prosecution is PW4. PW4 says that on 30.01.2016 at around 3.00 p.m., accused No.1 came along with one person and they had the food and thereafter both of them left in the motorcycle. This evidence also will not comes to the aid of the prosecution since this witness  only  identified  the  accused  but  not  identified  the deceased and even did not spell out the name of the deceased. In the cross examination also he admits that he cannot tell how many people comes to hotel and he can identify them.

28. The other witness to whom the prosecution relies upon is PW5. PW5 says that on 31.01.2016, accused No.1 came and purchased the petrol of half liter and made the payment of Rs.40/-. He also says that police brought accused No.1 to his shop and he identifies him. Having considered that this witness is also a witness to Ex.P4, but he did not disclose anything that both accused No.1 and deceased came together and he only says that accused No.1 came and purchased the petrol.

29. The other witness is PW6. PW6 says that he had seen accused No.1. That on, 30.01.2016 at around 07.30 he found accused No.1 in the wine shop and one more person was there along with him and both of them have purchased the pint beer. That on 02.02.2016, police brought accused No.1 and he identified him. He also says that he came to know that the person who came along with accused No.1 was murdered. This witness also not clear that both deceased and accused No.1 were together on the date of the incident and both of them came to the wine shop, but he only identified accused No.1.

30. Now, another witness is PW7 who is also an advocate. In his evidence, he says that he came to know about the death of the deceased through his brother and he also gave further statement before the police. He speaks that he found accused No.1 and also says that on enquiry, his brother revealed that accused No.1 and deceased left together but the same came to his knowledge only through his brother. Hence, he is also a hearsay witness.

31. Now, the witness remains is PW16 wherein he says that he is a mahazar witness to Ex.P27 and photo which is marked at Ex.P30. Apart from that he says that on 29.01.2016 and 30.01.2016, he found both the deceased and accused No.1 who were proceeding in the motorcycle bearing No.KA27-8658 towards Soraba and they revealed that they are going to Jade Village. He made the said statement before the police on 04.02.2016. Having perused the statement dated 04.02.2016, no doubt, in the bottom it is mentioned that he enquired and found,  but  that  is  the  further  statement.  In  the  cross- examination, when suggestion was made that both of them not moving to Soraba and also did not disclose anything that they are going to Jade village and the said suggestion was denied. However, he says that from 31.01.2016 to 04.02.2016, he was in the village itself.

32. Having considered the evidence available before the Court with regard to the last seen theory is concerned, it discloses that there is no consistent evidence that all of them have seen both deceased and accused No.1 together and though an attempt is made by PW2 that he found both of them, but he says that he came to know the same through PW3 and PW3 is none other than the father of the deceased and he never disclosed that he found both of them and only he deposed that at 08.00 a.m., the deceased left in the motorcycle.

33. With regard to the last seen theory is concerned, this Court would like to rely upon the judgment of STATE OF UP vs SATISH reported in (2005) 3 SCC 114. In paragraph 22, the Apex Court discussed that last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.

34. In the case on hand also, PW16 says that he found the accused and the deceased on 29.01.2016 and 30.01.2016 and they were moving to Soraba. But his evidence is not consistent since he says only in further statement that he found both of them and he is one of the witnesses to the mahazar at Ex.P27. But prosecution has cited him as a witness also but PW16 not stated that he has seen both accused and the deceased together. Thus, he ought not to have cited as a last seen witness and only he has to cited as witness to Ex.P27. Apart from that this incident has taken place at around 11.00 p.m. But the witnesses who have spoken have not identified the deceased along with accused No.1, though they claim that accused No.1 came to the wine shop as well as he came to the shop to purchase the petrol, none of them have identified that both of them were together except the evidence of PW16 and his evidence is also not trustworthy to rely upon the same.

35. Now, coming to the aspect of recovery is concerned, the counsel appearing for the appellant mainly pressing upon the recovery of blood stained cloth of the accused at his instance and relies upon Section 27 of Evidence Act and mainly relies upon the evidence of PW8. No doubt, PW8 is the witness for recovery. In his evidence, he says that mahazar was drawn in terms of Ex.P5 and two mobiles were seized from accused i.e., Samsung as well as Nokia phones. In Samsung, there were two SIMs and in Nokia, there was one Sim and the same were seized and he also signatory to the mahazar. But the fact that even though IO made him as panch witness for recovery, even after seizing the mobile also, the deceased mobile was also found but not collected any call records. Thus, there is no such evidence to link the accused and the deceased.

36. The other evidence of PW8 is that the accused only pointed out the spot where he burnt the motorcycle and also found half burned motorcycle and the same is in a lonely place and mahazar was drawn in terms of Ex.P6. His evidence in the cross examination that in the forest area Watcher will be there and he admits the same. It was a plantation area and the same is a government plantation. When the place is a remote place and forest area and when the watcher will be there, suggestion was made that no spot was shown by the accused and the same was denied. But in order to comes to a conclusion that the same was pointed out by the accused, Court has to take note of the fact that whether procedure has been followed or not.

37. The other instance spoken by the accused that he only led all of them to the spot. It is not in dispute that the spot already known to the police as well as the public and even though mahazar was drawn in terms of Ex.P7, the same will not comes to the aid of prosecution since question of invoking Section 27 of Evidence Act for discovery does not arise.

38. The other circumstance is with regard to the seizure of Kerosene can and the same was produced at the instance of the accused and also found 2 liters of kerosene in the said can. Apart from that he had shown the shirt which was kept in the house and the same was seized by drawing the mahazar in terms of Ex.P8 and also identifies MO11 and MO12 i.e., plastic cover and plastic bag and also drawing of mahazar in terms of Ex.P4. In the cross examination of PW8, he admits that his shop is situated in the line of police station which is in existence and the distance is only 500 meters. The spot which was shown is at the distance of 10 to 12 kilometees from the police station. The police also seized the broken club and he had signed the same and also he says that he has not stated anything to draw the mahazar and he has not given any instructions to prepare the mahazar, police only written the same and he had signed the same after knowing the contents of the same.

39. Having considered this evidence, it discloses that it is not the evidence of PW8 that in his presence, accused was asked to disclose what he is going to do. This witness says that he was called to the police station and directly says that accused produced two mobiles and mahazar was drawn and also the accused led him and nowhere this witness says that in his presence, accused was asked what he is going to do. In this regard, this Court has to take note of the judgment of the Apex Court reported in (2023) 11 SCC 255 in case of SUBRAMANYA vs STATE OF KARNATAKA. The Apex Court while discussing the same in not accepting the case of prosecution theory comes to the conclusion in keeping in mind that we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law as per Section 27 of the Evidence Act and the Apex Court extracted Section 27 of the said Act in paragraph 76. In paragraph 78, it is stated that if, it is say of the Investigating Officer that appellant/accused while in custody on his own free will and while volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. Then the first thing that Investigating Officer should have done was to call for two independent panch witnesses at the police station itself. Once the two independent witnesses would arrive at the police station, thereafter, in their presence, the accused should be asked to make an appropriate statement as he may design in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes a statement before the two independent panch witnesses, the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchanamma that the Investigating Officer may draw in accordance with law. The first part of the panchanamma for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness and his own free will and volition to point out the place where the weapon of offence or any other articles used in the commission of the offence had been hidden. Once the first part of the panchanama is completed, thereafter the police party along with the accused and  the  two  independent  witnesses  would  proceed  to  the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered, then that part of the entire process would mark as the second part of panchanama. This is how the law would expect the Investigating Officer to draw the discovery panchanama as contemplated under Section 27 of the Evidence Act.

40. In the case on hand, having considered the principles laid down in the judgment referred supra, we do not find any such circumstances calling upon the panch witnesses and asking about the accused to state what he is going to do and drawing the first part of panchanama in the police station. Having perused the voluntary statement, it discloses that accused had disclosed with regard to where the motorcycle was burnt and not stated anything about producing of the blood stained cloth. No doubt, FSL report discloses that there is a blood stains in Article 5 as well as Article 10 i.e., the shirt of the deceased as well as the accused. The report is very clear that except in the mud sample, there is no blood stains and also in respect of Article 6 is concerned, blood sample which was taken, the same was not helpful for prosecution to find out the blood group.

41. In the case on hand, it has to be noted that there is a blood group of ‘A’ positive and the same is also a human blood. If the same is a ‘A’ positive and found the blood stain in the shirt of the deceased as well as accused, whether the same belongs to the deceased's blood group, there is no evidence before the Court. Article 6 is a blood samples of the deceased is disintegrated and did not materialise the same as the same that of the blood group of the deceased. When the recovery is not in accordance with law as contemplated by the Apex Court in the case SUBRAMANYA referred supra particularly in paragraph 78 and the very recovery is defective and the FSL report also not conclusive to comes to a conclusion that blood group is of the deceased and the same is found in the cloth of the accused, the same cannot be relied upon.

42. Now the counsel also relies upon the judgment of the Apex Court in the case of STATE OF RAJASTHAN VS HANUMAN referred supra wherein also with regard to the incriminating circumstances discussed in paragraphs 6 and 7 that the motive and the recovery of the blood stained weapon and the same cannot be a complete chain of incriminating circumstances required to bring home the charges against the accused. The Apex Court also relied upon the judgment of RAJA NAYKAR vs STATE OF CHATTISGARGH reported in (2024) 3 SCC 481, referred supra wherein also held that mere recovery of a blood stained weapon, even bearing the same blood group of the victim, would not be sufficient to prove the charge of murder. Having taken note of the principles laid down in the judgments of the Apex Court referred supra, the same also not come to the aid of prosecution when the counsel appearing for the appellant/victim mainly pressing upon the recovery of blood stained cloth.

43. The other circumstance is with regard to the seizure of two mobiles. Already this Court discussed that there is no any such call record details. Apart from that the counsel brought to notice of this Court that PW3 categorically spoken while giving the evidence that there was a scuffle between the accused and deceased. When the accused had sustained the injuries,  Court  ought  to  have  taken  note  of  the  said circumstances but the said contention also cannot be accepted for the reason that prosecution not denies that accused was subjected to medical examination. But IO has not collected injury certificate of the accused. If prosecution has collected the material with regard to even accused had sustained the injuries that would have been one more linking circumstances. But no such linking circumstances are available before the Court to link the chain of circumstances. No doubt, it is the case of PW3 that the said motorcycle belongs to his wife’s sister’s son. But to that effect also the IO has not collected any material. No doubt, it is settled law that the very defect of investigation is not a ground to extend the benefit and acquit the accused. But it is settled law that others incriminating evidence if it is available and if any lapses on the part of the IO, the Court can come to a conclusion that the prosecution has proved the case.

44. It is also important to note that the counsel appearing for the appellant mainly relies upon the judgments of the Apex Court with regard to Section 106 of the Evidence Act. No doubt, if nobody can access the place where the incident was taken place, then burden lies upon the accused to explain the same. But here is a case of the murder which has taken place in a public place and not in any particular vicinity. Within the vicinity of the accused, if any such offence has taken place, then there would be a force in the contention of the counsel appearing for the appellant. Thus, Section 106 of the Evidence Act also will not come to the aid of the prosecution to come to such a conclusion.

45. With regard to the motive is concerned, when the case is rest upon the circumstantial evidence, motive is significant. If there is any direct evidence before the Court, then motive is insignificant. But when the case is rest upon the circumstantial evidence, motive is very significant. In order to substantiate the motive, nothing is established except stating that election was declared and PW3 was having an intention to contest in the Zilla Panchayat election and also the deceased came from Bangalore to canvas on behalf of his father. But it is a case of the prosecution that deceased as well as accused both of them were making an attempt to canvas in the election. Even PW16 says that both of them were moving around Soraba that too, they intend to go to Jade village. Thus, there is no any rivalry between them, but one of the relative of the accused also intending to contest in the election. But to that effect, no material is collected by the IO and there is no oral or documentary evidence placed before the Court. Though it is contended that there is a motive and in order to substantiate the motive also, no material is placed before the Court to show that there was a motive to commit the murder. None of the circumstantial evidence inspires the confidence of the Court.

46. The counsel relies upon judgment of the Apex Court in the case of BOBY vs STATE OF KERALA referred supra and relies upon paragraph 21, wherein also with regard to the discovery is concerned discussed in detail and disclosure of the same that Section 27 of the Evidence requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to the said fact. The information as to past user or the past history of the object produced is not related to its discovery. The said view has been consistently taken note of in the judgment of Apex Court in (1978) 4 SCC 90 in the case of Chandran vs State of Tamil Nadu and also in the Judgment of State of Karnataka vs David Rozario and another reported in (2002) 7 SCC 728 wherein also clearly discussed that it is therefore necessary for the benefit of both the accused and the prosecution that the information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The doctrine is founded on the principle that if any fact is discovered as if such made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but it results in discovery of a fact, it becomes a reliable information.

47. Having taken note of the principles laid down in the judgments referred supra, it is very clear that prosecution was not able to prove all the circumstances and to establish the chain of circumstances to link the accused for the offence committed as allegedly charged against the accused.

48. With regard to the offence invoked against accused No.2 is concerned that he had given shelter having coming to know that accused No.1 committed the murder, to that effect also there is no any corroborative piece of evidence before the Court except framing the charge against accused No.2 that he had given the shelter. When accused No.1 is entitled for benefit of doubt when there was no any chain link is established, the question of invoking Section 212 as against accused No.2 also does not arise. All these factors were taken note of by the Trial Court while appreciating the material available on record particularly in paragraph 21 with regard to the evidence of PW8, since with regard to the recovery, that is incriminating material against the accused, the evidence of PW8 is relied upon by the prosecution. So also the Trial Court taken note of the judgment reported in 2014 SAR (Criminal) 337 Supreme Court in paragraph 23 with regard to the recovery of incriminating articles is concerned wherein held that even assuming to be true that recovery of certain incriminating articles were made at the instance of the accused under Section 27 of the Evidence Act, that by itself cannot form the basis of conviction.

49. The Trial Court also taken note of the judgment reported in 2016 (3) Cri.320 wherein also held that conviction on the basis of evidence of last seen, conduct of the accused, recovery of dead body and clothes of the accused worn by him at the time of incident pointing out to the guilt of the accused, cannot be halted. However motive, if proved, would supply a link in the chain of circumstantial evidence, but absence thereof cannot be a ground to reject the prosecution case.

50. Even taken note of the said principles and having discussed the several judgments of the Apex Court referred supra and also having evaluated and analysed the evidence available on record, this Court comes to the conclusion that in the absence of establishing chain of circumstances, the accused cannot be convicted. The law is very settled that in a case, prosecution must prove the case beyond reasonable doubt and then burden shifts upon the accused to explain the incriminating circumstances. Having taken note of all the materials available on record, this Court comes to the conclusion that there is no any convincing evidence before the Court and the same has also taken note of by the Trial Court while acquitting the accused extending the benefit. Mere recovery of blood stained cloth in the case on hand, there is no evidence before the Court to show that the blood found in the cloth of the accused is also the blood belongs to the deceased and there is no any comparison and the Article 6 sample blood was disintegrated and could not comes to a conclusion that the said blood found in the cloth of the deceased as well as the accused belongs to the deceased only. There is no any corroborative evidence before the Court. When such being the case, we do not find any ground to reverse the finding of the Trial Court.

51. It is settled law that if the material available on record is not sufficient, then the benefit goes in favour of the accused. Thus, the benefit should be given to the accused only and not reversing the judgment of the Trial Court. Having considered the principles held with regard to the criminal jurisprudence is concerned, we do not find any such circumstances and warranted to reverse the judgment of the Trial Court. Hence, it is not a case to reverse the judgment of the Trial Court since not found any reasons to come to other conclusion that accused only committed the murder as charged against him.

52. In the judgment of SHARAD BIRDICHAND SARDA vs STATE OF MAHARASHTRA reported in (1984) 4 SCC 116, Apex Court held that even if certain circumstances pointed out the role of the accused, but in a case of circumstantial evidence, unless all chain links are established, question of convicting the accused does not arise. Here is also a case that the counsel appearing for the appellant pointed out the blood stains found in the cloth of the deceased as well as the accused and the same is one blood group, but that cannot be only ground to convict the accused. Even pointed out the spot where the motorcycle was also burnt and this Court having referred the judgment of SUBRAMANYA’s case referred supra, particularly with regard to invoking Section 27 of the Evidence Act is concerned also discussed in detail. In view of the judgments of the Apex Court, it is settled law that throughout in criminal jurisprudence, in a case of circumstantial evidence, all the circumstances must be proved and there must be link to each of the circumstances to establish the crime. But in the case on hand, the same is not found.

53 In view of the discussions made above, we pass the following:

                  ORDER

                  Both the criminal appeals are dismissed.

                  If any bail bond is executed by the accused, the same stands cancelled.