This appeal filed under Section 378(1) and (3), Cr.P.C. is directed against the judgment of acquittal passed by the I Additional Sessions Judge, Davanagere, in S.C.37/01. The respondent herein will be referred to as accused as per his ranking before the trial court. He had faced trial for the offence punishable under Section 302, I.P.C. and is ultimately acquitted by the trial court by a considered judgment dated 10.2.2007.

2. The matter is already admitted. The facts leading to the filing of the appeal are as follows:

a) Accused is a resident of Machogondanahalli village, Honnali Taluk, Davanagere. On 11.9.2010 at about 8.00 p.m., deceased Mahesh left his house and did not return. On 12.9.2010 at 8.30 a.m., the father of the deceased found his dead body in the land of Karibasappa. He found that his son had been murdered by using a sharp edged weapon.

b) He chose to lodge first information at 10.30 a.m. on 12.9.2010, on the basis of which a case came to be registered in Crime No.158/10 for the offence punishable under Section 302, I.P.C. According to the prosecution, the accusedKantaraj, son of Baswanthappa was the accused and he was arrested at 2.30 p.m. on the same day and subjected to custodial interrogation. On the information allegedly given by him to the police while in police custody, incriminating material came to be recovered at his instance.

c) According to the prosecution, accused showed the place where he had thrown the chopper with which he had allegedly assaulted the deceased and committed his murder. The said recovery was made in the presence of Panchas and mahazar was drawn to that effect. According to the prosecution, accused had committed theft in the house of the deceased earlier and was caught redhanded. On convening Panchayat, he was admonished and ordered to pay a fine of Rs.500/. It is stated that the deceased was often insulting this petitioner as a thief and this was not liked by the accused. Therefore, he wanted to eliminate the deceased, and it is in this regard he took the deceased to a secluded place near the tank of the village and murdered him by assaulting with a chopper, that too, after making him to drink liquor.

d) According to the prosecution, the circumstances relevant are:

(i) motive,

(ii) deceased being last seen in the company of the accused and

(iii) recovery of incriminating materials like chopper and mobile of the deceased.

3. What is argued before this court by the learned SPP, Mr.P.M.Nawaz is that the trial court has not properly analyzed the oral and documentary evidence and has not adopted right approach to the real state of affairs. He has argued that the initial burden cast on the prosecution has been effectively discharged and the onus had shifted on the accused and the same is not properly explained. It is further argued that though the prosecution case is to be proved beyond reasonable doubt, the learned judge has blown out of proportion some inadequacies found in the prosecution case and thus the accused has been given the benefit of doubt.

4. Per contra, learned counsel for the accused has argued that the circumstances relied upon by the prosecution have not been proved to the hilt and that they have only remained as circumstances. There are inherent inconsistencies in the version of material witnesses relating to the recovery of incriminating materials and the aspect of the deceased being last seen in the company of the accused, apart from the failure to prove motive. It is argued that the trial court has rightly assessed the entire evidence in right perspective and has given the benefit of doubt on the basis of serious inconsistencies found in the case of the prosecution.

5. After going through the records and hearing the learned Spl. Public Prosecutor, Mr.P.M.Nawaz and learned counsel for the respondentaccused, following points arise for consideration of this court:

(1) Whether the learned sessions judge is justified in coming to the conclusion that the prosecution has fai