V. D. GYANI, J. ( 1 ) THE appellants stand convicted under Section 302 nw 34 and Section 397 nw 34 I. P. C. They have been sentenced to undergo R. I. for life and ten years respectively under the above heads. A fine of Rs. 500/- each has also been imposed on each count on both of them and in lieu of payment of fine a further imprisonment for three months. The sentences have been directed to run concurrently. They were tried alongwith one Sidhu since acquitted by the trial court. ( 2 ) PROSECUTION case in brief was Ramkuwarbai aged about 35 years, was living with her father in village Fattanpur within the jurisdiction of Police Station, Tonkkhurd. She was married to one Madanlal of Village Kanasia. She was deserted by her husband as she was sterile and was forced to live with her father. On 18-12-1987 in the afternoon around 3-4. 00 p. m. she had gone to take a round of her field. As she did not return, her uncle Govind P. W. 10 was informed about it by Mohan P. W. 1 her cousin. Both of them went in search of Ramkuwarbai; but to no avail. Next day morning they again started in search of Ramkuwarbai. In the meanwhile Ambaram P. W. 3 S/o. Baldeo, who had spotted the dead body of Ramkuwarbai lying between Fattanpur and Nandol, informed Ambaram s/o Dayaram of village Kanaria and Badrilal of the same village that Ramkuwarbais dead body was seen by him with her both legs cut in a Kanked, Ambaram s/c Baldeo P. W. 3 thereupon alongwith other villagers went to the spot and found Ramkuwarbais dead body lying in the KANKED. The silver anklets and ether ornaments which she was wearing were found to be missing. Her neck was also cut. Accordingly a report Ex. P. 3 was lodged by Ambaram on 19-12- 1987 at Police Station, Tonkkhurd and a case u/s 302/34 and 394/34 I. P. C. was registered and investigation proceeded. ( 3 ) THE 1. 0. visited the spot and prepared a spot map EX. P. 4 and inquests Ex. P. 5 and P. 6 were also held by him. Blood stained earth, a shoe, basket and a Chonli were seized from the spot as per seizure memo Ex. P. 7. The dead body was sent for post mortem examination. ( 3 ) THE 1. 0. visited the spot and prepared a spot map EX. P. 4 and inquests Ex. P. 5 and P. 6 were also held by him. Blood stained earth, a shoe, basket and a Chonli were seized from the spot as per seizure memo Ex. P. 7. The dead body was sent for post mortem examination. Blood stained clothes of Ramkuwarbai were also received from the hospital as per seizure memo EX. P. 9. ( 4 ) WITNESSES expressed doubt, suspicion about appellant Ramchandra who was arrested vide seizure memo EX. P. 13. At his instance and information EX. P. 15 a pair of anklets were recovered from a goldsmith Bhanudas Soni from Dewas while earrings were recovered from appellant Vikaramsingh. At the time of arrest and personal search Rs. 3,545/- with a silver KANDORA was also recovered from appellant Ramchandra as per seizure Memo Ex. P. 14. The accounts books of goldsmith Bhanudas Soni containing entry of transaction were also seized, as per seizure Memo Ex. P. 10, P. 11, and P. 12. ( 5 ) APPELLANT Vikramsingh was arrested from Bus stand, Dewas vide arrest Memo Ex. P. 16. At his instance Surulia - the earrings were recovered from his house. The articles thus recovered were put to test identification parade during the investigation. It was held by Tahsildar, and its record is Ex. P. 8, EX. P. 27 to P. 30 are photographs of the spot where dead body of Ramkuwarbai was lying. These articles except ornaments were sent to the State Forensic Science Laboratory, Sagar and report received there from is Ex. P. 32, Ex. P. 34 is report of the serologist. ( 6 ) ON completion of investigation the accused were tried for the above offence. The trial court while acquitting one Sidhu found the appellants guilty and convicted and sentenced them as already noted above, hence this appeal. ( 7 ) IT may be noted at the outset that there is no eye witness to the incident. The case depends on circumstantial evidence. Following circumstances held to have been proved by the trial court:i. The deceased Ramkuwarbai had gone to the jungle with silver anklets weighing about one kg. and gold earrings. The anklets could not be easily removed. ii. Soon after the incident the anklets were pledged by accused - appellant Ramchandra with one Bhanudas a goldsmith of Dewas. Following circumstances held to have been proved by the trial court:i. The deceased Ramkuwarbai had gone to the jungle with silver anklets weighing about one kg. and gold earrings. The anklets could not be easily removed. ii. Soon after the incident the anklets were pledged by accused - appellant Ramchandra with one Bhanudas a goldsmith of Dewas. It was at his instance that the anklets were recovered from Bhanudas who has also deposed to the fact that these ornaments were pledged by the accused. iii. Soon after the incident accused Vikramsingh gave information about gold ornaments which were recovered from his possession. iv. The ornaments recovered at the instance of appellants were proved to be that of Ramkuwarbai whose father and uncle had identified before the Naib Tahsildar. The ornaments D. 1, D. 2and E. 1 and E. 2, the anklets and earrings which are recovered at the instance of the accused were thus proved to be that of Ramkuwarbai which she was wearing at the time when she left for the jungle. v. Appellant Ramchandra after the incident was seen going towards Tonkala with a bag. vi. A recovery of blood stained axe at the instance of Appellant Ramchandra. vii. As proved by Dr. Gossar the ankles of Ramkuwarbai were cut as silver anklets which she was wearing could not be easily removed. In order to facilitate the removal which was rather difficult to be removed from a living person Ramkuwarbai's ankles were cut and thereafter the anklets were removed. Shirt recovered at the instance of appellant was found to be blood stained. ( 8 ) LEARNED counsel for the appellants urged that firstly the circumstances have not been fully established and secondly they have not been sufficient in themselves to connect the accused with the alleged crime. ( 9 ) BEFORE proceeding to deal with submission made by the learned counsel it would not be out of place to recapitulate the law relating to circumstantial evidence as laid down by the Supreme Court in Sharad Sarda v. State of Maharashtra. The Supreme Court has laid down following conditions:the circumstances from which the conclusion of the guilt is to be drawn should be fully established. It may be noted here that this court indicated that the circumstances concerned must or shouldt and not May be established. The Supreme Court has laid down following conditions:the circumstances from which the conclusion of the guilt is to be drawn should be fully established. It may be noted here that this court indicated that the circumstances concerned must or shouldt 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 the Supreme Court in Shivaji Sahevrao Bobade v. State of Maharashtra where the following observations were made;certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions. ii. 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. iii. The circumstances should be of a conclusive nature and tendency, iv. They should exclude every possible hypothesis except the one to be proved, and v. 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. T these five principles governing appreciation of circumstantial evidence have been very aptly discribed as Panchsheel of the proof of a case based on circumstantial evidence. It is in the light of these five principles, as they substantially cover the whole gamut of circumstantial evidence, that the above noted incriminating circumstances, as found by the trial court, against the accused, are to be tested, assessed and dealt with. ( 10 ) IT is in the light of the above principles that the evidence adduced by the prosecution needs to be examined. ( 11 ) IT is the prosecution case that accused Ramchandra was arrested as some of the witnesses expressed suspicion about his complicity in the crime. Who were the persons, who expresses such suspicion, is not to be found in the evidence of the Investigating Officer, M. L. Dhurve (P. W. 10 ). He does not disclose the name of those witnesses who had expressed their suspicion about the accused. According to Ex. Who were the persons, who expresses such suspicion, is not to be found in the evidence of the Investigating Officer, M. L. Dhurve (P. W. 10 ). He does not disclose the name of those witnesses who had expressed their suspicion about the accused. According to Ex. P. 13, the arrest memo of Ramchandra, he was arrested on 19-12-1987 at 17. 30 hours in presence of Ramchood Sb Jairamsingh and Gaurishankar Sb Jagannath. Out of them Gaurishankar has been examined by the prosecution as P. W. 13. It is alleged that an amount of Rs. 3,545/- was recovered from his person alongwith a leather money bag and a silver KANDORA. All these articles were seized as per seizure Memo EX. 14. Gaurishankar (P. W. 13) is not merely a witness to these arrests and seizure-memos but to almost every other seizure-memo prepared during the course of investigation and at the time of arrest of other accused as if their timings were certain, their statements recorded under Section 27 of the Evidence Act and recoveries made in pursuance thereto. ( 12 ) RELIABILITY of such a witness was challenged before the trial court, which did not take it seriously and brushed aside the criticism by saying that it was not unnatural for a person attesting such a large number of Panchnamas, and scores of them in the same case. The time gap between the preparation of inquest EX. P. 6 and the arrest of accused Ramchandra is more than six hours. There is absolutely no explanation, either on the part of the Investigating Officer or witness as to what made him to be in the company of the police for all these hours. ( 13 ) IT is significant to note that accused Ramchandra as testified by Gaurishankar, was involved in a theft case just in days before the incident. He was therefore, very much in the eye of the police. So far as this case is concerned, neither the 1. 0. nor any of the witness examined by the prosecution has stated about having expressed their suspicion about Ramchandra. The witness Jagdish has been examined as P. W. 7, only to say that while he was returning to Fattanpur from Tonk-Kala around 5. 00 in the evening, he saw the accused Ramchandra with a bag going towards Tonk-Kala. He has further deposed that Ramchandra was a vagabond. The witness Jagdish has been examined as P. W. 7, only to say that while he was returning to Fattanpur from Tonk-Kala around 5. 00 in the evening, he saw the accused Ramchandra with a bag going towards Tonk-Kala. He has further deposed that Ramchandra was a vagabond. To put his own words: aaropi RAMCHANDRA BADMASH TYPE KA AVARA VYAKTI HA Ramchandra was not being tried for his character or conduct. The witness could not say about the colour of the bag. Assuming for a while for the sake of argument that Ramchandra was seen going with a bag towards Tonk-Kala around 5. 00 p. m. It is an innocuous circumstance and does not either raise any suspicion, much less create an incriminating circumstance. ( 14 ) THERE is yet another infirmity to which it exposed the prosecution case. The arrest-memo, Ex. P. 13 shows that he was arrested at 5. 30 at Tonk-Khurd, there could be no occasion for the witness to have seen him going. It is not to insist on accuracy of timings. The place of arrest is shown to be Tonk Khurd police Station. Which is about 5 kms from village Fattanpur. It is not the prosecution case that Ramchandra was arrested some where else and the arrest-memo was prepared at the police station. Neither Gaurishankar P. W. 13 nor the 1. 0. Dhurve P. W. 16 say so. One has to go by the place and time of the arrest as given in the arrest-memo. The question that arises is why should an accused go to the police station after committing such a ghastly crime. If he was in fact arrested somewhere else or had not stated by the 1. 0. to have done so in his evidence as he has done in the case of accused Vikramsingh, whom he arrested at the bus stand in Dewas. As it is natural the accused would not only carry a substantial amount of Rs. 3,545/-, but also yet another incriminating piece of evidence a KANDORA with him. If he had an opportunity to dispose of other ornaments, as is in fact the prosecution case, why should be carry an incriminating article like KANDORA and that too while going towards the police station. This conduct by itself is extremely unnatural and fails to inspire confidence. 3,545/-, but also yet another incriminating piece of evidence a KANDORA with him. If he had an opportunity to dispose of other ornaments, as is in fact the prosecution case, why should be carry an incriminating article like KANDORA and that too while going towards the police station. This conduct by itself is extremely unnatural and fails to inspire confidence. The learned Judge of the trial court has missed this unnaturality of conduct attributed to the accused. While dealing with the evidence of Ramesh P. W. 15, the learned trial Judge has rejected his testimony as unreliable, holding him to be a stock witness of the police. ( 15 ) HERE is yet another witness, Gaurishankar, who has no other business but to attest and subscribe scores of Panchnamas prepared by the Police in the case. ( 16 ) THE arrest of Ramchandra is shown to have been effected at 5. 30 on 19th and the cash book of Rs. 3,545/- as per Ex. P. 13 is said to have connected with the transaction of pledge. Bhanudas P. W. 12 has been examined by the prosecution to prove this transaction. He has plainly come out with a statement that he did not know Ramchandra and even in the dcc he failed to recognise him. It was towards Vikramsingh that he pointed and Vikramsingh had pledged the silver anklets as per the entry made in Ex. P. 10. There is an apparent over-writing in the weight. But what is more important to be noted is that the solitary transaction entered into in the cash-book which again pertains to the year 1986, it is not a regularly maintained account-book. ( 17 ) SHRI Amarsingh, learned counsel appearing for the appellant strenuously urged that the entry, Ex. P. 10, made in the cash-book is an extremely suspicious entry, concocted by the police. The statement cannot be lightly brushed aside. In the whole cash book the solitary transaction entered is that of Vikramsingh. How can such an entry inspire confidence. Bhanudas has no explanation to offer for this. Even the cash book is not of the year 1986. The explanation offered by the witness is that on the date of incident since it was the cash-book, which was kept for Laxmi Poojan, therefore, the entry Ex. P. 10 was made therein. This explanation is hard to be swallowed. Bhanudas has no explanation to offer for this. Even the cash book is not of the year 1986. The explanation offered by the witness is that on the date of incident since it was the cash-book, which was kept for Laxmi Poojan, therefore, the entry Ex. P. 10 was made therein. This explanation is hard to be swallowed. Firstly, it is too much so that around X-mus, there could be any Laxmi Poojan, which is on the eve of Deepawali only. This inherent infirmity in the Prosecution evidence has gone unnoticed by the learned trial Judge. ( 18 ) THIS is a very suspicious circumstance. It is this circumstance of having pledged the ornaments with Bhanudas which have been heavily relied upon by the trial court. This circumstance as already been discussed above, has not been established by the prosecution and once it goes out as ought to be, a chain of circumstances which prosecution seeks to establish, is not complete. Really speaking the very foundation of the prosecution case is shaken. As it is the case rests on quicksand, prosecution has come out with the case that it was Ramchandra who had pledged the ornaments with Bhanudas as per information memo Ex. P. 15, coupled with the evidence as information memo Ex. P. 15; portion marked AN. An improvement has been made in its earlier version by witness Gaurishankar P. W. 13, who in his evidence - para 4 stating that the accused had stated to the Police that Kadi or Suralia had been either sold or pledged by him through Sidhu and Vikramsingh. This was not the statement made by accused Ramchandra. This is an apparent improvement, made by witness Gaurishankar who had escaped notice of the trial court. Contrary to which prosecution had come forward that the trial court has concluded with from the evidence of Bhanudas it was proved that the Kadi anklets were pledged with him by appellant Vikramsingh, but the case as put forth was that it was Ramchandra who had pledged. The 1. 0. Contrary to which prosecution had come forward that the trial court has concluded with from the evidence of Bhanudas it was proved that the Kadi anklets were pledged with him by appellant Vikramsingh, but the case as put forth was that it was Ramchandra who had pledged. The 1. 0. P. W. 16 in para 5 of his statement, has categorically stated that he had taken the accused Ramchandra to the shop of Bhanudas along with Panchas and it was Ramchandra who asked witness Bhanudas and on being so asked by Ramchandra the cash book of the year 1986 was produced by Bhanudas which was seized vide seizure memo P. 12. It may also be noted that after having visited the shop of Bhanudas, it was only after visited the shop of Bhanudas, that accused Vikramsingh was arrested at Bus Stand, Dewas (see para 6 of the statement of 1. 0. P. W. 16 ). It is thus clear that so far the anklets - Kadis are concerned prosecution case was that it was Ramchandra who had pledged these ornaments. But what was proved is it was Vikramsingh who had pledged the ornaments and this is the finding recorded by the trial court in paragraph 38 of its judgment. The prosecution case cannot be moulded in accordance with the facts as might eventually be established. Prosecution has to come forward with a positive case and in proof thereof has to establish its case. It is a cardinal rule that prosecution can not be allowed to shift its ground. ( 19 ) CIRCUMSTANCE No. 2, as noted above, by the trial Court, in paragraph 38, relating to the pledge of ornaments, by Ramchandra for Rs. 5,000/-, can by no means be said to have been established. ( 20 ) THE other two circumstances relied upon by the trial court, are the recoveries of Surulies from accused Vikramsingh and identification of these ornaments. As already noted above, it was not the prosecution case that it was accused Vikramsingh who had pledged ornaments with Bhanudas. The evidence on this point, the cash book and the entry Ex. P. 10 made therein, has already been discussed above and needs no further discussion. ( 21 ) SO far as recoveries of Surulies earrings; let us turn to the information given by the accused. The evidence on this point, the cash book and the entry Ex. P. 10 made therein, has already been discussed above and needs no further discussion. ( 21 ) SO far as recoveries of Surulies earrings; let us turn to the information given by the accused. This information was solely in relation to Surulies and what is held to have been proved by the trial court, is the KADI anklets for which there was no information, even according to the prosecution given by the accused Vikram. ( 22 ) THE learned Judge of the trial court has confused the whole issue by using down ABHUYUKTGAN accused in plural, whereas the transaction of pledged KADIES even according to Bhanudas was solely with accused Vikram which was not the prosecution case. The other circumstance is recovery of blood stained axe. Its group has not been traced and such recovery is hardly of any consequence. Same is the case with the blood stained shirt. The group of blood has not been traced. It would be significant to note that blood group A-B of the deceased, was available to the prosecution and in the light of series of decisions of Supreme Court a scientific method of determination of blood group, is insisted and should be insisted. Here again the learned Judge of the trial court has gone wrong. ( 23 ) NONE of the articles said to have been recovered at the instance of the accused are found to have been stained with human blood, their origin has not been traced. As per serologist report Ex. P. 34, the blade of axe, shirt, were not found to be stained with human blood. The Supreme Court in Kanta Rehra v. State of Orissa, has propounded the necessity and importance of blood grouping, which is the only conclusive piece of evidence to connect the accused with the crime and in absence of such evidence, of conclusive nature, it cannot be used as circumstance against the accused. The Supreme Court in Kanta Rehra v. State of Orissa, has propounded the necessity and importance of blood grouping, which is the only conclusive piece of evidence to connect the accused with the crime and in absence of such evidence, of conclusive nature, it cannot be used as circumstance against the accused. ( 24 ) THE Supreme Court, as back as 1952 in Hanumant Govind Nargundkar and another v. State of A. P. has pointed out It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be chain of evidence so far complete as not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ( 25 ) APPLYING the test as laid down by the Supreme Court in Shared Sardas case (supra) in paragraph 9, the circumstances relied upon by the trial court for basing an order of conviction, can not be held to have been established. Consequently, this appeal deserves to be allowed, it is accordingly allowed. The conviction and sentence as recorded by the trial court against the appellants are set aside. They be acquitted of the charge framed against them. They be set at liberty forthwith. Appeal allowed. .