JUDGMENT Fakhruddin, J. -- 1. This appeal has been preferred by appellant Ramanand against his conviction and sentence passed by Shri M.S. Qureshi, Additional Judge to the Court of Sessions Judge, Gwalior in S.T. No. 49/80, on 4.7.1980. The appellant, in this case, has been convicted for committing murder of Mst. Takhatrani and one Jagdish (her son). He has been convicted for substantive offence under section 302 I.P.C. on two counts and sentenced to imprisonment for life on each count. Both sentences were directed to run concurrently. 2. During the pendency of this appeal, this Court was pleased to release the appellant on bail. He appeared on some dates but thereafter did not appear and, as such, proceedings under section 446 Cr.P.C. were initiated against him and his surety on 20.5.1994. The proceedings against the surety had to be dropped as he died and information to that effect was given by police station concerned. Non-bailable warrants of arrest issued against the appellant could not be served and he is still absconding. 3. This Court on 20.10.1994 recorded these facts and directed hearing of this appeal in October, 1994. The appeal, however, came up for hearing on 1.5.1995. 4. On 1.5.1995, Shri R.K. Sharma, counsel for the appellant filed an application reporting no instructions/Shri R.K. Sharma & V.K. Agrawal, counsel offered to assist the Court as amicus curiae. They appeared and rendered valuable assistance. 5. Briefly stated the prosecution case is that during September, 1979, complainant Harbhajan (P.W. 1) his son Suresh (P.W. 7), son-in-law Raghuvari (P. W. 13) who lives in his house, his wife Takhatrani (deceased) and son Jagdish (deceased) were living in Kaji Patha Mohalla at Bhander. Harbhajan (P.W. 1) besides carpenter is also the agriculturist. Harbhajan (P.W. 1) and Batola (P.W. 4), the father of the accused were doing the agricultural work jointly on the field of Kaji Muhiuddin (P.W. 5), known as Patiyawala Khet since last more than five years. Accused Ramanand during time of incident was living with his father Batole, mother and younger brother near the house of Harbhajan in the same Mohalla. It is not disputed-that prior to the incident there was some hot exchange between the accused and his father Batole and during night accused had left his house and started living separately, but subsequently on the persuasion of his father Batole, he came back and started living jointly. 6. It is not disputed-that prior to the incident there was some hot exchange between the accused and his father Batole and during night accused had left his house and started living separately, but subsequently on the persuasion of his father Batole, he came back and started living jointly. 6. Deceased Takhatrani, wife of Harbhajan, generally used to go near Pola Pahad for collection of dung cakes and regularly used to prepare there the dung cakes. She used to go daily towards Pola Pahad and during day used to come only after sun-set, after taking dung cakes. On 27.9.1979 at 2 O'clock, she had gone with his son Jagdish to bring the dung cakes in their baskets but on that day they did not return in the night. Harbhajan (P.W. 1) got suspicious. He, therefore, during night, told to the neighbours, namely, Iqbal (P. W. 2), and Mohammad Ali (P. W. 6), and went alongwith these persons to make search. The search was made till night, but they could not trace the missing persons. In the early morning, Harbhajan alongwith Raghuvari and Suresh went to search these missing persons and then he found that near the place where the deceased Takhatrani used to prepare the dung cakes, about 400 yards distance from that place on the fields of accused and Gyasi on a pagdandi where crops of Jwar and Arhar standing, the dead-bodies of Mst. Takhatrani and Jagdish were lying. The dead-bodies were on the pagdandi, which goes to the house of Mst. Takhatrani. Near the dead-bodies, the chappals of both the deceased as well as baskets were lying. The dead-body of Mst. Takhatrani was lying ahead about 511 ft. from the dead-body of her son Jagdish. There were three cut marks on the neck of the deceased Takhatrani as a result of which, her neck was totally dissected. There were also two marks of cut on the neck of Jagdish. 7. The prosecution alleges that in the same night the accused also did not return to his house and when he came back after about 17-18 days, in Bhander, he was arrested for the said offence by the police. 8. On 28.9.1979, since the dead-bodies were found, Harbhajan (P.W. 1) went to the police station and lodged the report, which is recorded by Ghambir Singh (P.W. 15). This report is Ex. Piton record. 8. On 28.9.1979, since the dead-bodies were found, Harbhajan (P.W. 1) went to the police station and lodged the report, which is recorded by Ghambir Singh (P.W. 15). This report is Ex. Piton record. In the report it is stated that Harbhajan (P.W. 1) had a suspicion on the accused because accused did not like meeting between his father Batole and Mst. Takhatrani and he absconded from the day of incident. Gambhirsingh (P. W. 15) reached at the spot, prepared the panchnama of the dead-bodies as per Ex. P/5 and P/6, seized the articles, which were lying near the dead-bodies, seized the plain and blood-stained earth, recorded the statements of the witnesses, namely, Kaji Muhiuddin (P.W. 5), Iqbalkhan (P.W. 2). Then the dead-bodies were sent for post-mortem as per Ex. P/5 and P/6. Dr. R.N. Gupta (P.W. 8) conducted autopsy on 28.9.1979. The post-mortem of Jagdish is Ex. P/ 5 and of Mst. Takhatrani is Ex. P/6. 9. The prosecution further alleges that on 27th September, 1979 at about 5-6 O'clock in the evening when Mst. Takhatrani and Jagdish (her son) were returning after taking dung cakes in their baskets, the accused attacked on them by Kulahri. It is further alleged that when Suresh (P.W. 7) was returning in the same evening at about 4-5 O'clock after taking dung cakes from her mother Mst. Takhatrani, he also saw the accused having Kulhari wearing green colour shirt and green colour Pant. The accused was also having Safi on his shoulder. In the same night at about 10-30, Takhatrani's son-in-law Raghuvir while returning after seeing Ramlila, he saw the accused having Kulhari. It is alleged that after committing murder, the accused buried his Kulhari into earth near Pola Pahad, and also his blood-stained clothes, and then ran away in the night from Bhander. It is stated that on 27.9.1979 he took Rs. 3740/- from Indore Bank and went to Bombay. He remained there for some time and then returned to Jhansi and thereafter he met with Harbhajan's Samdhi and the father of Ratanlal, he made some extra-judicial confession with Ratanlal and expressed sorrowfulness. Then he kept himself in concealment near the hills of son Talaiya. 3740/- from Indore Bank and went to Bombay. He remained there for some time and then returned to Jhansi and thereafter he met with Harbhajan's Samdhi and the father of Ratanlal, he made some extra-judicial confession with Ratanlal and expressed sorrowfulness. Then he kept himself in concealment near the hills of son Talaiya. The prosecution further alleges that on 10.10.1979 the accused was arrested on the information given by Roshansingh and Mohammad the witnesses, and from the possession of the accused two tickets (to and fro) dated 29.9.1979and 1.10.1979 from Jhansi to Bombay and From Dadar (Bombay) to Jhansi were recovered. The pass-book showing the entry of withdrawal dated 27.9.1979 was also seized. On that very day, in the presence of these witnesses, a blood-stained Kulhari, clothes which were buried into the earth near the hills of Sona Talaiya, were seized, and they were sent to the office of the Director Forensic Science Laboratory, Sagar, M.P. for examination. 10. The learned Sessions Judge framed the charges against the accused/appellant for the offence under section 302 of I.P.C. for committing murder of Mst. Takhatrani and Jagdish. The accused-appellant abjured the guilt and contended that he has been falsely implicated. 11. During trial, the prosecution examined P.W. 1 Harbhajan, P.W. 2 Iqbal Khan, P.W. 3 Ayodhya, P.W. 4 Batole, P.W. 5 Kaji Muhiuddin, P.W. 6 Mohammad Ali, P.W. 7 Suresh, P.W. 8 Dr. R.N. Gupta, P.W. 9 Hari Mohan, Sharma, P.W. 10 Nandlal Gutpa, P.W. 11 Roshan, P.W. 12 Ratanlal, P.W. 13 Rabhuvir, P.W. 14 Hukumsingh, and P.W. 15 Gambhirsingh. The defence has examined Jagdish Prasad Tiwari (D.W. 1) as defence witness. 12. There is no eye-witness in this case. The case entirely rests on the circumstantial evidence. For circumstantial evidence it would be just and proper to refer AIR 1952 SC 343 (Hanumant Govind Narundkar & another v. State of M.P.). In Hanumant's case it has been observed - "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 all 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 the 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." In another cases reported as AIR 1984 SC 1622 (Sharad Birdhichand Sardar v. State of Maharashtra) on the same subject on a close analysis of several decisions the Supreme Court concluded as follows :- "That the following conditions must be fulfilled before a case against an accused can be said to be fully established:- (1) The circumstances from which the conclusion of 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 'should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be' or 'should be ' proved as was held by the Supreme Court in Shivaji Sahevrao Bobade v. State of Maharashtra ( AIR 1973 SC 2622 ) 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. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." These five principles governing appreciation of circumstantial evidence have been aptly described as 'Panchsheel' of the proof of a case based on circumstantial evidence in Neeraj v. State of M.P. ( 1991 JLJ 564 ). In the light of these five principles, as they substantially cover the whole gamut of circumstantial evidence that the circumstances as found by the trial Court against the accused appellant are to be tested, assessed and dealt with. 13. The learned Sessions Judge in para 17 of his judgment has framed seven circumstances, which are summarised as under :- Circumstance No.1 -- that on 27.9.1979, both the deceased i.e. Takhatrani and Jagdish, were seen alive in the evening of 4-5 O'clock by Suresh (P.W. 7) and the accused wearing green pant and shirt and a towel with an axe was seen by Suresh near the place where the deceased were found. Circumstance No.2 -- that at 10-11 in the night of the same day; the accused was seen suspiciously with an axe coming from the side of the deceased. Circumstance No.3 -- that in those days, the accused had withdrawn Rs. 3740/- from Indore Bank. Circumstance No.4 -7 that on 27.9.1979 in the evening the accused left the village without informing his relations and without any cause, and on 15.10.1979 he was arrested with two tickets dated 29.9.1979 from Jhansi to Bombay and dated 1.10.1979 from Dadar (Bombay) to Jhansi. Circumstance No.5 -- that after his arrest he gave information about the axe and clothes which he was wearing at the time when he was last seen with the deceased. Circumstance No.6 -- that the accused made extra judicial confession to the deceased's relatives during his absconding period. Circumstance No.5 -- that after his arrest he gave information about the axe and clothes which he was wearing at the time when he was last seen with the deceased. Circumstance No.6 -- that the accused made extra judicial confession to the deceased's relatives during his absconding period. Circumstance No.7 -- that a day before the occurrence he assaulted his father and threatened to kill Mst. Takhatrani. 14. We have taken up these circumstances together for consideration. 15. So far as circumstances No.1 is concerned, the trial Court has considered in para 21 of its judgment and found the evidence of Suresh (P.W. 7) to be artificial, which has not been relied. 16. For circumstance No.2 the evidence of Raghuvir (P.W. 13) was considered thoroughly by the trial Court and this witness has been declared hostile. The trial Court itself found that circumstance No. 2 is not proved against the accused-appellant. 17. So far as circumstance No.3 is concerned, the accused has not disputed the withdrawal of the money, and the withdrawal of the money from Indore Bank does not in any way connect the appellant with the offence. Circumstance No., 4 that the accused left the village without informing his relations and without any cause and he was arrested with two tickets (to and fro) from Jhansi to Bombay and then Dadar (Bombay) to Jhansi does not connect the appellant with the offence. If the accused had gone secretly, he would have certainly destroyed his tickets. Therefore, the seizure of tickets in any way does not connect the appellant with the offence because if he wanted to go secretly he would not have kept with him these tickets. 18. It would be just and proper to refer the case of Rahman v. State of U.P. ( AIR 1972 SC 110 ), In that case it has been held that :- "It is true that the appellant was concealing himself for nearly a month though he must have known that he was wanted by the police and that he left his wife to face the situation alone. But absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reasons." 19. But absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reasons." 19. So far as circumstance No.5 is concerned, there is an evidence of P.W. 15 Gambhirsingh that the accused was arrested on 15.10.1979 before the witnesses namely Roshansingh and Mohhamad. There is no evidence that the articles, which were seized from the accused-person, were duly sealed. On perusal of Ex. P/23 it shows that the articles were sent to Forensic Science Laboratory after three months from the date of seizure, i.e. 15.1.80. 20. This Court in Neeraj v. State of M.P. ( 1991 JLJ 564 ) has considered regarding the delay, and held that the articles should be duly sealed on the spot and the seals should remain intact till they are actually despatched to the Chemical examiner. 21. So far as the circumstantial evidence regarding an axe and clothes is concerned in AIR 1950 Madras 714 in Periyaswami's case, it has been held :- "Ordinarily, in a case of circumstantial evidence where there has been a discovery as a result of confession made under section 27 Evidence Act, one expect to find the discovery of something which can be associated with the deceased and not with the accused. Hence in a case of murder the mere fact that a weapon, which could have been used for the commission of the crime, was discovered with blood-stains on it on information given by the accused would not, by itself, be sufficient to show that he was the murderer." 22. So, circumstance No.5 that the accused was arrested and at his behest, an axe (blood-stained) and clothes were seized, does not connect the appellant-accused, with the offence. 23. So far as circumstance No.6 is concerned, the evidence of P.W. 12 Ratanlal is that before 14-15 days after the incident, the accused came at his house and told him that he killed Mst. Takhatrani and Jagdish. He further states that he promised accused to help in any way. The trial Court has not placed reliance on the evidence of this witness, and thus this circumstance does not connect the appellant with the offence as it was not proved by the Court-below. 24. Circumstance No.7 is also not proved. Takhatrani and Jagdish. He further states that he promised accused to help in any way. The trial Court has not placed reliance on the evidence of this witness, and thus this circumstance does not connect the appellant with the offence as it was not proved by the Court-below. 24. Circumstance No.7 is also not proved. The trial Court in its judgment has not considered as to whether there was any such assault or threatening. Thus, this circumstance is also not against the accused/appellant. 25. Learned counsel for the appellant further placed reliance on AIR 1979 SC 1620 , 1969 Cr.A.R. 250 and AIR 1987 SC 1507 ). In Lakhan Pal v. State of M.P. ( AIR 1979 SC 1620 ). In this case it was observed that :- "In prosecution for offence of murder the mere fact that the accused and the deceased (the real brother of the accused) were together in the field prior to the occurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased." (Para 4) In Kansa Behera v. State of Orissa ( AIR 1987 SC 1507 ) it has further been held that :- "So far as the appellant being with the deceased in the evening is concerned, it is not in dispute but is also significant that the instrument of the offence was recovered at the instance of one Jitraj Majni who has been discharged and under these circumstances therefore the evidence having been seen in the evening with the deceased also is of no consequence. It is a settled rule of circumstantial evidence that each one of the circumstances have to be established beyond doubt and all the circumstances put together must lead to the only one inference and that is of the guilt of the accused. As discussed above, the only circumstance which could be said to have been established is of his being with the deceased in the evening and on that circumstance alone the inference of guilt could not be drawn especially in the circumstances of the case where one another accused person from whom an instrument of offence was recovered, who had a grudge against the deceased has been let off." 26. Shri M.M. Qureshi, learned Dy. Govt. Advocate, for the State then placed reliance on AIR 1991 SC 1853 (Khujji @ Surendra Tiwari v. State of M.P.). Shri M.M. Qureshi, learned Dy. Govt. Advocate, for the State then placed reliance on AIR 1991 SC 1853 (Khujji @ Surendra Tiwari v. State of M.P.). But the above cited case is distinguishable on facts because in that case there was a direct evidence while in the present case there is no direct evidence. Hence, it is of no avail. 27. We have considered the facts and circumstances of the case and the material evidence on record. We are of the opinion that the circumstances relied are merely raise suspicion, but the suspicion howsoever true does not take the place of proof. Therefore, the appellant is given benefit of doubt. 28. During the pendency of the appeal, the appellant was released on bail as pointed out earlier. Now he is absconding and his personal bond and bail bond have been forfeited as he did not appear inspite of warrant of arrest being issued several times. Though, the appeal is allowed and the conviction and sentence are set aside as there is no reliable and legal evidence to connect the appellant with the offence under section 302 IPC., and the circumstances relied also do not connect the appellant with the said offence, but the order of recovery of amount shall remain operative. 29. In the result, the appeal is allowed. The conviction and sentence are set aside. The order of recovery of amount shall remain in operation. Let a separate criminal miscellaneous case be registered against the accused-appellant and dealt with in accordance with section 446 Cr.P.C. by the Magistrate concerned.