JUDGMENT 1. - In this criminal appeal, the accused appellant Balwant S/o Poonam Chand is challenging the validity of the judgment dated 10.07.2003 passed by the Additional District and Sessions Judge, Fast Track No. 1, Banswara in Sessions Case No. 21/2003, whereby the learned trial Judge has convicted the accused appellant for committing offence under Section 302 IPC and imposed the sentence upon him of Life Imprisonment alongwith fine of Rs. 10000/- and in default of payment of fine to further undergo one month's rigorous imprisonment. 2. The brief facts of the case are that an FIR was registered at Police Station Anandpuri, District Banswara on 07.07.2002 upon a verbal complaint made by one Nania (P.W.3) under Section 302 IPC against unknown person. 3. In the oral complaint filed at 8 a.m. on 07.07.2002, it is mentioned that the complainant Nania and his younger brother Vaga went for natural call at 6.00 am. on that day and while coming back, his younger brother Vaga informed that in their agricultural field at village Puliawala a dead body of male person is lying. Upon the said information, the complainant Nania alongwith his younger brother Vaga went on the spot, where they saw that a dead body of naked man was lying and there were number of injuries upon his body. Thereafter they tried to ascertain the identity of the said person, but did not find the identity of the said person, at that time so many persons of the locality came on the spot and complainant Nania went to the Anandpuri police station and gave information regarding the incident, upon which FIR was registered against unknown person. 4. After registering the case against unknown person, the Investigating Officer commenced investigation. 4. After registering the case against unknown person, the Investigating Officer commenced investigation. During course of the investigation, police prepared site plan and took the body of the deceased to the hospital for postmortem, thereafter on the basis of evidence collected in the investigation, arrested the accused appellant and recovered the knife and shirt as per the information of the accused and upon completion of the investigation, filed challan against the accused appellant under Section 302 IPC on the basis of evidence of last seen and recovery of weapon and cloths before the court of Additional Chief Judicial Magistrate (Fast Track), Bagidaura, District Banswara, from where the case was committed to the court of District and Sessions Judge, Banswara and later on for the purpose of trial, under the orders of the District and Sessions Judge, Banswara, the case was transferred to the court of Additional District and Sessions Judge, Fast Track No. 1, Banswara. 5. The trial court after framing the charge under Section 302 IPC proceeded to conduct the trial. First of all opportunity to lead the evidence was given to the prosecution and the prosecution produced as many as 23 witnesses to prove the charge against the accused appellant, so also during recording evidence in the trial, 25 documents were exhibited from the prosecution side. Thereafter further statement of the accused under Section 313 CrPC were recorded by the trial court. In support of the defence, one document Ex.D.1 agreement was exhibited from the side of defence. 6. Learned trial court after providing the opportunity to adduce the evidence, finally heard the matter and vide impugned judgment dated 10.07.2003, convicted the accused appellant for committing offence under Section 302 IPC and passed sentence against him for Life Imprisonment with a fine of Rs. 10000/- and in default of payment of fine, to further undergo one month's rigorous imprisonment. The aforesaid judgment is under challenge in this case. 7. Learned counsel for the appellant Mr. 10000/- and in default of payment of fine, to further undergo one month's rigorous imprisonment. The aforesaid judgment is under challenge in this case. 7. Learned counsel for the appellant Mr. Mridul Jain is challenging the validity of the judgment on the following grounds:- (a) It is submitted that prosecution has failed to prove its case beyond reasonable doubt because the challan was filed on the basis of last seen and recovery of blood stained knife and cloths from the accused appellant, but during the course of trial, all the prosecution witnesses of last seen turned hostile before the court and did not support the prosecution story. Secondly, the recovery of blood stained knife and blood stained shirt of the accused has not been proved by the prosecution beyond reasonable doubt because the witnesses of recovery, P.W.10 Nathulal and P.W.11 Nanuram, both are cousin brothers of the deceased Dinesh as such they are interested witnesses of recovery and no other independent witness has been examined from the prosecution side to prove the prosecution story, therefore, the impugned judgment deserves to be set aside and the accused appellant is entitled for acquittal. (b) With regard to the evidence led by the prosecution to prove the alleged motive, it is vehemently argued by the learned counsel for the appellant that the evidence of motive is totally baseless because no prudent man can accept the prosecution story with regard to motive narrated by the prosecution witnesses. As per the prosecution case, there was enmity in between the accused appellant Balwant and the deceased Dinesh because earlier the accused appellant Balwant was engaged for the purpose of marriage with the sister in law of the deceased Dinesh, but the said engagement was broken, therefore, there was enmity between the accused appellant and the deceased. It is very strange how such type of fact can be termed as 'motive' to murder a person, even if the prosecution story for motive is accepted, then also it cannot accepted that motive for murder was that the engagement of sister-in-law of the deceased with the accused appellant was broken. It is very strange how such type of fact can be termed as 'motive' to murder a person, even if the prosecution story for motive is accepted, then also it cannot accepted that motive for murder was that the engagement of sister-in-law of the deceased with the accused appellant was broken. As per the learned counsel for the appellant, a totally false and dis-believable story of motive has been fabricated by the prosecution to prove that there was motive to commit offence of murder by the accused appellant Balwant, therefore, the story of motive is required to be discredited because it is not supported by any of the independent prosecution witness; the fact of engagement of the accused appellant with the sister-in-law of the deceased is also not proved by leading any witness of in-laws house of the deceased, hence, the judgment under challenge deserves to be quashed and the accused appellant is entitled for acquittal. (c) The learned counsel for the appellant vehemently argued that the so-called recovery of knife at the instance of the accused appellant does not connect the appellant with the crime of murder because as per the details of the injuries mentioned in the postmortem report, all the injuries were found to be incised wound, whereas from knife stabbed wound can be caused and further as per the recovery memo of knife (Ex.P.13), there was blood upon the handle (Hattha) of knife, but in the statement of the prosecution witnesses of recovery of knife, i.e. P.W.10 Nathulal and P.W.11 Nanuram, the whole knife was stated to be stained with blood, therefore, the statement made before the court by the prosecution witnesses of recovery does not give correct version before the court because they are admitting that vide Ex.P.13 the knife was recovered, but as per Ex.P.13, blood was not found upon the sharp side of the knife and blood was found upon the handle of the knife. This whole prosecution story goes away even if in the FSL report is accepted. The learned counsel for the appellant vehemently argued that the recovery of knife is concocted one because it has been prepared in front of two interested witnesses, namely, P.W.10 Nathulal and P.W.11 Nanuram, both are cousin brothers of the deceased and as per their statement before the court, recovery memos were prepared at the police station. The learned counsel for the appellant vehemently argued that the recovery of knife is concocted one because it has been prepared in front of two interested witnesses, namely, P.W.10 Nathulal and P.W.11 Nanuram, both are cousin brothers of the deceased and as per their statement before the court, recovery memos were prepared at the police station. The medical evidence is also not corroborating the prosecution case that the injuries can be caused only by the knife which was recovered at the instance of the accused appellant; hence, the finding of the learned trial court which is based upon the recovery of knife is not sustainable under the law. With regard to the recovery of blood stained shirt of the accused is concerned, it is stated that the said shirt was recovered in the presence of P.W.10 Nathulal and P.W.11 Nanuram, both cousin brothers of the deceased who are interested witnesses and recovery is also not made from the exclusive possession of the accused, but from an open place vide Ex.P.12. Learned counsel for the appellant while inviting attention of this court towards Ex.P.12 argued that as per the said recovery memo, shirt was recovered at open place, that too after five days of occurrence on 11.07.2002. In this view of the matter, it cannot be said that the prosecution has proved the recovery of shirt beyond reasonable doubt, therefore, the judgment impugned deserves to be quashed and set aside. (d) The learned counsel for the appellant further argued that as per the basic principle of criminal law, it is duty of the prosecution to prove its case beyond reasonable doubt. Here in this case, there is no eye-witness of the alleged incident, but the challan was filed on the basis of evidence of last seen of three prosecution witnesses, namely, P.W.16 Lalsingh, P.W.17 Lilaram and P.W.18 Chagan. All these independent prosecution witnesses of last seen turned hostile before the court, therefore, it is obvious that there is no corroborative and trustworthy evidence on record to prove the prosecution case which is based upon such last seen together with the deceased, therefore, on the basis of such type of baseless evidence the trial court has convicted the accused appellant which is not sustainable under the law and on this ground alone, the impugned judgment deserves to be quashed and set aside. 8. 8. Per contra, learned Public Prosecutor vehemently argued that although in this case all the prosecution witnesses of last seen turned hostile and did not support the prosecution story, but there is other ample circumstantial evidence on record to prove that the accused appellant has committed an offence under Section 302 IPC. Learned Public Prosecutor while inviting attention towards the fact that the prosecution has proved the fact that blood stained knife and shirt of accused appellant were recovered at the instance of the accused appellant and the witnesses of recovery have supported the recovery of knife and shirt, therefore, obviously the learned trial court has rightly relied upon the testimony of the prosecution witnesses P.W.10 Nathulal and P.W.11 Nanuram who have corroborated the recovery of knife and cloths at the instance of the accused appellant. Further both these articles were sent to the FSL and as per the FSL report, upon examination of both these articles with the cloths of the deceased, the blood group was found to be same, therefore, on the basis of valuable evidence of recovery of knife and shirt, the prosecution has proved its case beyond reasonable doubt and the learned trial court has rightly relied upon the evidence led by the prosecution for convicting the accused appellant for the offence under Section 302 IPC. 9. With regard to the motive, it is submitted by the learned Public Prosecutor that obviously by ample evidence it has been proved by the prosecution that there was enmity in between the accused appellant Balwant and the deceased Dinesh because earlier the accused Balwant was engaged for marriage with the sister-in-law of the deceased Dinesh, but that engagement was broken and due to said reason there was enmity in between them and as per the statement of P.W.9 Smt. Savita, mother of the deceased, 10 days before the incident, the accused appellant came to the residence of the deceased and gave threatening. In this view of the matter, when the motive is established by the prosecution and the recovery of blood stained knife and cloths has been proved before the court by the prosecution, then the trial court has rightly found that the prosecution has proved its case beyond reasonable doubt on the basis of circumstantial evidence, which is relied upon by the learned trial court, therefore, there is no force in this appeal and all the grounds taken by the accused appellant in this appeal deserves to be rejected and the judgment rendered by the trial court deserves to be upheld. 10. We have considered the rival submissions made by learned counsel of the parties and perused the entire record. Admittedly, there is no eye-witness of incident and the FIR was filed against unknown person by P.W.3 Nania and after investigation, the police filed challan against the accused appellant on the basis of circumstantial evidence of last seen, recovery of blood stained knife and blood stained cloths and on the basis of evidence of motive. In this case, the following questions emerge for our consideration to assess the validity of the judgment of the trial court under challenge whereby the accused appellant was convicted for committing offence under Section 302 IPC:- (i) Whether the prosecution has proved its case beyond reasonable doubt on the basis of circumstantial evidence against the accused appellant and whether the learned trial court has rightly relied upon the testimony of the prosecution witnesses of circumstantial evidence and rightly arrived at the finding that the accused appellant has committed offence under Section 302 IPC. (ii) Whether on the basis evidence on record, the prosecution has proved the recovery of knife and shirt of the accused beyond reasonable doubt. (iii) Whether the injuries found upon the body of the deceased are corroborated with the evidence of recovery. (ii) Whether on the basis evidence on record, the prosecution has proved the recovery of knife and shirt of the accused beyond reasonable doubt. (iii) Whether the injuries found upon the body of the deceased are corroborated with the evidence of recovery. (i) Whether the prosecution has proved its case beyond reasonable doubt on the basis of circumstantial evidence against the accused appellant and whether the learned trial court has rightly relied upon the testimony of the prosecution witnesses of circumstantial evidence and rightly arrived at the finding that the accused appellant has committed offence under Section 302 IPC:- Admittedly, P.W.16 Lalsingh, P.W.17 Lilaram and P.W.18 Chagan were witnesses of last seen, but upon perusal of their statement, it is revealed that all these three witnesses of last seen turned hostile before the court, but the learned trial court in the discussion has relied upon the testimony of these witnesses. In our opinion, the learned trial court has committed a serious error while relying upon the testimony of hostile witnesses because they are not corroborating the prosecution story. P.W.16 Lalsingh has specifically stated in his examination-in- chief that:- eSa fnus'k oknh dks ugha tkurk gwaA cyoar dks Hkh ugha tkurk gwaA fnus'k dh gR;k fdlus dh eq>s irk ughaA 11. P.W.17 Lilaram in his statement before the trial court has stated that:- " eSa fnukad 6-7-2002 dks eksgEen HkkbZ ljiap dh xkM+h ucaj thts 17 MCY;w 3567 ij M~kboj FkkA ml fnu lsYVsDl okyksa us xkM+h :dokbZ FkhA eSa xkM+h ysdj jokuk gks x;kA esjh xkM+h yDtjh FkhA [kyklh Nxu FkkA eq>s irk ugha ds esjs xkM+h ls dksbZ ogka mrj ;k ughaA vkuaniqjh ls ,d eksM+ ds ogka xkM+h :dokbZ FkhA " 12. P.W.18 Chagan has stated in his statement before the trial court that:- " eSa fnukad 6-7-2002 dks ljiap eksgEen HkkbZ dh xkM+h ij [kyklh FkkA ml fnu vkuaniqjh ls djhc nks fd0eh0 ij lsYVsDl okyksa us xkM+h :dokbZ Fkh rFkk M~kbZoj ls ckr dh FkhA ogka ls jokuk gks x;s FksA eq>s ugha irk fd gekjh xkM+h ls dksbZ mrjk gksA " 13. On the basis of the testimony of the above witnesses, it can be said that the prosecution has not proved any case for commission of offence under Section 302 IPC by the accused appellant on the basis of evidence of last seen of the above prosecution witnesses, therefore, the first ground taken by the prosecution has wrongly been accepted by the trial court because the evidence of these witnesses cannot be treated to be reliable and if the testimony is not reliable, then obviously it can be said that the prosecution has not proved its case beyond reasonable doubt for the purpose of connecting the accused appellant with the crime by leading evidence of last seen. One other witness Babla (P.W.7), father of the deceased, has not stated a single word before the court that there was any enmity in between the accused appellant and the deceased. In his cross-examination, this witness has stated that there was enmity in between him and the father of the accused appellant Balwant, therefore, he is suspecting that Balwant has killed his son Dinesh. Further he has stated in the cross-examination that:- " ;g lgh gS fd gekjs cyoar ds firk ls 18&20 lky igys Hkh >xM+k gqvk FkkA ;g lgh gS ds gekjs mij Hkh eqdnek pyk FkkA nksuksa ikVhZ;ksa ij eqdnesa pys FksA gekjs vkil esa nq'euh pyh vk jgh gS bl dkj.k ls esa dg jgk gwa fd cyoar us fnus'k dks ekjk gksxkA ;g lgh gS ds eSaus fnus'k o cyoar dks vkeus lkeus >xM+rs gq, ugha ns[kkA ;s yksx izse ls jgrs FksA " 14. Meaning thereby the father of the deceased is also not corroborating the prosecution case, therefore, the statement of P.W.7 Babla, father of the deceased, is based on suspicion; hence, it is not safe to arrive at the finding that the prosecution has proved its case beyond reasonable doubt. P.W.7, father of the deceased, himself was under suspicion that the accused might have caused death of his son. Likewise, P.W.6 Mithun, brother of the deceased, turned hostile before the court. It is stated by him that he has not seen any incident, although he has stated that earlier Balwant got engaged with the sister-in-law of the deceased Dinesh. P.W.7, father of the deceased, himself was under suspicion that the accused might have caused death of his son. Likewise, P.W.6 Mithun, brother of the deceased, turned hostile before the court. It is stated by him that he has not seen any incident, although he has stated that earlier Balwant got engaged with the sister-in-law of the deceased Dinesh. In his cross-examination, it is specifically stated by him that:- " ;g xyr gS ds eSaus iqfyl c;ku esa ;g fy[kk;k gks fd fnus'k dks cyoUr o /kuflag us feydj ekj fn;k gksA iqfyl c;ku izn'kZ ih0 10 dk , ls ch fgLlk lqudj xokg us dgk fd eSus ;g c;ku iqfyl dks ugha fn;kA ;g ckr xyr gSa ds eSa eqfYte ls feydj mls cpkus ds fy;s vkt >wBs c;ku ns jgk gwaA " 15. Meaning thereby that P.W.6 Mithun, brother of the deceased Dinesh, is also not making any specific allegation against the accused appellant that he has committed murder of his brother. 16. P.W.8 Smt. Kailash, wife of the deceased stated that they were suspecting that no other than the accused appellant Balwant can kill her husband. She has specifically stated in her examination-in-chief that:- " gesa ;g 'kd Fkk fd cyoar ds vykok dksbZ ugha ekj ldrk gSA " 17. In the cross-examination, it is stated by P.W.8 wife of the deceased that she left the house with one person Ramna and lived with him for eight days and she had gone with him as per her own will and there was quarrel in between her husband and Ramna for the above reason. The wife of the deceased P.W.8 Smt. Kailash further stated that nobody has informed her that Balwant has killed her husband nor she has seen with her eyes that the accused appellant Balwant has killed her husband and they are only suspecting that Balwant might have killed her husband. The above discussion clearly indicates that the prosecution has failed to prove the fact of last seen, therefore, the judgment under challenge is not sustainable in law. The above discussion clearly indicates that the prosecution has failed to prove the fact of last seen, therefore, the judgment under challenge is not sustainable in law. (ii) Whether on the basis evidence on record, the prosecution has proved the recovery of knife and shirt of the accused beyond reasonable doubt:- In this case, upon appreciation of the evidence of recovery of knife and shirt of the accused appellant, it emerges from the evidence that as per the information given under Section 27 of the Evidence Act, the accused appellant gave information for recovery of the knife vide Ex.P.17 and in pursuance of the said information, recovery of knife was made vide Ex.P.13. Upon perusal of the Ex.P.13. Upon perusal of Ex.P.13, the recovery memo, it is revealed that the said knife was recovered in the presence of two witnesses, namely, P.W.10 Nathulal and P.w.11 Nanuram. Admittedly, both these witnesses are cousin brothers of the deceased and their signatures are appearing upon the recovery memo (Ex.P.13). In the Ex.P.13, which is said to be proved by the prosecution, the assertion has been made that the said knife was recovered in the house of the Rupali, grandmother of the accused appellant. In the said recovery memo it is nowhere stated that from which place of the house the knife alleged to be used in the offence was recovered. Meaning thereby there is no independent witness to prove the recovery because the two prosecution witnesses, P.W.10 and P.W.11, the cousin brothers of the deceased Dinesh, were brought as evidence for the purpose of recovery of so-called knife and shirt. In our opinion, there is substance in the argument of the learned counsel for the appellant that the recovery of knife has been made in front of interested witnesses P.W.10 Nathulal and P.W.11 Nanuram, both cousin brothers of the deceased Dinesh, therefore, the so-called recovery made before the interested witnesses creates suspicion that the prosecution case is based upon concocted story which has not been proved beyond reasonable doubt. If the prosecution case is based on circumstantial evidence, then it was to be proved by transparent evidence and should not be under any suspicion, but in this case, upon perusal of the statement of P.W.10 Nathulal and P.W.11 Nanuram, witnesses of recovery of knife and shirt, it emerges that both these witnesses are close relatives of the deceased and the entire case is based upon suspicion that the incident took place due to petty enmity that engagement of the accused appellant with the sister-in-law of the deceased Dinesh was broken which is not sustainable in the eye of law. In the statement of P.W.10 Nathulal, it is stated by him that the police has wrongly mentioned in Ex.P.13 that blood was appearing upon the handle of the knife, but in fact, the blood was appearing upon the sharp side of the knife. The following statement has been given by the said witness:- " pkdw iwjk [kwu ls Hkhxk gqvk FkkA dkVus dk pkdw /kkjnkj fgLlk [kwu ls fHkxk gqvk FkkA iqfyl us izn'kZ ih03 esa gRFks ij [kwu gksuk crk;k og xyr gS cfYd [kwu Qy ij yxk gqvk FkkA fQj ge yksxksa dks Fkkus ij yk;s vkSj Fkkus ij gekjs QnksZa ij nLr[kr djk;sA " 18. Meaning thereby that all the recovery memos were prepared at the police station as per this witness and he himself admitted before the court that in the recovery memo, correct facts are not stated. 19. With regard to evidence of P.W.11 Nanuram, the second witness of recovery, who is cousin brother of the deceased Dinesh, it is stated by him that knife was recovered, but the recovery memo was prepared at the police station and his signatures were also obtained at the police station. It is specifically stated by him that:- " pkdw iwjk [kwu ls yFkiFk FkkA pkdw /kkjnkj fgLls esa iwjk [kwu yxk gqvk FkkA gRFks ij [kwu yxk gqvk ugha FkkA geus rks iwjk pkdw [kwu ls fHkxk gqvk ns[kk FkkA iqfyl us dsoy gRFks ij [kwu D;ksa fy[kk irk ughaA " 20. It is specifically stated by him that:- " pkdw iwjk [kwu ls yFkiFk FkkA pkdw /kkjnkj fgLls esa iwjk [kwu yxk gqvk FkkA gRFks ij [kwu yxk gqvk ugha FkkA geus rks iwjk pkdw [kwu ls fHkxk gqvk ns[kk FkkA iqfyl us dsoy gRFks ij [kwu D;ksa fy[kk irk ughaA " 20. Meaning thereby this witness is also admitting that the recovery memo was prepared in the police station and his signatures were also obtained in the police station, whereas the Investigating Officer P.W.14 Roop Shankar has stated in his cross-examination that it is wrong to say that all the proceedings were undertaken while sitting in the police station. He has also admitted that the shirt was recovered from an open place where so many persons are coming and going. 21. In this view of the matter, on the one side, the Investigating Officer is making statement before the court that recovery memos were not prepared at the police station and on the contrary, the witnesses of recovery, P.W.10 Nathulal and P.W.11 Nanuram specifically stated in their statement that recovery memos were prepared in the police station and their signatures were obtained at the police station. In this view of the matter, the recovery of knife and shirt becomes doubtful, therefore, on the basis of doubtful recovery, it cannot be said that the prosecution has proved its case beyond reasonable doubt, moreso it emerges from the evidence of the prosecution that first of all challan was filed on the basis of evidence of those persons who themselves were under suspicion that the accused appellant has committed offence and further on the basis of so called recovery which is not proved beyond reasonable doubt before this court, therefore, if the recovery itself becomes doubtful, then the report of FSL becomes meaningless. In this view of the matter, it is abundantly clear that the prosecution has failed to prove its case beyond reasonable doubt with regard to recovery of knife and shirt upon which the accused appellant was convicted. In this view of the matter, it is abundantly clear that the prosecution has failed to prove its case beyond reasonable doubt with regard to recovery of knife and shirt upon which the accused appellant was convicted. (iii) Whether the injuries found upon the body of the deceased are corroborated with the evidence of recovery:- Admittedly, the following injuries were found upon the body of the deceased which are mentioned in the postmortem report Ex.P.16:- 4 x ½ cm incised wound on back 1 x ½ cm incised wound on back 2 x ½ cm incised wound on buttock 1 x 5 cm incised wound on upper back 6 x 2 cm incised wound on front of neck 7 x 3 cm incised wound on left back 6 x 2 cm. incised wound on left shoulder 22. Admittedly, the above incised wounds were found upon the body of the deceased Dinesh and as per prosecution case, these injuries were caused by knife which is alleged to be recovered from the accused appellant. In our opinion, the prosecution case cannot be treated to be proved because by knife stabbed and incised wounds can be caused, but in this case only incised wounds have been found upon the body of the deceased Dinesh and as per the postmortem report, all the injuries are incised wounds and there is no stabbed wound, therefore, again this fact creates doubt because as per the medical jurisprudence, stabbed and incised wounds can be caused by knife, but here in this case there is no stabbed injury found upon the body of the deceased and the recovery is also not proved by leading reliable and cogent evidence before the court. For proving the postmortem report, the statement of Dr. S.K. Dhariwal (P.W.15) were recorded, who has performed the postmortem of the deceased Dinesh on 07.07.2002 and found that there were 7 injuries upon the body of the deceased and further after 4 days of incident, on 11.07.2002, he has examined the body of the accused appellant also, upon which following 4 injuries were found:- Incised wound 2 cm x 1/10 cm on right palm Abrasion 1 cm x ½ cm on left hand Abrasion 1 cm x 1/10 cm on front of neck Abrasion ½ cm x ¼ cm on right shoulder 23. In the cross-examination of P.W.15 Dr. In the cross-examination of P.W.15 Dr. S.K. Dhariwal, a specific question was put from the side of the accused appellant that duration of the injuries mentioned in Ex.P.20 is not given therein. Upon this question, it is replied that the contention is correct that duration of the injuries upon the body of the accused is not mentioned, thus, again a doubt is created whether the prosecution has proved its case beyond reasonable doubt or not. In this view of the matter, as per the medical evidence and evidence of recovery of weapon and use of weapon, it cannot be said that the prosecution has proved its case beyond reasonable doubt by way of leading trustworthy and corroborative other evidence and medical evidence. 24. The above discussion clearly reveals that the prosecution has not produced cogent, reliable and trustworthy evidence and has failed to prove its case beyond reasonable doubt, therefore, the finding arrived at by the trial court with regard to the fact that the prosecution has proved its case beyond reasonable doubt is not sustainable. We have re-appreciated the evidence on record and on the basis of above discussion, we are of the opinion that the prosecution has not proved its case beyond reasonable doubt. 25. The Hon'ble Supreme Court in the case of Jaharlal Das v. State of Orissa reported in AIR 1991 SC 1388 has held that in criminal trial, for convicting any accused on the basis of circumstantial evidence, the prosecution is required to fulfill the following three conditions, viz., (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilty the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 26. This court in the case of Thana Ram v. State of Rajasthan reported in CJ 2005(2)(Raj.)Cr. 26. This court in the case of Thana Ram v. State of Rajasthan reported in CJ 2005(2)(Raj.)Cr. 844 has held that if the eye-witnesses are declared hostile and do not support the prosecution case, holding the accused guilty on the basis of threat given by him to the deceased is not acceptable as it is a weak circumstance and not sufficient for conviction. Where most of the witnesses have only expressed doubt, there the conviction cannot be said to be justified because the doubt cannot take place of proof. In this case also, the case of the prosecution is based on suspicion which is evident from the statements of the prosecution witnesses. 27. Upon the aforesaid discussion so made while appreciating the evidence on record, it is abundantly clear that the prosecution has failed to prove its case beyond reasonable doubt and the circumstantial evidence which is placed on record for the purpose of last seen turned hostile, the so-called witnesses of recovery, P.W.10 Nathulal and P.W.11 Nanuram, the cousin brothers of the deceased Dinesh, specifically stated that the recovery memos were prepared in the police station and they put their signatures in the police station, whereas the Investigating Officer stated that he has not prepared any document while sitting in the police station, therefore, the so-called recovery of knife and shirt of the accused becomes doubtful and the conviction based upon so-called doubtful circumstantial evidence of this case is not sustainable. It is settled principle of law that in the cases depending largely upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The court must satisfy itself that the various circumstance in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. 28. In this view of the matter, on the basis of the discussion made above, this criminal appeal filed by the accused appellant Balwant S/o Poonam Chand is allowed. 28. In this view of the matter, on the basis of the discussion made above, this criminal appeal filed by the accused appellant Balwant S/o Poonam Chand is allowed. The conviction and sentence awarded vide the impugned judgment and order dated 10.07.2003 passed by the Additional District and Sessions Judge, Fast Track No. 1, Banswara, in Sessions Case No. 21/2003 against the accused appellant is hereby set aside and he is acquitted from the charge levelled against him. The accused appellant is in jail, therefore, he shall be released forthwith if not required in any other case.Appeal allowed. *******