JUDGMENT B.R. GAVAI, J. The appellants/accused take exception to the judgment and order dated 15/9/2009 passed by the Sessions Judge, Gadchiroli in Sessions Case No.101/2008, thereby convicting them for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. 2. It is the prosecution case that accused no. 1 was having illicit relations with accused no. 2. Accused no. 2 is widow of deceased Sumed. Accused no. 2 and deceased Sumed had begotten three children. On 25/6/2008 the accused were in the house of deceased Sumed between 5 p.m. and 10 p.m. The accused no. 1 and deceased Sumed consumed liquor and had dinner. Soon thereafter, deceased Sumed started vomiting. P.W.2 Motilal, cousin of deceased Sumed, after hearing hue and cry, rushed there and saw kids and accused no. 2 weeping. It was also noticed that deceased Sumed had vomited certain material from stomach. It is the case of the prosecution that complainant Motilal (P.W.2) called for the Doctor, who first refused to come and on second request, he came. On examination, he found Sumed to be dead. P.W.2 Motilal, therefore, lodged first information report with Police Station. 3. During investigation, one steel glass having smell of insecticide as well as remnants of the vomiting were seized. The dead body of Sumed was referred for post mortem. The Doctor opined that the cause of death was respiratory failure due to contents of the stomach. As per report of Chemical Analyser, insecticide Endosulfan was detected in the steel glass, vomited material and bottle of Zandu balm which, according to the prosecution, was discovered on the memorandum under Section 27 of Indian Evidence Act from accused no. 1. After completion of investigation, charge-sheet came to be filed. The learned Sessions Judge charged the accused for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. On conclusion of trial, the learned trial Judge convicted the accused as stated above. Being aggrieved thereby, the appellants have preferred the present criminal appeal. 4. Shri Daga, learned Counsel for the appellants/accused, submits that the finding of the learned trial Judge that incriminating circumstances were proved against the accused and that the circumstances proved formed a complete chain to point the guilt of the accused is not sustainable. Being aggrieved thereby, the appellants have preferred the present criminal appeal. 4. Shri Daga, learned Counsel for the appellants/accused, submits that the finding of the learned trial Judge that incriminating circumstances were proved against the accused and that the circumstances proved formed a complete chain to point the guilt of the accused is not sustainable. It is contended that so far as illicit relations of accused are concerned, the finding of the learned trial Judge on the basis of evidence of P.W.2 Motilal and P.W.7 Meerabai is also not sustainable. It is further submitted that alleged discovery on memorandum under Section 27 of Indian Evidence Act is not proved inasmuch as panch PW 6 Arvind Bankar has not supported the prosecution case in cross-examination. The learned Counsel, therefore, submits that the order of conviction is not sustainable in law. 5. Shri Nayak, learned Additional Public Prosecutor for the respondent, on the contrary, submits that death of Sumed had occurred in the presence of accused persons. It is contended that in view of provisions of Section 106 of Indian Evidence Act, the facts, which were within the special knowledge of the accused, ought to have been disclosed by them. It is submitted that non disclosure of the same by the accused and giving of false explanation is sufficient enough for establishing complicity of accused in the crime in question. It is contended that since Chemical Analyser found Endosulfan test to be positive in respect of glass used for drinking liquor, vomitted material and Zandu balm bottle discovered at the instance of accused no. 1, the finding of conviction recorded by the learned trial Judge cannot be faulted with. 6. Undisputedly, the present case is based on the circumstantial evidence. The Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra { (1984) 4 SCC 116 } : [2009 ALL SCR (O.C.C.) 281] has succinctly culled down the principles governing conviction in the case of circumstantial evidence. It will be appropriate to refer to paragraphs 152, 153 and 154 of the said judgment; which read thus: "152. Before discussing the cases relied upon by the High Court, we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh. Before discussing the cases relied upon by the High Court, we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case: 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 other words, there must be a chain of evidence so far complete as not to 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. 153. A close analysis of this decision would show 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 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 this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra where the following observations were made : (SCC para 19, p.807: SCC (Cri) p. 1047) 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 conclusion. (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. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 7. It can thus clearly be seen that the Apex Court has in unequivocal terms held that the circumstances from which conclusion of guilt is to be drawn should be fully established. The Apex Court goes on to hold that the circumstances concerned "must or should" and not "may be" established. The Apex Court further holds that there is not only a grammatical, but a legal distinction between "may be proved", and "must be or should be proved". The Apex Court has further held that 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. It has further been held that the circumstances should exclude every possible hypothesis except the one to be proved. It has further been held that there must be a chain 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. 8. In the light of the principles, which Their Lordships of Apex Court have held to be panchsheel of the proof of a case based on circumstantial evidence, let us examine the circumstances in the present case on which the learned trial Judge relies. 8. In the light of the principles, which Their Lordships of Apex Court have held to be panchsheel of the proof of a case based on circumstantial evidence, let us examine the circumstances in the present case on which the learned trial Judge relies. The learned trial Court has summed up these circumstances in para (12) of the impugned judgment, which read thus: "i) Illicit relations inter se amongst the accused, ii) Dead body of Sumed was found in the house of Sumed in presence of accused nos. 1 and 2. iii) All had a dinner and except the deceased, all survived. iv) False defence, and v) Non explanation by the accused." It can thus be seen that the main circumstances on which prosecution relies are illicit relations between accused, dead body of Sumed found in the house of Sumed in presence of accused nos. 1 and 2 and all the three having dinner together, except the deceased all survived. 9. Insofar as first circumstance is concerned, the prosecution relies on the evidence of P.W.2 Motilal and P.W.7 Meerabai. Though P.W.2 Motilal states in his examination-in-chief that deceased Sumed suspected about the illicit relations between accused persons, in his cross-examination, he says that "it is correct to say" that Hitesh was treating accused no. 2 Sunita as his sister. P.W.7 Meerabai in her evidence and that too, in the examination in chief has categorically stated that "I do not know about the illicit relations, if any, in between Sunita and Hitesh". In the cross-examination, she further goes on to say that "it is correct to say that I do not know anything about the incident." Apart from that, there are various contradictions in the evidence of P.W.2 Motilal and P.W.7 Meerabai. P.W.2 Motilal states that after hearing hue and cry from the house of Sumed, he went to the house of Sumed, whereas P.W.7 Meerabai states that it is accused no.2, who had come to the house of Motilal and stated that Sumed was not talking. We are of the view that this evidence would not be sufficient to come to the conclusion that there were illicit relations between accused nos. 1 and 2. It is to be noted that though prosecution had cited the children, who were aged 14 and 10, and were present in the house at the time of incident has not examined them as witnesses. 1 and 2. It is to be noted that though prosecution had cited the children, who were aged 14 and 10, and were present in the house at the time of incident has not examined them as witnesses. The children were grown up and were in a position to understand as to what had happened in the house. Had they been examined, they would have been in a position to throw light on the real incident. Withholding of such important witnesses would cast a shadow of doubt on the veracity of the prosecution case. 10. Insofar as other two circumstances, i.e. dead body of Sumed being found in the house of Sumed in the presence of accused nos. 1 and 2 and they having dinner together, except deceased Sumed, all others survived are concerned, the said circumstances would not be sufficient to establish guilt of the accused beyond reasonable doubt. 11. As already discussed hereinabove, it is the prosecution case that deceased Sumed was killed by administering poison. The Apex Court had an occasion also to consider as to what are the circumstances required to be proved by the prosecution in the case of death by poisoning. It will be relevant to refer to para 165 of the judgment of the Apex Court in the case of Sharad Birdhichand Sarda (cited supra) which reads thus: "165. So far as this matter is concerned, in such cases the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased." 12. In the present case, out of aforesaid circumstances, one circumstance that Sumed died of poison is proved by the prosecution by the evidence of Chemical Analyser. However, assuming that the prosecution has also proved that the accused had an opportunity to administer poison to deceased Sumed, from the material on record, we find that an important circumstance that the accused had poison in his possession has not been proved by the prosecution beyond reasonable doubt. We may in this respect refer to evidence of P.W.9 Ashok Ippar, who was Investigation Officer. We may in this respect refer to evidence of P.W.9 Ashok Ippar, who was Investigation Officer. In his evidence, he states that the receipt of Endosulfan, which was allegedly used in the crime in question, was in the name of Antaram Atmaram Bansod. He also states that poison was purchased from one Deepak Phafat. Though he states that as per his say, the bottle of Thiodin of 500 ml. was seized from the house of accused no. 1 and as per document dated 29/6/2008, it was seized from accused no. 1, there is no recovery panchanama of the said poison. He further goes on to admit that he has not recorded statements of Antaram Atmaram Bansod and Deepak Phafat. 13. Insofar as alleged recovery of Zandu balm bottle in which traces of Endosulfan were found, it will have to be seen that panch witness, i.e. P.W.6 Arvind Bankar in his cross-examination has clearly stated that the Police pointed out some papers to him and required him to put signature and accordingly he put signature on them. The said discovery on the memorandum under Section 27 of Indian Evidence Act is thus not proved by the prosecution beyond reasonable doubt. The Apex Court in the case of Sharad Birdhichand Sarda, [2009 ALLSCR (O.C.C.) 281] (cited supra), which is also admittedly a case of death by poison, has observed in para 169, which reads thus: “169. We are, therefore, clearly of the opinion that the facts of the present appeal are covered by the ratio of the aforesaid decisions. At any rate, taking the worst view of the matter on the evidence in this case, two possibilities are clearly open – (1) that it may be a case of suicide, or (2) that it may be a case of murder and both are equally probable, hence, the prosecution case stands disproved." We find that the facts in the present case are almost identical to those in the aforesaid case and the probability of the death being homicidal or suicidal cannot be ruled out. 14. That leads us to the next argument of the learned Additional Public Prosecution to the effect that false defence and non-explanation by the accused can be treated as an incriminating circumstance against them. In this respect, we may refer to para 151 of the same judgment, which reads thus: "151. 14. That leads us to the next argument of the learned Additional Public Prosecution to the effect that false defence and non-explanation by the accused can be treated as an incriminating circumstance against them. In this respect, we may refer to para 151 of the same judgment, which reads thus: "151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court." It can thus clearly be seen that the prosecution has to stand or fall on its own legs. The Apex Court in clear terms has held that only when various links in a chain are in themselves complete, then only a false plea or false defence may be called into aid only to lend assurance to the Court. It has also been held that before using the additional link, it must be proved that all the links in the chain are complete and do not suffer from any infirmity. The Apex Court has further held that it is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea, which is not accepted by a Court. 15. Insofar as submission of the learned Additional Public Prosecution regarding Section 106 of Indian Evidence Act is concerned, by now it is a settled position of law that initial burden for proving the case beyond reasonable doubt is on the prosecution and only thereafter the burden would shift to the accused. 15. Insofar as submission of the learned Additional Public Prosecution regarding Section 106 of Indian Evidence Act is concerned, by now it is a settled position of law that initial burden for proving the case beyond reasonable doubt is on the prosecution and only thereafter the burden would shift to the accused. In that view of the matter, we find that the prosecution has firstly failed to prove the incriminating circumstances beyond reasonable doubt and secondly, failed to prove a complete chain, which points out the guilt of the accused. The criminal appeal, therefore, deserves to be allowed. 16. The criminal appeal is allowed. The impugned judgment and order dated 15/9/2009 passed by the Sessions Judge, Gadchiroli in Sessions Case No.101/2008 is set aside. The appellants are directed to be set at liberty forthwith, if not required in any other case. Appeal allowed.