Judgment : B.R. Gavai, J. The appellant-accused has approached this Court being aggrieved by the judgment and order dated 4th/5th June, 2010, passed by the learned Additional Sessions Judge (2), South Goa, at Margao in Sessions Case No.8/2008, thereby convicting the appellant-accused for the offence punishable under Section 302 of the Indian Penal Code (IPC), and sentencing him to undergo Life Imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo Rigorous Imprisonment for a further period of two months. 2. The prosecution case, in brief, is as under: The accused and the deceased were residing in the same locality. It is the prosecution case that the accused, deceased and their friends celebrated a Christmas party on 25th December, 2007 and when the party was going on, the accused and the deceased left the party to consume some liquor in the bar of one Chandrakant alias Raghunath PW.9; that they consumed liquor at the bar and thereafter left the bar. The dead body of the deceased was found on the railway track at Verna. There was cut injury on the back side of the neck and a stab injury on the abdomen of the deceased. The deceased was identified as one Pal. In the course of investigation, the weapon of assault and other property were recovered at the instance of the accused. On the basis of the circumstance that the accused and the deceased were last seen together and the weapon of assault being recovered at the instance of the accused, the crime came to be registered against the present appellant. After completion of the investigation, charge-sheet came to be filed under Sections 302 and 201 of the Indian Penal Code. The charge-sheet initially came to be filed in the Court of the Judicial Magistrate, First Class, at Vasco-da-Gama, Goa. Since the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court, at Margao. The accused pleaded not guilty and claimed to be tried. The prosecution examined various witnesses in support of its case. At the conclusion of the trial, the learned trial Judge passed an order of conviction and sentenced as aforesaid. Being aggrieved thereby, the present appeal. 3. Shri Parsekar, learned Counsel appearing on behalf of the appellant submits that the learned trial Judge has grossly erred in convicting the appellant. The prosecution examined various witnesses in support of its case. At the conclusion of the trial, the learned trial Judge passed an order of conviction and sentenced as aforesaid. Being aggrieved thereby, the present appeal. 3. Shri Parsekar, learned Counsel appearing on behalf of the appellant submits that the learned trial Judge has grossly erred in convicting the appellant. The learned Counsel submits that the prosecution has utterly failed to prove the case beyond reasonable doubt. The learned Counsel submits that even the witnesses who have been examined by the prosecution in support of the circumstance regarding last seen together are concerned, their evidence is not reliable and trustworthy. The learned Counsel further submits that in so far as other circumstance regarding recovery of the alleged weapon is concerned, the recovery is from an open place, accessible to one and all, and as such, cannot be said to have been proved beyond reasonable doubt. The learned Counsel, therefore, submits that the prosecution has utterly failed to prove the case and, as such, the order of conviction is not sustainable. 4. As against this, Shri Rivonkar, learned Public Prosecutor, submits that the prosecution has proved the case beyond all reasonable doubts. The learned Public Prosecutor submits that the prosecution has proved the circumstance “the accused and the deceased being last seen together immediately before the dead body of the deceased was found” by leading evidence of PW.6 Ajay Kerketa, PW.8 Bimal Bage, PW.9 Raghunath Naik, and Pw. 11 Babulal Bage. The learned Public Prosecutor submits that in so far as recovery of weapon of assault is concerned, the same has been duly proved by the prosecution by evidence of PW.14 Pralhad Parsekar who is the panch witness and PW.15 Nolasco Raposo who is the Investigating Officer. The learned Public Prosecutor submits that this circumstance, along with other circumstance regarding the blood stains being found on the knife and some witnesses deposing that the accused had come in the night and false explanation of the accused in his statement under Section 313 of Cr.P.C., prove the case of the prosecution beyond all reasonable doubts. He, therefore, submits that the appeal deserves no interference and is liable to be dismissed. 5. With the assistance of the learned Counsel appearing on behalf of the appellant and the learned Public Prosecutor, we have scrutinized the entire evidence on record. 6. He, therefore, submits that the appeal deserves no interference and is liable to be dismissed. 5. With the assistance of the learned Counsel appearing on behalf of the appellant and the learned Public Prosecutor, we have scrutinized the entire evidence on record. 6. In so far as last seen theory is concerned, the prosecution relies on the evidence of PW.6 Ajay Kerketa, PW.8 Bimal Bage, PW.9 Raghunath Naik, and Pw. 11 Babulal Bage. 7. PW.6 Ajay Kerketa in his evidence states that on 24th December, they had celebrated a Christmas party in the property of one Pedro in which one Samsun and his wife, Baburao and his son Ramesh, and his wife, were present. He states that in the said party, the deceased was present and the accused was not present. He states that on 25th December, again they made arrangement for a party at night. However, their landlord asked them not to celebrate the party in his property. They, therefore, went to a place where loading and unloading was done. The accused and the deceased also joined them on 25th December. Both of them went to drink liquor in the bar of Chandrakant. He states that they had left at about 8.00 p.m. One Bhima had also joined them. Bhima returned after sometime with drink for the said witness. The deceased and the accused remained in the bar. He states that both of them did not join them later. 8. PW.8 Bimal Bage also deposes regarding the party of 24th and 25th December. He narrates about the accused and the deceased joining the party and after sometime telling Ajay that he would have some drink and come back. He states that the accused and the deceased went to the bar of Chandrakant. He states that he had followed them to the bar. After sometime, the accused poured some liquor in a plastic bottle mixed with Coca Cola and requested him to give it to Ajay. He states that thereafter he proceeded to the venue of the party. He states that after the party, Pal did not come home. He states that he was sleeping outside the house of Samsun and at around 11 p.m. the accused came back. He states that his father woke up. He further states that Samsun asked him from where he had come at night. The accused was totally wet and was in underwear. He states that he was sleeping outside the house of Samsun and at around 11 p.m. the accused came back. He states that his father woke up. He further states that Samsun asked him from where he had come at night. The accused was totally wet and was in underwear. He further states that his father asked the accused from where he had come after a bath and he told him that as he was walking, he fell in a nallah. 9. PW.9 Raghunath Naik deposes that a part of his house is converted by him into a hotel. He states that the accused used to visit his hotel either alone or sometime with the deceased, for tea. He states that on request, he used to purchase and supply liquor to his customers. He states that he had last seen the accused sometime on 24th / 25th December at 9.00 p.m. He states that on 25th December, the accused and the deceased approached him in the hotel and demanded liquor. He states that the bill was paid by the accused. He further states that the accused also purchased liquor mixed it with cola and handed over to one boy by name Bimal. He further states that Bimal immediately left with the said liquor. He states that two minutes thereafter, the accused and the deceased also left his hotel and thereafter, he never saw the deceased. 10. The next witness on the circumstance 'last seen together' is PW.11 Babulal Bage. His evidence is also identical with that of PW.8 Bimal who is his son. Though all four witnesses have been thoroughly cross examined, however, their evidence regarding the deceased and the accused being last seen together on the night of 25th December, has gone unshattered. We, therefore, find that the prosecution has been able to prove beyond reasonable doubt that the accused and the deceased were last seen together on the night of 25th December, 2013. 11. In so far as the next circumstance regarding recovery of the weapon alleged to have been used by the accused in the crime in question is concerned, the prosecution relies on the evidence of PW.14 Pralhad Parsekar who is the panch witness and PW.15 Nolasco Raposo, the investigating officer. The evidence of these two witnesses would reveal that the accused was arrested on 5th January, 2008. The evidence of these two witnesses would reveal that the accused was arrested on 5th January, 2008. On 7th January, 2008, he confessed his involvement in the case and informed that he would take them to the spot to show the spot where he had committed murder of the deceased on 25th December, and thereafter dumped his dead boy on Konkan Railway track. It is the prosecution case that he had made the following disclosure under Section 27 of the Evidence Act. “I had thrown my shirt and had thrown the knife in the bushes in the field. I had also thrown my pant after taking both in a nullah. I am of my own willingness shown in you the pant, shirt and knife.” It is the prosecution case that on the panchanama being executed, the Investigating Officer and the panch witnesses went to the railway track at Verna. They got down from the jeep and the accused led them on foot on the railway track. As per PW.15, after walking a distance of about 300 metres, the accused stopped and pointed out to one spot near the right side of the railway track and informed them that that was the place where he first assaulted the deceased with a blow on the nose and then pinned him down. PW.15 states that on minute observation, they observed some dried blood fallen on the earth and dried leaves. A sample of dried blood was taken and inserted in a plastic bag. A sample of earth was also taken. It is the prosecution case that the accused also pointed out a pair of slippers and stated that it belonged to the deceased. According to these witnesses, the accused further pointed out to a shirt which was at a distance of 6 metres from the place of incident and informed that this was the same shirt which he had removed from the body after murdering the deceased. According to the witnesses, after about a distance of about 250 metres from the spot of murder along the railway track, the accused went into bushes, searched and brought a knife. The knife had a black handle and its blade was sharp on one side and blunt on the other side. 12. According to the witnesses, after about a distance of about 250 metres from the spot of murder along the railway track, the accused went into bushes, searched and brought a knife. The knife had a black handle and its blade was sharp on one side and blunt on the other side. 12. Taking evidence of these two witnesses at its face value, it can be seen that even according to these two witnesses, the recovery was from a place open and accessible to one and all. 13. The Apex Court in the case of Abdul Sattar vs. Union Territory, Chandigarh, AIR 198 SC 1438, had an occasion to consider recovery of a pant and shirt of the deceased after a period of three weeks from the date of occurrence on the basis of a statement made by the accused under Section 27 of the Indian Evidence Act. The Apex Court in para 4 observed thus: “4. … As indicated by the appellant, the pant and the shirt had been removed from the body and hidden there. Recovery is said to have been made more than three weeks after the occurrence. Admittedly, the place from where these two things are said to have been recovered was a public place and appears to have been very much accessible to people of the locality. It is difficult to believe that these two had been so concealed that they were not noticed and were available to be collected from the very place such a long time after.” Having observed thus, the Apex Court disbelieved the recovery. 14. Again in the case of Salim Akhtar alias Mota vs. State of Uttar Pradesh, AIR 2003 SC 4076, the Apex Court had an occasion to consider recovery of pistol and ammunition made from an open place which was accessible to all and every one. The Apex Court in para 11 observed thus: “11. The other feature of the case is that the recovery was made from an open place which was accessible to all and everyone. P.W.1 N.P. Rai, has clearly admitted in his cross-examination that the recovery of the polythene bag was made from an open 'Gher' in a lonely place, where anyone could easily come.” Having observed this, the Apex Court disbelieved the said recovery and set aside the order of conviction. 15. P.W.1 N.P. Rai, has clearly admitted in his cross-examination that the recovery of the polythene bag was made from an open 'Gher' in a lonely place, where anyone could easily come.” Having observed this, the Apex Court disbelieved the said recovery and set aside the order of conviction. 15. It is pertinent to note that in the present case also the recovery is effected after a period of 12 days from the date of the incident and from an open place accessible to one and all. 16. In that view of the matter, we find that the said recovery of the weapon alleged to have been used in the commission of crime, cannot be said to be proved beyond reasonable doubt. 17. In so far as contention of the learned Public Prosecutor regarding finding of blood stains on the knife recovered at the instance of the accused is concerned, firstly, it can be seen that the Chemical Analyser's report is inconclusive regarding the blood group. Apart from that, as already discussed above, recovery of the weapon itself cannot be said to be proved beyond reasonable doubt. In that view of the matter, the contention of the learned Public Prosecutor in that regard, in our view, would not be of much assistance to the prosecution case. 18. The law regarding conviction on the basis of circumstantial evidence has been crystallized by the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 . It would be relevant to refer to the following observations made therein : “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. 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 v. State of Maharashtra, (1973) 2 SCC 793 where the 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 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, (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. 155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry, 1952 NZLR 111 thus: Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for. 156. Lord Goddard slightly modified the expression “morally certain” by “such circumstances as render the commission of the crime certain”. 19. 156. Lord Goddard slightly modified the expression “morally certain” by “such circumstances as render the commission of the crime certain”. 19. It can, thus, clearly be seen that the Apex Court in uncertain terms has held that the primary principle is 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. It has been held that the chain of evidence must be 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. It has been further held that the circumstances so proved should exclude every possible hypothesis, except the one to be proved. 20. In so far as the contention of the learned Public Prosecutor regarding false explanation is concerned, it would be relevant to refer to the observations in the case of Shankarlal Gyarasilal Dixit vs. State of Maharashtra, (1981) 2 SCR 35. It reads thus: “Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.” 21. The Apex Court has reiterated the same principle in the case of Sharad Birdhichand Sarda (supra), 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.” 22. 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.” 22. It can thus be seen that the Apex Court has held that though the circumstances of false plea or a false defence can be used as an additional link to pass order of conviction, a false defence put up by the accused cannot be used as a circumstance to complete the chain which the prosecution is required to prove. The Apex Court has held that once the chain of circumstances is complete to prove the guilt of the accused, a false explanation or false defence can be called into aid only to lend assurance to the conclusion of the Court. 23. In the present case, we find that the prosecution has utterly failed to prove the chain of circumstances in order to arrive at a conclusion that the circumstances so proved would lead to no other conclusion than to the guilt of the accused. 24. One other aspect which needs to be considered in the present case is that the prosecution has utterly failed to establish the motive behind the crime. No doubt that not establishing motive, may not be fatal to the prosecution case in a case of direct evidence. However, in a case resting on circumstantial evidence, the prosecution is required to prove the motive, so as to complete the chain of circumstances. In the present case, on the contrary, the evidence of PW.6 Ajay Kerketa, PW.8 Bimal Bage, and PW.11 Babulal Bage would go to show that relations between the deceased and the accused were cordial, nor were there any fights between them on earlier point of time or even on the date of the incident. 25. In this connection the Apex Court in the judgment reported in (2011) 3 SCC 109 in the case of State through Central Bureau of Investigation V/s Mahender Singh Dahiya, has observed at para 29 thus : “29. In assessing the evidence, the High Court was aware of the legal principles that absence of motive may not necessarily be fatal to the prosecution. Where the case of the prosecution has been proved beyond reasonable doubt on the basis of the material produced before the Court, the motive loses its significance. In assessing the evidence, the High Court was aware of the legal principles that absence of motive may not necessarily be fatal to the prosecution. Where the case of the prosecution has been proved beyond reasonable doubt on the basis of the material produced before the Court, the motive loses its significance. But in cases based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the Court on its guard to scrutinise the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof ( see Surinder Pal Jain V. Delhi Admn., SCC p. 687, para 11 and Tarseem Kumar v. Delhi Admn.)”. 26. In totality of the circumstances, the prosecution has utterly failed to establish a chain of incriminating circumstance proven beyond reasonable doubt, which interwoven to each other, leads to no other conclusion, than the guilt of the accused. 27. In that view of the matter, the appeal deserves to be allowed and is hereby allowed and disposed of. The appellant-accused is directed to be set at liberty forthwith, if not required in any other case. The fees payable to the Counsel appointed to appear on behalf of the appellant-accused are determined at Rs.5,000/- (Rupees five thousand only).