JUDGMENT 1. - The instant Criminal Appeal has been filed by the accused-appellant Liyakat Khan under Section 374(2) Cr.P.C. against the jdgment dated 22.12.2005 passed by the learned Additional Sessions Judge No. Jodhpur in Sessions Case No. 1/2005 whereby the learned Trial Court convicted the accused-appellant for offence under Sections 302, 201, 293 and 499 I.P.C. and punished with following sentence, which reads as under: Under Section 302 I.P.C. Life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo three years S.I. Under Section 302 I.P.C. Three years S.I. and a fine of Rs. 1,000/- and in default of payment of fine to further undergo three months S.I. Under Section 302 I.P.C. Seven years R.I. and a fine of Rs. 2,000/- and in default of payment of fine to further undergo one year S.I. Under Section 302 I.P.C. Seven years R.I. and to pay a fine of Rs. 2,000/- and in default of payment of fine to further undergo one year S.I. 2. As per facts of the case on 10.11.2004 one Barkat Khan gave a written information at 9.45 A.M. to Police Station about death of Smt. Sugara. Upon said written information (Ex. P-24) the police registered an inquest report No. 14/2004 under Section 174 Cr.P.C. and commenced inquiry. 3. During the inquiry complainant PW-2-Ramjan, brother of deceased Sugara filed written report (Ex. P-2) at 3.30 P.M. on 10.11.2004 at Pipar City in which brother of the deceased Sugara raised suspicion and made allegation of murder against Barkat and present appellant Liyakat Khan. The police registered the F.I.R. No. 333 on 10.11.2004 and commenced the investigation. 4. During investigation accused-appellant Liyakat Ali was arrested on the basis of recovery of one gold ornament Tussi and six silver chain Paizeb and Rs. 14,325/- and one iron weight (Bat) upon information given by the accused appellant Liyakat under Section 27 of the Evidence Act. Thereafter after completion of investigation the challan was filed in the Court of Judicial Magistrate, Pipad City from where the case was committed to the Sessions Judge, Jodhpur for trial, but later on transferred to the Court of Additional Sessions Judge (Fast Track) No. 1, Jodhpur for trial. The learned Trial Court after framing the charge against the accused-appellant Liyakat Ali under Sections 302, 392, 201 and 449 I.P.C. commenced the Trial. 5. The learned Trial Court after framing the charge against the accused-appellant Liyakat Ali under Sections 302, 392, 201 and 449 I.P.C. commenced the Trial. 5. In the trial, statement of 16 prosecution witnesses were recorded and 28 documents were exhibited, so also, Articles 1 to 17 were also exhibited. 6. The learned Trial Court after taking into consideration entire facts of the case and prosecution evidence punished the accused-appellant for offence under Sections 302, 201, 293 and 499 I.P.C. vide Judgment dated 22.12.2005. 7. In this Appeal, the appellant is challenging the validity of the Judgment dated 22.12.2005 passed against him by the learned Trial Court. 8. Learned Counsel for the appellant submits that deceased Smt. Sugara and the accused-appellant are close relative. The deceased was elder mother of accused-appellant and there was no motive or intention of the accused-appellant to kill her because she was residing near the house of appellant and his family members. But upon apprehension of PW-2-Ramjan, brother of the deceased Sugara, F.I.R. was registered in which accused-appellant was arrested on the basis of false recovery of Tussi and silver Paizeb and Rs. 14,325/-. In fact, no recovery was made upon his information given by Liyakat Ali, but prosecution framed a concocted story so as to connect the accused-appellant with the era therefore, the judgment impugned passed by the learned Trial Court is totally erroneous. 9. The learned Counsel for the appellant further submits that a grave error of law has been committed by the Trial Court in convicting the accused-appellant for offence under Section 302 I.P.C. because there is no eye-witnesses nor direct evidence on record to connect the appellant with the alleged offence. The prosecution has completely relied upon the circumstantial evidence and recovery of articles so as to prove its case against the accused-appellant but in fact the conviction of appellant on the basis of so called circumstantial evidence is not sustainable in law because the evidence on record is not completing the chain of evidence to hold the accused-appellant guilty for alleged offence therefore, the judgment impugned deserves to be quashed. 10. 10. While attacking upon the so called story of recovery it is submitted that death allegation was levelled by the author of F.I.R. PW-2-Ramjan that he is residing in Bilara whereas Smt. Sugara'was residing in Pipar City, but before 7 days of incident of death of Sugara when he met Sugara, she was wearing golden chain and 6 silver Paijeb, but this fact is not corroborated by any other witness, therefore, the conviction is bad in law. The learned Counsel for the appellant further submit that in the statement DW-2-Barkat categorically stated that after the post mortem police asked the women sitting inside the house of Sugara about her wearing articles and upon direction of Investigating Officer articles were given by one lady but this fact is completely been ignored by the learned Trial Court. It is also submitted that so called recovery upon information given by the accused-appellant under Section 27 of the Evidence Act cannot be treated trustworthy evidence so as to hold the accused-appellant guilty. It is also pointed out that even if it is presumed that ornaments and currency notes were recovered in the house then also, in the house of the appellant not only the appellant is living but so many other persons are living. As per facts the so called recovery was made in the presence of two witnesses PW-l-Habib Khan and Abdul Saleem but in the trial witness Habib Khan "produced as witness of recovery of the articles, but statement of said witness deserved to be ignored solely on the ground that in the Court that he do not know in which criminal case he has gone with the appellant to recover the ornament and further it is submitted that the said witness Habib Khan is sister's son of Sugara. Thus, he is interested witnesses, therefore, it cannot be said that prosecution has proved its case beyond reasonable doubt. 11. The learned Counsel for the appellant further argued that whole case is based upon the statement of PW-2-Ramnaj and PW-7-Habib Khan before him recovery was alleged to be made, but no other witness is corroborating the fact of recovery of articles, therefore, the whole prosecution case is standing upon baseless foundation of evidence, therefore, the judgment impugned deserves to be squashed. 12. 12. Per contra, learned Public Prosecutor vehemently submits that it is a case in which by leading circumstantial evidence with complete chain, the prosecution has proved its case beyond reasonable doubt, therefore, there is no strength in the argument of the learned Counsel for the appellant that prosecution has failed to prove its case beyond reasonable doubt. With regard to recovery of the ornaments, it is submitted that so called recovery which is said to be made at the instance of the appellant as per the information given by the accused-appellant it is a case in which the prosecution has produced trustworthy evidence of recovery of ornaments and weight (Bat) therefore, the judgment impugned is perfectly based upon reliable evidence produced by the prosecution. 13. Lastly, the learned Public Prosecutor argued that the deceased Sugara was living in his house and she was 75 years of age and no other person than the accused-appellant in her family to took after her, but the appellant only to get ornaments and cash, murdered Sugara, therefore, there is ample evidence to prove the motive of accused-appellant Liyakat to kill Sugara, therefore, there is no question arise to disturb the finding given by the learned Trial Court in convicting the accused-appellant for alleged offence of murder. One weight was also recovered at the instance of the accused-appellant which is used by him for inflicting the injury upon the body of Smt. Sugara and this fact is corroborated from the injuries found upon the body of Sugara mentioned in the post mortem report, therefore, on the basis of corroborative medical evidence and recovery of ornaments and weight at the instance of the accused-appellant, it can be said that prosecution has established its case beyond reasonable doubt upon which the learned Trial Court convicted the accused-appellant for alleged offence of murder. In view of the above, it is submitted that this Appeal may kindly be dismissed. 14. After hearing the learned Counsel for the appellant as well as learned Public Prosecutor, we have minutely scanned the entire evidence, upon which the finding is given by the learned Trial Court for conviction on aforesaid offences. 15. In the trial, the statement of 16 prosecution witnesses were recorded. There is no direct evidence or eye-witnesses to prove the prosecution, therefore, the prosecution has relied upon circumstantial evidence.PW-1-Sarif Mohd. 15. In the trial, the statement of 16 prosecution witnesses were recorded. There is no direct evidence or eye-witnesses to prove the prosecution, therefore, the prosecution has relied upon circumstantial evidence.PW-1-Sarif Mohd. is the witness before whom the body of the deceased Smt. Sugara was inspected and after inspection (Ex. P-1) was prepared. The PW 2-Ramjan Khan is the real brother of deceased Sugara, who was residing at Bilara and on the date of occurrence, i.e. on 10.11.2004 in the morning at 7 O'clock the said witness received an information on telephone from Pipar City that some unknown person has murdered his sister. The said information was given by his other sister's son Rafiq. Upon said information he went to Pipar City in the house of her sister deceased Sugara. When he reached to the house of deceased Sugara at Pipar City, he saw that dead body of his sister was lying in the room known as Saal, upon body a cloth was put and upon inspection of body it is found that there was injury upon the head of deceased Sugara and blood was coming out and spread over there. At that time, Fakir Mohd., Chhoti, Heena, accused Liyakat and Barkat were present. They said that Sugara is of old age and due to illness she fell down and died. As per the statement of PW-2-Ramjan in the Court previously when he met Sugara he saw that she was wearing one golden chain in his neck and silver Paijeb in both the legs, but neither the golden chain was found upon the body nor silver Paijeb found, therefore, he raised suspicion and filed report before the police, which is Ex. P-2. Upon perusal of the statement of PW-2-Ramjan Khan it emerges that he raised certain suspicion with regard to death of his sister and specifically stated in the Court that " eq>s 'kd gS fd esjh cgu lqxjk dh ekSr pksVksa ds dkj.k gqbZ vkSj fy;kdr o cjdr us lqxjk dks tk;nkn ds fy;s ekjk gSA " Obviously, the aforesaid statement speaks out that this witness was having apprehension that Liyakat and Barkat might have killed his sister to gain property, but-we cannot lose sight of the fact that he is not eye-witness nor any specific allegation was levelled by him with regard to motive. He said that his sister Smt. Sugara was having property and ornament, therefore, she might have been murdered by Liyakat and Barkat, but admittedly, he is not eye-witness.Witness PW-3-Idrish stated before the Court that the body of Sugara was taken in possession by the police vide memo Ex. P-4 and the site plan Ex. P-5, so also in front of him one pillow and quilt were taken in possession from the place of occurrence and put into a bag for which Ex. P-6 was prepared, upon the said document his signatures were taken but this witness is not eye-witness to give light upon the incident.PW-4-Rafiq is the witness who went soon after the occurrence to the house of deceased Smt. Sugara and participated in the investigation as witness and put signatures upon Ex. P-4 and Ex. P-7, he said that when he received information that your aunty (Mashi) has been murdered, he went to the house of her aunty and saw that the dead body of deceased Smt. Sugara was lying on a cot and blood was coming out form the body due to the head injury. The family members, brother-in-law Fakir Mohd., Barkat, Liyakat and wife of Fakir Mohd. was present and he gave telephonic call to his maternal-uncle PW-2-Ramjan Khan.We have perused the statements of PW-4-Rafiq. This witness is not eye-witness nor he gave any definite evidence except suspicion upon the accused-appellants and said that " ge 'kd ds vk/kkj ij dg jgs gSa fd fy;kdy us /ku ds ykyp esa lqxjk dk eMZj fd;k gSA "PW-5-Ibrahim Khan is a witness who signed upon Ex. P-3 whereby dead body of Sugara was taken for the purpose of cremation.The witness PW-6-Usman Gani said that after incident he went to the house of deceased Sugara where police personnel's were there and in his presence Rs. 18,945/- huge along with gold and silver ornaments were recovered from different places of the house of deceased Sugara and recovery memo Ex. P-8 was prepared upon which is signature were taken. Likewise, he submitted that for the purpose of investigation, the Investigating Officer took the blood material found upon the walls and put in the plastic bag and prepared Ex. P-9 upon which his signatures were taken which is Ex. P-9. Likewise he has stated that vide Ex. P-8 was prepared upon which is signature were taken. Likewise, he submitted that for the purpose of investigation, the Investigating Officer took the blood material found upon the walls and put in the plastic bag and prepared Ex. P-9 upon which his signatures were taken which is Ex. P-9. Likewise he has stated that vide Ex. P-6 one pillow and quilt were taken into possess in from the place of occurrence but upon perusal of whole statement it is revealed that no specific allegation was made by this witness against the accused-appellants or against any other person.PW-7-Habib Khan is the sole witness of recovery of articles upon the information given by the accused-appellant under Section 27 of the Evidence Act. This witness stated in the examination-in-chief that as per the information given by the accused-appellant Liyakat, the police recovered one weight (Bat) and Rs. 14,332/- and one golden Tussi and six silver Pajeb ornament. Further, it is stated that blood stained cloths were also recovered from the hosue of accused-appellant vide Ex. P-10 upon which his signatures as A to B is there. It is worthwhile to observe that for the purpose of recovery of above articles although one more witness namely Abdul Saleem was arrayed as witness by the prosecution but he was not produced in the trial. The police party prepared the site plan of the place from where the above articles were recovered which is Ex. P-11. It is worthwhile to observe that for the purpose of recovery of above articles although one more witness namely Abdul Saleem was arrayed as witness by the prosecution but he was not produced in the trial. The police party prepared the site plan of the place from where the above articles were recovered which is Ex. P-11. Upon perusal of whole of the statement of the PW-7-Habib Khan it emerges that in the cross-examination, this witness gave following statement, which is as under:- " eSa tUe ls ihikM+ esa jgrk gwWaA eSa 10&12 lky ls fcykM+k esa O;olk; djrk gwWaA esjk fcykM+k esa Hkh jgokl gSA bl ekeys esa fdlh dh ekSr gqbZ irk ughaA u gh eq>s dksbZ lwpuk izkIr gqbZ eq>s vkt Hkh ;g tkudkjh ugha gS fd ;s fdldh ekSr dk eqdnek gSA lqxjk euoj [kka ds dqN ugha yxrh FkhA eSa jkLrs ls fudy jgk Fkk] rc iqfyl dh thi [kM+h Fkh] ogka nwljs yksx ugha FksA iqfylokys 3&4 tus FksA eSa mu iqfyl okyksa ds uke ugha tkurkA ml le; eSa vdsyk ?kj ij Fkk] esjs lkFk dksbZ ugha Fkk b'kkd o jetku [kka esjs dqN ugha yxrs] ;s nksuksa esjs ekek ugha yxrs esjh ekrk dk uke tsrwu gS] esjh ekrk ds HkkbZ;ksa ds uke eq>s irk ugha] eq>s esjs ukuk dk uke irk ughaA esjs ekSlh ugha gSA esjs ufugky esa dksbZ fj'rsnkjh ugha gSA esjk ufugky fcykM+k esa FkkA eSa vius ufugky x;k gwWa tks djhc nks lky igys x;k] ufugky esa eSa ljnkj [kka ds ;gk x;kA eq>s irk ugha fd ljnkj [kka esjs D;k yxrs gSA eSa ogka vdsyk gh x;kA " In above statement the witness PW-7-Habib Khan completely denied that leis knowing the deceased Sugara nor or having any relation with her, but PW-8-Jahangir before whom the hair of the deceased was recovered vide Ex. P-12 stated that PW-7-Habib Khan is the real sister's son of deceased Sugara and he is uncle's son. Meaning thereby, the witness of recovery PW-7-Habib Khan in spite of the fact that he is sister's son of deceased Sugara, completely denied in the Court that he is having any relation with the deceased.PW-9-Ram Singh, S.I. of Police Station Dangiyawas who gave statement that in Case No. 333/2004 he was the person before whom Liyakat was arrested vide Ex. P-13.PW-10-Bhanwar Singh, Head Constable No. 72 of Police Station, Pipad City. P-13.PW-10-Bhanwar Singh, Head Constable No. 72 of Police Station, Pipad City. He was incharge of Malkhana where all the articles were recovered in the investigation were deposited and he has proved that those articles were deposited in Malkhana.PW-11-Dr. Shreechand Bohra who has conducted the post mortem of deceased Sugara and prepared the post mortem report Ex. P-21 and gave opinion that there was fracture upon the left temporal bone and diagometic bone and in fact, there were 7 injuries upon the body of deceased. It is obvious that the deceased died due to the injuries inflicted upon her.PW-12-Bhagu Ram is the witness who was working as Constable in Crime Branch, Jodhpur Rural, who has sent 9 sealed packet to the F.S.L. after preparing forwarding letter Ex. P-16 through Constable Pepa Ram.PW-13-Bhawani Singh is the witness who has handed over the articles to deposit in the F.S.L. for analysis.PW-14-Gulam Rasool is the witness who turned hostile and did not support the prosecution story.PW-15-Naresh Sharma, is the Investigating Officer of the case. He has gave categoric statement that whole investigation was conducted by him. Although the Investigating Officer made statement that entire investigation was conducted by him, but in the cross-examination, when a specific question was put to him that blood stained cloths in which gold ornament Tussi was recovered was not sent to the F.S.L., it is stated by him that he cannot say what was the reason for not sending the said cloth for analysis. Further, it has categorically stated in the cross-examination that- " e`rdk ls lacaf/kr tks esjs }kjk cjken dh x;h Vwlh o pkanh dh tksfM+;kWa ux N% Fkh] mudh f'kuk[rxh dh dk;Zokgh fdlh ls ugha djok;hA Vwlh o pkanh dh tksfM+;ksa dks cjkenxh ds le; fnukd 13-01-2004 dks lhypsik fd;k o vkt izFke ckj ;s nksuksa oLrq,a U;k;ky; esa [kksyh x;hA cjkenxh esa [kksyh x;hA cjkenxh LFky izn'kZ ih&11 esa n'kkZ;s LFky dh f'kuk[rxh o rLnhd fdlh ls ugha djk;hA ;g lgh gS fd tc izn'kZ ih&10 cjkenxh dh ml le; cjkenxh okys ?kj esa efgyk,a o cPps ekStwn Fks] muesa ls fdlh ds gLrk{kj izn'kZ ih&10 ij ugha djk;s] u gh muls iwNrkN dhA " PW-16 is Pepa Ram, Constable No. 644, Police Station Pipad City. He was witness who took the 9 sealed packets to deposit in the F.S.L., Jodhpur for analysis vide Ex. P-15. 16. He was witness who took the 9 sealed packets to deposit in the F.S.L., Jodhpur for analysis vide Ex. P-15. 16. In the statement recorded under Section 313 Cr.P.C., the accused appellant said and gave the following reply to the question put on him: " ?kVuk ds fnu lqcg eSa vius ?kj ij lks jgk FkkA rc eq>s cjdr o mldh cPph us crk;k fd cM+h ekWa lqxjk cksy ugha jgh gS rc eSa o cjdr nkSM+dj cM+h eka ds ?kj igqaps] fQj vkl iM+kSl okys Hkh vk x;s] lqxjk ej pqdh FkhA bl dkj.k eSaus] cjdr o vU; yksxksa us lqxjk dks mBkdj vanj okys dejs esa ysdj vk;sA ml oDr tks esjs diM+s igus gq, Fks] os iqfyl okyksa us mlh fnu eq>s Fkkus esa fcBk;s j[ks o diM+s ys fy,A eSa funksZ"k gwWaA eq>s >wBk Qalk;k gS D;ksafd eSa lqxjk dk okfjl ugha cu tkmWaA " 17. In support of defence, the statement of DW-1-Nazma and DW-2-Barkat were recorded in which they specifically said that whole case is based upon suspicion and accused-appellant have been implicated falsely in this case. 18. After perusing the entire evidence and documents on record it is abudently clear that the case is based upon circumstantial evidence which is recovery of ornaments and weight. It is worthwhile to mention here that as per statement of PW-15-Naresh Sharma those ornaments were not identified because no any identification process was conducted for the identity of ornaments. More so, from the house of deceased Rs. 68,945/- and huge silver and gold ornaments were recovered from different places of house. Meaning thereby upon applying mind for the so called motive of murder to take property as alleged by the prosecution, we are of the view that the said allegation of motive is not acceptable because if there was intention to have golden ornaments and money then how the huge ornaments and amount of Rs. 68,945/-was found in the house of the deceased and only two ornaments which is Paijeb and golden Tussi were recovered upon the information of accused-appellants. In fact, as per the admitted case, Liyakat and Barkat are sons of Fakir Mohd. brother-in-law of the deceased Sugara and they informed the police prior to the complaint filed by PW-2-Ramjan Khan on suspicion. 68,945/-was found in the house of the deceased and only two ornaments which is Paijeb and golden Tussi were recovered upon the information of accused-appellants. In fact, as per the admitted case, Liyakat and Barkat are sons of Fakir Mohd. brother-in-law of the deceased Sugara and they informed the police prior to the complaint filed by PW-2-Ramjan Khan on suspicion. In whole of the investigation, the accused-appellant Liyakat, Barkat and all other family members participated none of them left the house but only on the basis of suspicion, PW-2-Ramjan Khan filed F.I.R. and in pursuance of that accused-appellant was made accused on the basis of so called recovery of golden Tussi and six silver Paijeb and blood stained cloths. We have perused the F.S.L. report also in which it is revealed that upon iron weight (Bat) (Sher) human blood was found but no blood group was determined. We have considered the statement of witnesses of recovery PW-7-Habib Khan. The testimony of this witness cannot be retreated as trustworthy evidence because upon question put to him whether you know who died in the incident, he said I don't know. Further, it is stated that he is not having any relation with the deceased Sugara, but PW-8-Jahangir, is cousin brother of this witness said that Habib Khan is his real sister's son deceased Smt. Sugara. Meaning thereby, the testimony of witness of recovery of weight (Bat) and golden and silver ornaments cannot be accepted because even though he is close relative of deceased Sugara, he refused to accept in the Court that he is sister's son of Sugara, therefore, on the basis of above fact the so called recovery of Bat cannot be considered trustworthy evidence so as to maintain the conviction of accused-appellant Liyakat. 19. The total case is based upon the recovery of Bat, one golden Tussi, silver Paijeb and blood stained cloths, but there is no trustworthy evidence of recovery, therefore, only on the basis of recovery it is not safe to maintain the conviction. We have perused the findings of learned Trial Court. The learned Trial Court relied upon the testimony of PW-7-Habib Khan and accepted the suspicion of PW-2-Ramjan Khan with the allegation of motive but in fact upon assessment of evidence on record, the complete chain of circumstances so as to convict the accused-appellant Liyakat is absent. 20. We have perused the findings of learned Trial Court. The learned Trial Court relied upon the testimony of PW-7-Habib Khan and accepted the suspicion of PW-2-Ramjan Khan with the allegation of motive but in fact upon assessment of evidence on record, the complete chain of circumstances so as to convict the accused-appellant Liyakat is absent. 20. In the case of Mani v. State of Tamil Nadu, reported in 2008 Cr.LR. (SC) 306 , the Hon'ble Supreme Court held that discovery of articles and weapon is a weak type of evidence and cannot be relied upon wholly for conviction in such a serious matter of murder. Para No. 21 of the said judgment is as follows:- "21. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged blood stains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the Courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the Courts below have ignored this every important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory. We also fail to understand the finding of the High Court in respect of the motive. In our opinion, there was no motive whatsoever much less entertain able by the present appellant. He had nothing to do with the straying cattle nor was he as party to subsequent altercation between PW-l-Arunachalam and the Accused No. 2-Moyyasamy. Lastly, there is nothing on record to show that he was a henchman set up to take revenge by Accused No. 2-Moyyasamy and he was set up by the Accused No. 1 to revenue. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive entertain able by the appellant. Lastly, there is nothing on record to show that he was a henchman set up to take revenge by Accused No. 2-Moyyasamy and he was set up by the Accused No. 1 to revenue. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive entertain able by the appellant. Therefore, even for that circumstance has to go." 21. In the case of Sharad Birdichand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622 the Hon'ble Supreme Court held that if case is based upon circumstantial evidence then prosecution is required to prove its case beyond reasonable doubt while leading complete chain so as to held accused guilty. The following adjudication is made by the Hon'ble Supreme Court in Paras No. 152 and 153 of the said judgment, which reads as under:- "A close anlaysis 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 & Anr. v. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (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. (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 golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 22. The instant case is also based upon sole evidence of recovery and finding of the learned Trial Court is also based upon the said evidence of recovery in front of PW-7-Habib Khan, but we are of the opinion that learned Trial Court has committed a serious error while accepting the testimony of such witness who as completely gave false statement with regard to his relation with the deceased. 23. Upon assessment of entire evidence discussed above, we are of the opinion that in absence of complete chain of circumstances, no inference can be drawn only on the basis of recovery for offence of murder. The complete chain of circumstances must be in existence which is lacking in the present case. More so, the prosecution case is based upon circumstantial evidence of interested close relative PW-2-Ramjan, real brother and PW-7-Habib Khan, sister's son of deceased, therefore, it is not safe to maintain the finding of conviction on the basis of concocted evidence of recovery which is not proved by any independent witness. 24. Further, in absence of identification of ornaments the case become doubtful because the PW-15-Naresh Sharma Investigating Officer accepted in his statement that for recovered ornament, no identification was made by any witness. 25. With regard to recovery of one iron weight (Bat) at the instance of the appellant, the prosecution has led evidence of PW-7-Habib Khan only but his statement cannot be treated trustworthy because he is close relative of deceased Sugara and there is no other independent evidence who has proved the recovery. More so, it is a case in which the close relative of deceased Sugara were present when the police party came on spot and participated in the investigation without raising any grievance. More so, it is a case in which the close relative of deceased Sugara were present when the police party came on spot and participated in the investigation without raising any grievance. There is no direct evidence of motive nor is any explanation of the prosecution why the amount and ornaments were remained in the house of deceased Sugara when allegation is against the accused-appellants that they have murdered to grab the property and ornaments of the deceased. 26. On the basis of assessment of entire evidence, our point-wise conclusion as follows: (a) There is no direct evidence because the case is based upon circumstantial evidence. (b) The conviction is solely based upon the recovery of ornament golden Tussi and 6 Pijeb and one weight (Bat)(Sher) in the presence of the witness PW-7-Habib Khan, but upon assessment of his statements coupled with the statement of DW-1-Najma, we are of the view that the so called recovery of ornaments cannot be treated to be proved by the prosecution beyond reasonable doubt. The witness of recovery PW-7-Habib Khan is close relative of deceased, therefore, not trustworthy witness, which is evident from the reply given by him in the cross-examination by him, so also, on the basis of fact that his cousin brother PW-8-Jahangir has categorically stated in his statement that PW-7-Habib Khan is real sister's son of deceased Sugara, whereas in his statement he said that Sugara is not his relative, therefore, conviction based upon the close relative is not sustainable in law. (c) With regard to recovery of iron weight (Bat) (Sher) we are of the opinion that it has not been proved by the PW-11-Dr. Shree Chand Bohra that the injuries found upon the body of the deceased can be caused by iron weight (Bat) (Sher). (d) Likewise the recovery of iron weight (Bat) (Sher) is also doubtful because the testimony of sole witness of recovery PW-7-Habib Khan is not acceptable, because the testimony of PW-7-Habib Khan cannot be relied upon to hold accused appellant guilty. (e) Upon persual of entire evidence, there is no evidence to prove the motive because except two ornaments i.e., golden Tussi and silver Paijeb, which are alleged to be recovered at the instance of the accused appellant, but large number of ornaments and a sum or Rs. 68,000/- and odd were found in the house of the deceased itself. (e) Upon persual of entire evidence, there is no evidence to prove the motive because except two ornaments i.e., golden Tussi and silver Paijeb, which are alleged to be recovered at the instance of the accused appellant, but large number of ornaments and a sum or Rs. 68,000/- and odd were found in the house of the deceased itself. Therefore, it cannot be presumed that only to get the money and ornament, the accused applicant was having any motive to murder the deceased. (f) We have also ascertained from the entire facts of the case that right from beginning in the investigation till the arrest of the accused appellant, he remained present and only on the basis of doubt created by PW-2-Ramjan Khan, brother of the deceased, who was residing at Bilara, the learned Trial Court gave finding that accused-appellant is guilty, but in our view, without any trustworthy, cogent and reliable evidence with regard to motive, it cannot be said that accused appellant was having any motive to commit offence. 27. In view of the above, we hold that prosecution has completely failed prove its case beyond reasonable doubt on the basis of so called evidence recovery of ornaments and iron weight (Bat). Therefore, accused-appellant entitled for benefit of doubt. 28. Consequently, this Criminal Appeal is hereby allowed. The Judge dated 22.12.2005 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Jodhpur in Sessions Case No. 1/2005 against the accused-appellant hereby quashed and set aside. The accused-appellant shall be released forthwise if not needed in any other case.Keeping in view, however, the provisions of Section 437-A Cr.P.C. accused-appellant is directed to forthwith furnish a personal bond in the sum Rs. 20,000/- and a surety bond in the like amount each, before the learned the Court, which shall be effective for a period of six months to the effect that in event of filing of Special Leave Petition against the judgment or for grant leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.Appeal allowed. *******