JUDGMENT : G.R. Moolchandani, J. 1. The Jail Appeal No. 534/2006 has been preferred by the accused from the Jail, whereas subsequently Criminal Appeal No. 586/ 2006 has been preferred by the appellant through an Advocate against the judgment dated 18/4/2006 passed by Additional Sessions Judge (Fast Track) No. 2, Jodhpur in Sessions Case No. 24/2005 whereby he has been convicted for the offence under Section 302 of IPC and sentenced to undergo life imprisonment with a fine of Rs.5,000/- and in default further to undergo six months simple imprisonment. 2. In nutshell, the FIR narrates as under:- ^^lsok esa] Jheku~ bUpktZ egksn; th] izrkiuxj Fkkuk izHkkjh] tks/kiqj ¼jkt0½A fo"k;%& Jherh lhrknsoh iRuh vkseizdk'k jsxj cxhZ dkWyksuh elqfj;k tks/kiqj dh gR;k djus ckcr~A fuosnu gS fd eSa ewypUn iq= Hkwjkjke jsxj fuoklh Hkknjiqjk Fkkuk lkaHkj >hy ft0 t;iqj gky edku ua0 26 cxhZ dkWyksuh elqfj;k tks/kiqj dk jgus okyk gwWa esjk Hkrhtk vkseizdk'k viuh iRuh Jherh lhrk ,oa vius nks NksVs cPpksa ds lkFk elqfj;k igkM+h ij cxhZ dkWyksuh esa jgrk gSA vkseizdk'k ds edku esa nks dejs ftu ij irjh Mkyh gqbZ gSA eSa vkt lqcg djhc 8-30 cts vkseizdk'k dks dke ij tkus ds fy;s mlds ?kj ij x;k rks ns[kk fd vkseizdk'k dh deht ij [kwu yxk gqvk Fkk rFkk lhrknsoh dejk esa e`r voLFkk esa vkaxu esa iM+h Fkh eSaus iwNk fd D;k gqvk rks vkseizdk'k us crk;k fd jkf= esa 1-30 cts esjh iRuh ls yM+kbZ gks xbZ ,oa eq>s xqLlk vk;k rFkk eSaus esjh iRuh dks ekj fn;k gSaA eSa ?kcjk x;kA lh/kk Fkkuk ij mifLFkr gqvk gwWa fjiksVZ is'k gSa dk;Zokgh djok;sA fnukad %& 17-08-2005 ,l0Mh0 ewypUn jsxj eq0 Hkknjkiqjk cxhZ dkWyksuh elqfj;k tks/kiqjA fnukad 17-08-2005 le; 9-40 ,0,e0vkj0vkj0 ua0 1075 vkt ;g Qfj;kn Jh ewypUn iq= Hkwjkjke tkfr jsxj mez 33 lky is'kk etnwjh fuoklh xzke cgknwjiqjk lkaHkj >hy ftyk t;iqj gky ,l0 ua0 26 cxhZ dkWyksuh elqfj;k tks/kiqj us vt[kqn gkftj Fkkuk gksdj is'k dh tks lgh gksuk rlyhe fd;kA ,l0Mh0 ewypUn dk;Zokgh iqfyl etewu fjiksVZ ls ekeyk tqeZ tsj nQk 302 rkthjkr fgUn dk ljtn gksuk ik;k tkus ls eqdnek la[;k 376 rkjh[k bejkstk ctqeZ etdqjs okyk esa iathc) dj rQ~rh'k tqEes ,l0vkbZ0 Jh ujirflag HkkVh dh xbZA udy ,Q0vkbZ0vkj0 Qfj;knh dks nh xbZA ,l0Mh0 ewypUn ,l0Mh0 Fkkukf/kdkjh iqfyl Fkkuk izrkiuxj tks/kiqj 'kgj ¼jkt0½A** 3. Heard the arguments advanced by both the sides, learned counsel for the accused-appellant has contended that case of the prosecution is devoid of positive evidence, all the material witnesses have become hostile and have not supported the story of the prosecution, even the complainant-author of the FIR has not supported its version and has turned hostile, recovery witnesses have also turned hostile and accused-appellant has explicitly narrated in examination under Section 313 Cr.P.C. that he was at Phulera and when he returned home by Mandore Express in the morning, then he found his wife dead there, PW-17 Ganesh has also supported even this version that accused was in Phulera and in the evening of 16.8.2005 at 8 PM, he had left for taking train and journey ticket was also given to the Investigation Officer, which was deliberately withheld by I.O. to render a twist to the story, so far as recovery of a belt is concerned, it is also futile, since alleged cause of death has been stated to be by asphyxia and learned trial court has committed gross illegality in passing the impugned judgment, so the appeal of the appellant may be accepted and he be acquitted. Learned counsel for the appellant has relied upon the following judgments:- (i) Nizam & Another v. State of Rajasthan (Criminal Appeal No. 413/2007) decided on 4.9.2015 by Hon'ble Supreme Court. (ii) Mangilal v. State of Rajasthan (Criminal Jail Appeal No. 700/2007) decided on 22nd April, 2016 by this Court. On the contrary, learned Public Prosecutor has contended that there is no error apparent on the face of findings of the learned trial court and appellant has committed murder of his wife, there is positive evidence against the accused-appellant and nothing wrong is there in the verdict, so appeal be dismissed. 4. Heard both the sides and perused the record, which says that the complainant-author of the FIR PW-1 Moolchand has not supported version of the prosecution, but has said that he was taken by the police at 10:00 AM to the house of the deceased several recitals of Ex.P.6 of his Prachabayan have also been refuted by this witness and he has also said that at the time of witnessing the dead body, "bad smell" was coming out of it. He has also said that he was summoned by the police at 3:00 PM and his signatures were taken on Exs.P.1 to Ex.P.5 on blank papers. PW-2 Chunni Lal, PW-3 Amarchand and PW-7 Amar Lal are witnesses of panchnama, PW-2 Chunnilal has become hostile and has said that his opinion was not obtained and his signatures were taken on blank paper on Ex.P.5, likewise PW-3 Amarchand has also said that he is illiterate, so could not read Ex.P.5 nor it was read-over by the police but his signatures were taken and his opinion was not obtained. PW-7 Amar Lal has also turned hostile and has not supported the prosecution. PW-4 Kishore Singh and PW-5 Raghuveer Singh are witnesses of arrest-memo Ex.7. PW-4 Kishore Singh has also narrated that the accused was arrested by Murlidhar, C.I. Saheb and Narpat Singh had investigated this case. 5. PW-16 Hukma Ram and PW-6 Laxman Ram are recovery witnesses but PW-16 Hukma Ram has turned hostile and has not supported the prosecution, Hukma Ram has even said that nothing was recovered before him and in his cross-examination, he has said that he was shown belt in police station and it was not recovered from the possession of Om Prakash. He has also said that he is not literate, so had signed on the say of police, PW- 6 Laxman Das has said that belt and cloths were shown to him by police after calling him, he has also said that police did not seal the cloths before him and he signed on Ex.P.8 without reading it. 6. Recovery of belt has been made on 18.8.2005 vide Ex.P.8 and recovery of shirt of the accused has been made on 17.8.2005 vide Ex.P.9, but contrary to the above factual aspect, PW-6 Laxmandas, recovery witness has said that police had prepared memo of recovery of belt and shirt, singularly, which is not correct and makes the recoveries false, he has also said that the recoveries were made in the morning and his signatures were obtained in the evening at quarter to six. So, evaluation and scrutiny of the evidence of both these recovery witnesses, casts a shadow of doubt, on the merit and veracity of the recovery, because PW-16 Hukma Ram has become totally hostile, whereas PW-6 Laxman Das has not corroborated the recoveries and has narrated method of the same to be contrary, hence, the recoveries as have been made, does not instil any confidence because of being doubtful. 7. PW-17 Ganesh Ram, father of the accused Om Prakash has rather said that his son Om Prakash was away from his town and had been to him and had taken train on 16.8.2005 for Jodhpur, while leaving home at 8:00 PM that day. PW-5 Raghuveer Singh is a Constable and a witness of arrest memo, whereas PW-8 Mahender Singh is a photographer, who has photographed Ex.P.12 and to P.20, the snaps relating to the venue, who has confirmed the same. 8. PW-9 Kishan Singh is a police constable and Malkhana in-charge, who has said that he was having charge of Malkhana on 17.8.2005 and on that day, S.I. Narpat Singh has deposited two sealed packets which were deposited vide entry No.745 on 18.8.2005 and a sealed belt was also deposited at serial No. 746 and on 15.9.2005, Constable Banshidhar has deposited four bottles, which were deposited and entered vide entry No. 764 and he has further said that on 19.9.2005, two packets A and B and four sealed packets of bottles were given for depositing in FSL to Banshidhar Constable, who after depositing the same submitted receipt on 20.9.2005 and has corroborated Ex.P.21 and its copy being Ex.P.21A and Ex.22 and its copy Ex.P.22A. PW-12 Shaitan Singh has corroborated Exs.23, 24, 25 and 26 and has said that he was given six sealed packets for deposit in F.S.L., which were deposited by him and PW-13 Banshidhar has also corroborated Exs.P.23, P.24, P.25 and P.26 and has confirmed deposit of same in F.S.L. 9. PW-14 Dr. PW-12 Shaitan Singh has corroborated Exs.23, 24, 25 and 26 and has said that he was given six sealed packets for deposit in F.S.L., which were deposited by him and PW-13 Banshidhar has also corroborated Exs.P.23, P.24, P.25 and P.26 and has confirmed deposit of same in F.S.L. 9. PW-14 Dr. M.P. Joshi is medical jurist and a Member of Medical Board, who conducted post mortem on the body of the deceased and adverting upon the injuries, he has further said that according to the opinion of the Board, the cause of death of the deceased was asphyxia due to strangulation, corroborating Ex.P.27, post mortem report, he has also said that he had conducted the post mortem on 18.8.2005 and duration of death was one to two days earlier to the post mortem, he has also said that process of the decomposition of the body commences from 24 hours to 36 hours after the death. 10. PW-10 Bhanwar Lal, father of the deceased lady has said that he did not know whether Om Prakash was addicted to liquor or not. He has also declined some of the recitals of his police statements Ex.D.1 and has said that by doing labour work, he earns Rs.80/- daily, he has also said that by dint of his earnings, it becomes difficult to meet expenditure of the family. He has also said that when Om Prakash took away his wife Sita Ram from in-law's home, he did not demand money. He has also said that it is true that he did not see Sita beaten by her accused husband, likewise PW-11 Ramchandra paternal uncle of the deceased, has also said that he used to reside separately from his brother Bhanwar Lal and he as well as his brother Bhanwar did not lodge any report with police regarding Sita's harassment by the accused. He has also said that whatever gifts were given to Sita at the time of her marriage, were given with free-will. He too has negated some of the recitals of his police statements and has said that he never seen accused thrashing Sita. 11. He has also said that whatever gifts were given to Sita at the time of her marriage, were given with free-will. He too has negated some of the recitals of his police statements and has said that he never seen accused thrashing Sita. 11. PW-15 Murlidhar Kiradu is an Investigating Officer, who has narrated chronology and method of the investigation and has also said that he did not find a case under Section 304-B or 498A I.P.C. and has also turned-down a suggestion that the accused had rendered him a "general rail ticket" of Phulera to Jodhpur. 12. Entire evidence appreciated and evaluated hereinbefore does not reflect that the prosecution has succeeded in establishing its case or would have been succeeded in adducing positive evidence against the accused. 13. Author of the FIR Ex.P.1 Moolchand has not supported the story of the prosecution and has turned hostile, likewise witnesses of panchnama have also turned hostile. Similarly important witnesses of the alleged recovery, on which the case of the prosecution is based, have also become hostile and have uttered nothing positive with respect to the alleged recoveries, as such the recoveries cannot be connected with the accused. 14. Ganesh Ram PW-17, who is a prosecution witness, has himself said that Om Prakash his son had been to him and he had left on 16.8.2005 at 8:00 PM, PW-1 Moolchand has said that he was taken to place of occurrence at 10:00 AM, whereas Ex.P.1 reflects that he had been to venue at 8:30 AM and Ex.P.2 FIR reflects that the alleged crime had occurred at about 1:30 AM midnight of 16 and 17.8.2005, if we co-relate all these facts and compare it with opinion of the Doctor, who has said that decomposition of the body commences after 24 hours of the death, then the case of the prosecution fails and becomes dubious, because PW-1 Moolchand has said that when he had been to the house of the deceased, "odour" was disseminating, which makes the story of the prosecution false with respect to the alleged time of occurrence as well. 15. 15. To prove and to establish guilt on the basis of circumstantial evidence, the circumstances must be firmly established and the chain of the circumstances must also be completed, which is drastically lacking in this case because we, find so many loopholes and infirmities in the case of the prosecution as discussed, deliberated and dwelt above. 16. The principle of circumstantial evidence has been reiterated by the Hon'ble Supreme Court in a plethora of cases. In Bodhraj @ Bodha and Others v. State of Jammu & Kashmir, (2002) 8 SCC 45 , wherein the Hon'ble Supreme Court quoted number of judgments and held as under:- "10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99 , Eradu v. State of Hyderabad, AIR 1956 SC 316 , Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 , State of U.P. v. Sukhbasi, (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P. 1989 Suppl. (1) SCC 560). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 17. Hon'ble Apex Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 18. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , the Hon'ble Supreme Court held as under: "12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence." 19. The same principles were reiterated in Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205 , Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq v. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions. 20. We, are of the view that there are manifest infirmities in the evidence of the prosecution, nothing positive has emerged from the evidence to connect the accused with the crime and prosecution has miserably failed to establish its case and has also failed to connect the accused with the alleged crime beyond the contours of reasonable doubt, hence, we are of the view that the accused is entitled to get benefit of doubt. 21. As a result, the appeal succeeds and is hereby allowed. Thus, the impugned judgment of the learned trial court is quashed and accused-appellant is acquitted from the charge of Section 302 of I.P.C. So, he be released forthwith, if not required in any other case. 21. As a result, the appeal succeeds and is hereby allowed. Thus, the impugned judgment of the learned trial court is quashed and accused-appellant is acquitted from the charge of Section 302 of I.P.C. So, he be released forthwith, if not required in any other case. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused-appellant is directed to forthwith furnish a personal bond in the sum of Rs.25,000/- with a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court. A copy of this judgment be kept on both the appeal files. Appeal allowed.