JUDGMENT : 1. In this cr. appeal filed under Section 374 (2) of the Cr.P.C. the accused appellant has challenged the judgment dated 20.12.2006 passed by the learned Addl. Sessions Judge (FT), Bali in Sessions Case No. 19/2006 whereby the accused appellant was convicted for the offences under Sections 302 IPC and for the offences under Section 3/35 and 3/27 of the Arms Act and following sentence was passed against him: "Under Section 302 IPC -- Life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo one year additional sentence. Under Section 3/25 and 2/27 of the Arms Act -- Three years RI with fine of Rs. 1,000/- and in default of payment of fine to further undergo six months RI." 2. As per facts of the case, a written report (Ex. P/15) was filed by Moda Ram (PW-9) at Police Station Rani stating therein that well (Arath) is situated at village Nadol, there is no water in the well, where I am residing with my wife. My all the sons are residing out of village for earning their livelihood. Today i.e., on 25.4.2006 at about 9.00 pm my wife in daily routine went near well (Arath) for collecting fire woods and "Chhara". In the evening at 4'O Clock my relative Jetha Ram S/o Tikam Ji Choudhary, my nephew Kheema Ram, Achala Ram and wife of my nephew Sukhi and Shanta went at my well Niwariya in tractor to collect fire woods where they saw that dead body of my wife Umi, aged about 68 years was lying there. One blood stained stone was lying near the body, therefore, it is obvious that some unknown person inflicted injury upon her head and caused death of my wife. It is also stated that the gold ornament Bor and ring of nose having weight of 7 and 4 grams respectively were not found upon her body. 3. Upon receiving such information, the complainant immediately went on spot and shifted the body in the trolley of tractor. It is prayed by the complainant that body of his wife is lying in tractor trolley, therefore, investigation may be conducted so as to convict the person who murdered my wife. 4. Upon aforesaid information, formal FIR No. 48 was registered on 25.4.2006 against the accused appellant at Police Station Rani and investigation was commenced. It is prayed by the complainant that body of his wife is lying in tractor trolley, therefore, investigation may be conducted so as to convict the person who murdered my wife. 4. Upon aforesaid information, formal FIR No. 48 was registered on 25.4.2006 against the accused appellant at Police Station Rani and investigation was commenced. The dead body of the deceased Umi was taken to the hospital and formal investigation on the spot was conducted by the SHO Police Station Rani. 5. In the investigation, no eye witness or direct evidence was found but in the post mortem report (Ex. P29), the medical board gave its opinion that the cause of death of Smt. Umi wife of complainant Moda Ram is hemorrhage and shock due to fire arm injury. In the post mortem report, five injuries were also mentioned by the medical board after examination of the body. 6. The accused appellant was arrested during investigation on the basis of evidence of last scene near the place of occurrence vide arrest memo (Ex. P/23) dated 26.4.2006. After arrest, as per his information given under Section 27 of the Evidence Act, the recovery of ornaments were made vide Ex. P/24 in presence of two witnesses Ram Lal and Chaina Ram. After post mortem, the dead body of the deceased was handed over to the family members. The blood stained stone, blood smeared soil, control soil, Orna and Kachali of the deceased was sent to the FSL for chemical examination and in return, FSL report (Ex. P/37) dated 24.5.2006 was received. One SBML country made gun recovered at the instance of the accused appellant was sent to the FSL, Jaipur and the pallets ¼NjsZ½ taken from the body of the deceased Umi were also sent to the FSL for examination. In the FSL report of articles, human blood of 'O' group was found upon all the articles were belonging to the deceased and soil collected from the place of occurrence. After completion of investigation, charge-sheet was filed against the accused appellant on the basis of circumstantial evidence of recovery of ornaments, gun and last seen in the court of Judicial Magistrate, Desuri under Section 302, 447, 394 IPC and for offence under Section 3/25 and 3/27 of the Arms Act in FIR No. 48/2006 registered against the accused appellant at Police Station Rani. 7. 7. The learned Magistrate committed the case for trial to the court of learned Addl. District & Sessions Judge, Bail, but later on it was transferred to the court of learned Addl. District & Sessions Judge (FT), Bali for trial. 8. In the trial, after providing an opportunity of hearing charge under Section 302, 447/394 IPC and under Section 3/25 and 3/27 of the Arms Act were framed but the accused appellant denied the charge and prayed for trial. During trial, statements of 19 prosecution witnesses were recorded and 40 documents were exhibited from prosecution side. Thereafter, the statements of accused appellant were recorded under Section 313 Cr.P.C., in spite of granting an opportunity to lead evidence in defence, no evidence was led by the accused appellant in defence. 9. The learned trial court although gave finding that prosecution has failed to prove recovery of ornaments but, held accused appellant guilty for offence under Sections 302 IPC and under Section 3/25 and 3/27 of the Arms Act upon the evidence of 'last seen' and recovery of gun at the instance of the accused appellant and gave finding that the gun shot injury found upon the body of the deceased was caused by the gun which is recovered at the instance of the accused appellant vide judgment dated 20.12.2006 and passed sentence mentioned above. 10. The learned trial court acquitted the accused appellant from the charge under Section 394 and 447 IPC because the prosecution has failed to prove recovery of ornaments at the instance of the accused appellant but held accused appellant guilty for offence under Section 302 IPC and under Section 3/25 and 3/27 of the Arms Act. 11. In this appeal, the accused appellant has challenged validity of the impugned judgment on number of grounds. 12. Learned counsel for the appellant submits that there is no direct evidence or eye witness to prove the prosecution case against the accused appellant for committing offence of murder. The entire prosecution case is based upon circumstantial evidence but the finding of guilt recorded against the accused appellant for offence under Section 302 IPC on the basis of recovery of gun and last seen is totally erroneous because it is based upon presumption only. The entire prosecution case is based upon circumstantial evidence but the finding of guilt recorded against the accused appellant for offence under Section 302 IPC on the basis of recovery of gun and last seen is totally erroneous because it is based upon presumption only. Learned counsel for the appellant further submits that the evidence of 'last seen' is based upon the fact that accused appellant was seen nearby area of place of occurrence with the gun is not an incriminating circumstance against the accused appellant because the people of Bawari Case are usually having muzzle loading gun with them, therefore, such fact of recovery of gun at the instance of the accused appellant does not connect the accused appellant with the crime, therefore, even if finding of recovery of gun is accepted then also there is no question to hold the accused appellant guilty of the crime of murder. 13. Learned counsel for the appellant argued that the challan was filed against the accused appellant on the basis of circumstantial evidence, but the evidence to complete the chain of circumstances is missing so as to hold accused appellant guilty because the learned trial court disbelieved the recovery of ornaments at the instance of the accused appellant. Therefore, the conviction simply on the basis of recovery of gun does not prove any case against the accused appellant. The finding of guilt recorded by the learned trial court has no basis of trustworthy evidence, therefore, the judgment impugned deserves to be quashed. 14. Learned counsel for the appellant further argued that on the one hand, the accused appellant has been acquitted from the charge levelled against him under Section 447 and 394 IPC and gave finding that he has not committed any offence of trespass then how it can be presumed that accused appellant caused gun shot injury on the deceased for ornaments, therefore, the finding of conviction against the accused appellant is based upon the erroneous consideration of circumstantial evidence because there is no evidence to connect the accused appellant with the crime, therefore, judgment impugned may be quashed. 15. 15. Per contra, learned Public Prosecutor vehemently submits that it is a case in which although there is finding that prosecution has failed to prove recovery of ornaments, but this court cannot lose sight of the fact that prosecution has proved the recovery of gun at the instance of the accused appellant so also there is finding of learned trial court that pallets ¼NjsZ½ recovered from the body of the deceased were caused by the gun, which is said to be recovered at the instance of the accused appellant. 16. Learned Public Prosecutor submits that there is finding after due consideration of the evidence that the day on which the occurrence took place, the accused appellant was seen with muzzle loaded gun nearby area where occurrence took place, therefore, it cannot be said that any error has been committed by the learned trial court so as to hold accused appellant guilty for offence under Section 302 IPC on the basis of circumstantial evidence of recovery of gun and last seen. Therefore, this appeal may kindly be dismissed because there is no merit in this appeal. 17. After hearing learned counsel for the parties, first of all, we have perused the finding of the learned trial court with regard to recovery of ornaments. The learned trial court after due appreciation of evidence gave its finding and held in para No. 45 of the judgment that prosecution has failed to prove the recovery of ornaments at the instance of the accused appellant, therefore, the accused appellant cannot be connected with the crime on the basis of recovery of ornaments. However, the learned trial court gave finding that gun was recovered at the instance of the accused appellant in the presence of two witnesses PW-10 Ram Lal and PW-12 Chaina Ram. 18. In our opinion, there is no question to disbelieve the finding of the learned trial court regarding recovery of gun, but at the same time, we are of the opinion that upon inquiry made by the SHO (PW-6) Bhikam Chand from the licensing authority it was specifically informed vide Ex. P/4 that no license is issued in favour of the accused appellant to have gun, therefore, obviously, prosecution has proved the recovery of gun, that too, without license. We have considered the entire evidence and perused the finding of the learned trial court with regard to fact of last seen. P/4 that no license is issued in favour of the accused appellant to have gun, therefore, obviously, prosecution has proved the recovery of gun, that too, without license. We have considered the entire evidence and perused the finding of the learned trial court with regard to fact of last seen. It is very strange that there is no finding of the learned trial court that accused was last seen with the deceased together. The learned trial court gave following finding after assessment of entire record, which reads as under:- ^^30- lk{; ds mijksDr foospu ls ,d ifjfLFkfr lUnsg ls ijs fl) gksrh gS fd ?kVukLFky okys csjk dh rjQ vfHk- eksrh;k dks Vksihnkj cUnqd ysdj tkrs gq, ns[kk x;k FkkA** 19. In view of the above, it is obvious that there is no finding or evidence on record to prove that deceased and accused appellant were last seen together before her death, therefore, the conviction of the accused appellant upon aforesaid finding of last seen is not sustainable in laws in view of the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 (SC) 1622 . 20. It is admitted facts of the case that entire prosecution case is based upon circumstantial evidence of last seen, recovery of ornaments and recovery of gun, so also, evidence of ballistic expert and FSL. As per our consideration and assessment, the prosecution has failed that deceased and accused appellant were last seen together before death of deceased. The finding of last seen is based upon presumption only. Similarly, there is finding in the judgment that prosecution has failed to prove recovery of ornaments, at the instance of the accused appellant. Of course, the prosecution has proved recovery of gun, but has failed to prove that pallets ¼NjsZ½ found upon the body of the deceased were fired from this gun recovered from the accused because as per FSL report of articles (Ex. P/37) upon blood stained stone, blood smeared soil, control soil, Orna and Kachali of the deceased the blood of 'O' group was in existence, but none of the articles belongs to the accused appellant. In the ballistic report of FSL (Ex. P/40), following opinion was given which reads as under: "1. One S.B.M.L. country made gun (W/1) from packet 'E' is a serviceable firearm. 2. In the ballistic report of FSL (Ex. P/40), following opinion was given which reads as under: "1. One S.B.M.L. country made gun (W/1) from packet 'E' is a serviceable firearm. 2. The examination of the barrel residue indicates that submitted S.B.M.L. country made gun (W/1) had been fired. However, the definite time of its last fire could not be ascertained. 3. Eleven irregular shaped lead pieces and one rusted iron piece from packet 1' are normally not used in 12-bore ammunition. These could have been fired from submitted S.B.M.L. gun (W/1) from packet 'E'." 21. Similarly, in the report of FSL (Ex. P/41) dated 5.5.2006 which is result of examination of pallets ¼NjsZ½ it is reported that though the human blood was found upon the pallets ¼NjsZ½ recovered from the body of the deceased, but no opinion about blood group is given, more so, it is observed that the same is inconclusive. 22. Upon cumulative reading of the Ex. P/40 and Ex. P/41 we are of the firmed opinion that such type of circumstantial evidence cannot be relied upon so as to connect the accused appellant with the crime for offence under Section 302 IPC because it creates serious doubt upon the prosecution case. 23. In Sharad Birdhichand's case (supra), the Hon'ble Supreme Court laid down following principles to assess the circumstantial evidence, which reads as under: "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 & Anr. 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." 24. As per above law laid down by the Hon'ble Supreme Court, we are of the firmed opinion that finding of the learned trial court based upon circumstantial evidence of last seen and the FSL report is not sustainable in law so as to connect the accused appellant with the offence under Section 302 IPC because in the case based upon circumstantial evidence, it is duty of the prosecution to prove each and every facts so as to connect the accused appellant with the crime. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events for which the only irresistible conclusion that can be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take legal proof. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take legal proof. This court will have to satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. This court has to be watchful and avoid allowing the suspicion to take place of the legal proof. There is a long distance between 'may be true' and 'must be true'. When a case rests squarely on circumstantial evidence, an 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. Cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offence beyond any reasonable doubt. The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. In other words 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 it must show that in all human probabilities the act must have been done by the accused. 25. In the present case, on following grounds, serious doubt is created upon the prosecution story, which are as follows: "A. Admittedly, there is no evidence on record to prove the fact that deceased Smt. Umi and accused appellant were last seen together. The only evidence is that accused appellant was seen when he was going towards the place of occurrence alongwith gun. Therefore, the evidence of last seen cannot be considered as an evidence so as to connect accused appellant with the crime. B. It is true that in the FSL report of articles (Ex. P/37), blood of 'O' group was found upon the blood stained stone, blood smeared soil, control soil, Orna and Kachali of the deceased, which was recovered on spot, but admittedly, no article belonging to the accused appellant was sent alongwith aforesaid articles to ascertain the blood group. Therefore, on the basis of FSL report (Ex. P/37) it cannot be presumed that this circumstance is proved against the accused appellant. C. In the ballistic report of FSL (Ex. Therefore, on the basis of FSL report (Ex. P/37) it cannot be presumed that this circumstance is proved against the accused appellant. C. In the ballistic report of FSL (Ex. P/14) although a report is given that SBML country made gun which is said to be recovered as per information of the accused appellant is serviceable but it is reported that the definite time of its last fire could not be ascertained. In view of the above, it is obvious that this circumstance is also not sufficient to connect the accused appellant with the alleged crime of murder. D. There is report of FSL, which is result of examination of pallets ¼NjsZ½ . Upon those pallets taken from the body of the deceased, human blood was found but no blood group was ascertained at the time of chemical examination. It is also relevant to observe that none of the pallets was recovered at the instance of the accused appellant and sent for examination. Therefore, the report (Ex. P/41) of pallets cannot be used as an evidence to punish the accused appellant on the basis of circumstantial evidence." 26. Admittedly, the accused appellant has been acquitted from the charge levelled against him under Section 394 and 447 IPC, therefore, obviously it is a case in which prosecution has failed to establish motive against the accused appellant for committing offence of murder of deceased Smt. Umi. In view of the fact that prosecution has failed to prove the chain of circumstances before the court, therefore, finding of conviction is not sustainable in law. 27. In view of the above discussion, this cr. appeal is partly allowed. The conviction and sentence passed against the accused appellant Moti Lal @ Moti Ram by the learned Addl. Sessions Judge (FT), Bali in Sessions Case No. 19/2006 vide judgment dated 20.12.2006 for the offences under Section 3/25 and 3/27 of the Arms Act is hereby maintained, but while giving benefit of doubt to the accused appellant, the conviction and sentence for the offence under Section 302 IPC is hereby quashed. The accused appellant has already served sentence of more than ten years, therefore the accused appellant may be set at liberty unless required in any other case. 28. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs. The accused appellant has already served sentence of more than ten years, therefore the accused appellant may be set at liberty unless required in any other case. 28. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs. 20,000/- and 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.