JUDGMENT : GOPAL KRISHAN VYAS, J. 1. The instant criminal appeal has been filed by appellant-Ramdhan, under Section 374 (2) Cr.P.C challenging the judgment and sentence dated 28.01.2011 passed by learned Sessions Judge, Shahpura, Bhilwara in Session Case No. 64/2009 (18/2008) whereby the learned trial court convicted the accused appellant for offence under Sections 302 of IPC and Section 3/25 of the Arms Act and passed following sentence: 302 of IPC Life imprisonment along with fine of Rs. 500/-. In default of payment of fine to further undergo one month's additional simple imprisonment. 3/25 of the Arms Act. Three years' Rigorous Imprisonment along fine of Rs. 200/-. In default of payment of fine to further undergo one month's additional simple imprisonment. 2. Briefly stated, the facts of the case are that a verbal complaint was lodged by Magna Gurjar (PW.1) at Police Station-Phuliakalan, District Bhilwara on 14.02.2008 at M.G Hospital, Bhilwara, in which allegations were levelled by him that marriage of his sister, namely, Smt. Ajan was solemnized with accused appellant Ramdhan and from their wedlock, three issues were born. Yesterday, on 13.02.2008 at about 08.00 PM when he was at his residence, his nephew (sister's son), namely, Bunty came to his house and said that his father has inflicted gunshot injury in the stomach of his mother. Upon receiving such information, the complainant and his two sisters went to the house of deceased, Smt. Ajan and saw that deceased was lying on the floor injured and blood was oozing out. According to complainant, her husband-Ramdhan (appellant) was also sitting there, and upon enquiry being made by the complainant from his sister Smt. Ajan with regard incident, then Smt. Ajan informed that my husband-Ramdhan inflicted gunshot injury to me. The complainant and Nemichand and Prhalad Kumawat, took injured Smt. Ajan to hospital at Shahpura, where after examining the injured, she was referred to Bhilwara Hopsital. Injured Smt. Ajan, wife of the appellant was admitted at M.G Hopsital, Bhilwara. However, while under treatment on 14.02.2008 in the morning at 04.00 AM she died. As per complainant, accused appellant-Ramdhan caused gunshot injury to deceased Smt. Ajan and due to said injury she died. 3. Upon the aforesaid verbal report, Sabir Khan S.I), after recording the verbal information, registered a case vide F.I.R No. 25/2008 at 02.30 PM on 14.02.2008 and commenced the investigation. 4. As per complainant, accused appellant-Ramdhan caused gunshot injury to deceased Smt. Ajan and due to said injury she died. 3. Upon the aforesaid verbal report, Sabir Khan S.I), after recording the verbal information, registered a case vide F.I.R No. 25/2008 at 02.30 PM on 14.02.2008 and commenced the investigation. 4. During investigation, site plan of the place of occurrence (Ex.P/11) was prepared in the presence of two witnesses, namely, Hari Ram and Indulal. The pieces of bangles, blood stained mud/soil and control soil were taken in possession vide Ex.P/12 at 05.00 PM on 14.02.2008 The “Panchnama” (Ex.P/16) of the dead body was prepared in M.G Hospital at 09.00 AM on 14.02.2008 The dead of the deceased was subjected to postmortem and postmortem report (Ex.P/18) was obtained by the investigating officer, in which an opinion was given by the Medical Board that deceased died due to hemorrhage shock and due to multiple organ injury of gunshot. 5. After postmortem, the dead body of the deceased was handed over to complainant-Magnla Gurjar at 07.00 AM on 14.02.2008 The accused appellant was arrested and after arrest, information was given by him vide Ex.P/29 on 15.09.2008 at 02.15 PM for recovery of gun from his residential house and pursuant to said information, gun was recovered vide recovery memo (Ex.P/13) on 17.02.2008 at 11.15 AM in the presence of two independent witnesses, namely, Sojiram S/o Kanhaiyalal and Chhota S/o Jagannath Gujar. The weapon-gun as well as other articles were sent for chemical examination to the FSL vide communication dated 17.03.2008 by the S.P, District Bhilwara vide Ex.P/21. 6. During investigation, it was also found that gun, which is said to be recovered on the basis of information given by accused appellant, was belonging to one Ramswaroop, who was not alive on the date of incident. The investigating officer after recording statements of all the prosecution witnesses including two eyewitnesses viz. Ramraj (PW-.2) & Bunty (PW-.3), both sons of the deceased. After investigation, the S.H.O, Police Station Phuliakalan, District Barmer, filed charge sheet against the accused appellant in the court of A.C.J.M, Shahpura, under Sections 302 of IPC and 3/25 of the Arms Act and the learned Magistrate committed the case for trial to the court of Sessions Judge because offence u/s 302 IPC is triable by a Sessions Court. 7. The learned Sessions Judge, Bhilwara, transferred the case for trial to the court of Addl. 7. The learned Sessions Judge, Bhilwara, transferred the case for trial to the court of Addl. Sessions Judge No. 2, Bhilwara, but later on the case was transferred to the court of Addl. Sessions Judge, Shahpura, District Bhilwara on 11.11.2009, where final trial was conducted by the said court. 8. The learned trial court after framing charge against accused appellant under Section 302 IPC and Section 3/25 of Arms Act proceeded to record evidence of the prosecution. In support of prosecution case, statements of 32 witnesses were recorded and 27 documents were exhibited from the prosecution side. Thereafter, statements of accused appellant were recorded under Section 313 Cr.P.C, in which while denying the allegations made by the prosecution witnesses, an explanation was given by the accused appellant that he has been falsely implicated in this case because when he reached his house, he saw that his wife was lying in injured condition, therefore, he immediately took her hospital for treatment. In defence no evidence was produced by the appellant, therefore, the learned trial court finally heard arguments on merit. 9. The learned trial court after considering the evidence on record and relying upon the recovery of gun and so-called extra judicial confession recorded finding against the accused appellant for offence under Section 302 of IPC and Section 3/25 of the Arms Act and vide judgment impugned dated 28.01.2011 convicted the appellant for offence under Sections 302 IPC & Section 3/25 of the Arms Act and passed sentence as mentioned above. In this appeal, the appellant has challenged the validity of judgment on various grounds. 10. Mr. Doongar Singh, learned counsel for the appellant invited our attention towards the fact that the entire prosecution case is based upon testimony of 32 witnesses, out of which, there are two eyewitness viz. PW-.2-Ramraj and PW-.3 Bunty, who were nine and seven years of age respectively on the date of date of incident. It is also argued that not only eyewitness PW.2-Ramraj, PW.3-Bunty (sons of the deceased) but also complainant-PW.1-Magna Gurjar (brother of deceased) himself turned hostile and did not support the prosecution case. Similarly, other witnesses, PW.7-Bhanwarlal, neighborer of deceased and appellant, PW.8-Onad, PW.9-Neimichand, PW.10-Prahlad, PW.11-Ramnayran, PW.12 Ramnarayan Jat, PW.13-Ms. Bhula Gurjar, PW.14-Hari Ram, PW.15 Sojiram, PW.16-Gheesu, PW.24 Mahaveer, PW.25-Chhotu, PW. 30 Hindulal and PW.31-Gheesu, who are neighbourers and witness of recovery of gun, turned hostile and did not support the prosecution case. Similarly, other witnesses, PW.7-Bhanwarlal, neighborer of deceased and appellant, PW.8-Onad, PW.9-Neimichand, PW.10-Prahlad, PW.11-Ramnayran, PW.12 Ramnarayan Jat, PW.13-Ms. Bhula Gurjar, PW.14-Hari Ram, PW.15 Sojiram, PW.16-Gheesu, PW.24 Mahaveer, PW.25-Chhotu, PW. 30 Hindulal and PW.31-Gheesu, who are neighbourers and witness of recovery of gun, turned hostile and did not support the prosecution case. 11. It is further argued by the counsel for the appellant that there is no evidence to prove the fact as to how the gun of late Sh. Ramswaroop came into the possession of the accused appellant because as per prosecution case, the owner of gun was one Ramswaroop, who died prior to the said incident and the injury which is said to be caused by the gun recovered as per information given by accused appellant, has not been proved beyond reasonable doubt because in the communication dated 16.03.2008 sent by the Superintendent of Police to the FSL, it is nowhere stated that stone were recovered from the body of the deceased, more so, recovered “Chharra/s” recovered from the body of deceased were sent to the FSL along with other articles but as per FSL report, stones were found at the time of examination by the FSL. Learned counsel for the appellant vehemently argued that even if it is accepted that gun which is said to be revered was serviceable but it has not been proved that injury found upon the dead body of the deceased, was caused by the same gun recovered as per information given by accused appellant. 12. Learned counsel for the appellant submitted that recovery of gun has not been proved beyond reasonable doubt because both the witnesses of recovery, namely, Sojiram and Hariram, turned hostile and did not support the prosecution case. Therefore, when the recovery of weapon itself is doubtful, and eyewitness of the incident viz. PW.2 and PW.3 (Ramraj and Bunty) and most of the independent witnesses turned hostile, then obviously the finding of guilt recorded by the trial court against the appellant for committing offence under Section 302 IPC is not sustainable in law. 13. Therefore, when the recovery of weapon itself is doubtful, and eyewitness of the incident viz. PW.2 and PW.3 (Ramraj and Bunty) and most of the independent witnesses turned hostile, then obviously the finding of guilt recorded by the trial court against the appellant for committing offence under Section 302 IPC is not sustainable in law. 13. Learned counsel for the appellant vehemently argued that it is a case in which accused appellant has been implicated on the basis of so-called dying declaration, which is said to be made before the sister of deceased, namely, PW.5-Manbhar and PW.6-Chhoti Gurjar and father of the deceased PW.4-Benath, but as per evidence on record, presence of these witnesses at the residence of deceased because complainant-Magna Gurjar, son of PW.4-Benath, and brother of deceased nowhere stated that his father and sisters were present when he reached at the residence of the deceased upon the information given by son of deceased Bunty (PW-.3). Therefore, he submitted that the entire prosecution case is seriously doubtful because neither recovery is proved nor the so-called dying declaration is proved beyond doubt. 14. Learned counsel for the accused appellant further argued that in absence of any direct evidence although conviction can be based on the basis of circumstantial evidence as judgment of Hon'ble Apex Court in the case of Sharad Birdhichand v. Sarda, reported in (1984) 4 SCC 116 : AIR 1984 SC 1622 , but here in this case, the prosecution has come out with direct evidence of eyewitness, but both the eyewitnesses viz. PW.2 and PW.3, Ramraj and Bunty turned hostile and did not support the prosecution case but the trial court on the basis of so-called recovery of gun, belong to one Ramswaroop, who died prior to the incident and on the basis of statements of Mohanlal, brother of Ramswaroop, owner of gun that before his death, the gun was taken by Ramdhan (appellant) and the same was not returned back. 15. Learned counsel for the appellant further argued that a false and fabricated story is concocted by the complainant party so as to implicate the appellant falsely with the crime but the complainant-Magna, eyewitness Ramrajand Bunty, so also, most of the witnesses of the area have not supported the prosecution case and turned hostile. 15. Learned counsel for the appellant further argued that a false and fabricated story is concocted by the complainant party so as to implicate the appellant falsely with the crime but the complainant-Magna, eyewitness Ramrajand Bunty, so also, most of the witnesses of the area have not supported the prosecution case and turned hostile. Therefore, the judgment impugned may kindly be quashed and the accused appellant may be acquitted from the charges levelled against him because the prosecution has failed to prove its case beyond reasonable doubt. 16. Per contra, learned Public Prosecutor vehemently argued that although eyewitness viz. PW.2 Ramraj, PW.3 Bunty and complainant PW.1 Magna Ram, turned hostile, but there is other reliable and trustworthy evidence to connect the accused appellant with the crime. The learned trial court while considering the trustworthy and reliable evidence of dying declaration made before the father of deceased PW.4 Benath and sisters viz. PW.5 Manbhar and PW.6 Chhoti Gurjar held the accused appellant guilty for commission of the offences. According to learned Public Prosecutor, there is no reason to disbelieve the testimonies of these three witnesses because all these three witnesses categorically stated before the court on oath that dying declaration was made by the deceased when they reached at her residence before her death upon information received by them. 17. Learned Public Prosecutor further submitted that although two witnesses of recovery of gun viz. PW.15 Sojiram and PW. 25 Chhota turned hostile but they accepted their signatures upon the recovery memo (Ex.P/13), therefore, even if they turned hostile, their testimony can be relied upon to prove the recovery. As per learned Public Prosecutor, the investigating officer has categorically proved the recovery of gun at the instance of the accused appellant, therefore, the finding of guilt recorded by the trial court on the basis of dying declaration, held the accused appellant guilty and convicted him for the offences under Section 302 IPC and Section 3/25 of the Arms Act for committing murder of his own wife. 18. 18. Learned Public Prosecutor vehemently argued that it is a case in which presumption under Section 106 of the Evidence Act is required to be drawn because deceased wife/of accused died in the house of accused appellant, therefore, it was the duty of the appellant to explain as to how she died but no satisfactory explanation has been given by him in his statements under Section 313 Cr.P.C, therefore, the trial court rightly held the accused appellant guilty for committing offence of murder of his own wife. Learned Public Prosecutor further argued that in view of judgment render by Hon'ble Apex Court in the case of Ramesh v. State of Haryana reported in 2017 Crl.L.J. 352, and dying declaration can be accepted even if deceased died in the house of her in-laws. He, therefore, prayed that this appeal may kindly be dismissed. 19. After hearing the learned counsel for the parties, we have perused the statements of the witnesses and record of the case. In support of prosecution case, statements of 32 witnesses were recorded during trial. Out of 32 witnesses, PW.1-Madanlal (author of FIR), eyewitnesses PW.2-Ramraj and PW.3-Bunty (both sons of deceased) turned hostile and did not support the prosecution case. The witness PW.4-Benath (father of the deceased) stated in his statements that the day on which the occurrence took place, Bunty (PW.3) came and informed that his father caused gunshot injury to his mother, upon receiving the said information, he immediately went to the house of his daughter and saw that his daughter was lying on the floor and upon making enquiry, it was informed by her that her husband inflicted injury by gun. 20. In the cross-examination the said witnesses deposed that what was the reason of quarrel, I do not know but neither PW.1-Magna, nor PW.2-Ramraj and PW.3-Bunty, so-called eyewitness of the case, said in their statement that Benath (PW.4) came on spot where the occurrence took place. If none of the witnesses said that father of deceased came on the spot, then presence of witnesses, Benath become seriously doubtful. 21. If none of the witnesses said that father of deceased came on the spot, then presence of witnesses, Benath become seriously doubtful. 21. Similarly, PW.5-Manbhar and PW.6-Chhoti, sister of the deceased stated that upon enquiry deceased, agen informed them about gunshot injury inflicted by her husband but presence of both these witnesses is also doubtful because complainant PW.1-Magna (brother of deceased), PW.2 Ramraj and PW.3 Bunty (sons of deceased) nowhere disclosed in their statements that these witnesses came at the house of deceased and any dying declaration was made by the deceased in front of them. In view of above evidence it is obvious that presence of PW.5 Manbhar and PW.6 Chhoti, sisters of deceased, has not been proved. 22. PW.7-Bhanwarlal, PW.8-Onad, PW.9-Nemichand, PW.10-Prahlad, PW.11-Ramnarayan, PW.12-Ramnarayan S/o Ladu, PW.13-Bhula, PW.14-Hari Ram, PW.15-Sojiram (independent witness of recovery of gun) vide Ex.P/15 and PW.16-Gheesu, all turned hostile and did not support the prosecution case. PW.17 and PW.18, Dr. Dinesh Gupta and Dr. Ajay Narayan Mathur, who were the members of the Medical Board to conduct postmortem of body of the deceased at M.G Hospital, Bhilwara. The witness PW.19-Dr. Kalicharan, categorically stated in his statements that on 13.02.2008 when he was working as Medical Officer at Govt. Hospital, Shahpura, Smt. agen W/o Ramdhan Gurjar was brought in the hospital by the complainant, Magna and after providing some treatment she was referred for further treatment at M.G Hospital, Bhilwara. In the cross-examination, it is stated by him that only brother of deceased viz. PW.1-Magna came with injured and the injured was unconscious. 23. PW.20-Lalchand was working on the post of Constable at Police Station Phulia Kalla. He is the witness who received the articles at police station. PW.21-Ummed Singh Rathore, was working as Head Constable, has proved that the articles were received and taken in possession to put in the “Malkhana”. PW.22-Laluram, who was working as Head Constable in the office of Superintendent of Police, Bhilwara, has categorically stated that six samples marked as A, B, C, D, E & Mark-I in sealed condition were received by him. PW.23-Kishan Singh was posted as S.I in Police Station Phulia Kallan on 14.02.2008 and on that date, he was the in-charge of the police station. This witness categorically stated that FIR was registered by S.I-Sabir Khan upon oral information given by Magna Gurjar (PW.1). PW.24-Mahaveer and PW.25-Chhotu turned hostile and did not support the prosecution case. PW.23-Kishan Singh was posted as S.I in Police Station Phulia Kallan on 14.02.2008 and on that date, he was the in-charge of the police station. This witness categorically stated that FIR was registered by S.I-Sabir Khan upon oral information given by Magna Gurjar (PW.1). PW.24-Mahaveer and PW.25-Chhotu turned hostile and did not support the prosecution case. 24. The witness PW.26-Ram Kumar, categorically proved that gun which was recovered in this case, was belonging to his brother late Ramswaroop, who categorically stated that he did not know as to how gun came in possession of the accused appellant. It is also stated by said witness that I do not know whether my brother Ramswaroop and Ramdhan (appellant) were having any relation or they were friend. PW.27-Mohanlal, stated that late Sh. Ramswaroop Meena was having licence of the gun and I do not know what happened to that gun and further said Ramswaroop has already died. 25. PW.28-Arjun Lal, is the witness who was working as Head Constable Armor. The said witness categorically stated before the court that one gun was taken by him for test and upon test it was found that said gun was serviceable, therefore, he gave inspection report Ex.P/26. PW.29-Sabir Khan (S.I) was posted at police Station Shahpura. The said witness said that on the date of incident, as per instruction of C.O, Bhilwara, he went at M.G Hospital, Bhilwara where, he recorded the statements of Magna, upon which F.I.R (Ex.P/1) was registered. This witness proved the investigation conducted by him but in the cross-examination, it is categorically stated by him that, ^^mDr izFke lwpuk fjiksVZ izkFkhZ ds crk;s vqulkj tqckuh esjs le{k esjs jhMj }kjk eSua fy[kokbZA ;g lgh gS fd nkSjkus vuqla/kku jhMj ds c;ku i=koyh esa ugh fy;s x;sA In the cross-examination, said witness PW-26 further categorically that, “……….. ;g lgh gS fd cjken'kqnk cUnqd ij vaxqfy;ksa ds fu'kku ckcr dksbZ vuqla/kku ugha fd;k gSA D;ksfd cjken'kqnk cUnqd eqyfte dh nQk 27 dh bRryk ds rgr cjken dh xbZ FkhA ,e-vks- lkgc }kjk cjken'kqnk Njjksa ds ckjs esa D;k jk; ekaxh gS ;g i=koyh esa vafdr ugh gSA e`Ÿkdk ,stu o eqyfte jke/ku ds vkilh ifjokfjd lac/kksa ds ckjs esa dksbZ fo'ks"k tkudkjh i=koyh esa ugh yh xbZA^^ 26. PW.30-Hindulal turned hostile and refused to prove site plan (Ex.P/11) and recovery of bangles and blood stained soil from the place of occurrence. PW.30-Hindulal turned hostile and refused to prove site plan (Ex.P/11) and recovery of bangles and blood stained soil from the place of occurrence. PW.31-Gheesu, turned hostile and refused to say anything in favour of prosecution. PW.32-Abdul Kayyum is the witness who was working as Constable at Police Station-Phulia Kallan on 29.03.2008, on that date, as per his statements, the recovered gun was handed over by him by one Ummed Singh, H.C from “Malkhana” and some was taken by him for test to armor and after test the gun was deposited in the “Malkhana”. 27. Upon assessment of entire evidence of prosecution, it is revealed that the author of the F.I.R (Ex.P/1) PW.1-Magna (real brother of the deceased) turned hostile and not proved the fact that FIR was registered upon his statement, nor has he made any allegation against the accused appellant. The other two eyewitness viz. PW.2 Ramraj and PW.3 Bunty, both sons of the deceased, turned hostile and did not support the prosecution case. The learned trial court relied upon the testimonies of PW.4-Benath (father of the deceased), PW.5-Manbhar and PW.6-Chhoti, before whom the so-called dying declaration was given by deceased, agen, for causing gunshot injury by accused appellant. But, it is very strange that in the statements of the eyewitness, it is nowhere disclosed by them that these persons were present when the occurrence took place. Further, Dr. Kalicharan (PW.19) who was working as Medical Officer at Satellite Hospital, Shahpura, categorically said that on 13.02.2008 when he was working as Medical Officer, Smt. agen (deceased) was taken to the hospital by the brother Magna only, no other person was accompanying him. In our opinion, the presence of witnesses PW.4-Benath (father of the deceased), PW.5-Manbhar and PW.6-Chhoti (sisters of deceased) is seriously doubtful because none of these witnesses went along with Magna, for treatment of injured at Hospital and why police was not informed by the father Benath immediately, therefore, the presence of these witnesses and the alleged dying declaration which is allegedly made by deceased before them, is seriously doubtful. Therefore, the finding recorded by the learned trial court against the accused appellant for his involvement on the basis of dying declaration, cannot be treated to be proved. 28. Therefore, the finding recorded by the learned trial court against the accused appellant for his involvement on the basis of dying declaration, cannot be treated to be proved. 28. Admittedly, the gun was recovered vide recovery memo (Ex.P/13) on 17.02.2008 in the presence of two independent witnesses, namely, Sojiram and Chhotu S/o Jagannath, however, only one witness Sojiram (PW.15) was examined in the trial but this witness, turned hostile and did not support the recovery of the gun at the instance of the accused appellant. 29. It will be relevant to mention here that admittedly, the gun recovered alleged to be recovered from the appellant was belonging to one Ramswaroop (who died prior to the incident and a licence of the said gun was in his name). PW.26-Ram Kumar, brother of Ramswaroop, categorically stated in his statements that licence holder of the gun in question was his brother Ramswaroop Meena, who died before the incident in question and said that I do not know as to how the appellant came in possession of the said gun, and said that in the village heard that gun of his brother was lying with accused appellant-Ramdhan. 30. Upon consideration of the statements of recovery witness viz. PW.15-Soji Ram and witness PW.26-Ram Kumar, we are of the opinion that prosecution has failed to prove the recovery of gun from the accused appellant. The investigating officer gave statement that pieces of pallet (Chharra) were recovered from the body of deceased and the same were sent for examination to the FSL. It is, however, very strange that in the FSL report, it is reported that two small stone pieces contained in Packet ‘1’ were received. It is very strange that in FSL report dated 26.10.2009, it has been observed that in Packet-1 two small stone pieces weighing 0.0555 grams were received, whereas in another report after examination, it is reported that examination was made of two pallets, however, the same were not sufficient for test. 31. In view of above evidence of prosecution, we are of the opinion that recovery of gun is seriously doubtful. Admittedly the gun in question was belonging to one Ramswaroop, because licence was in his name, and as per FSL report, though same was not exhibited in the trial, there is major contraction whether stones were sent for examination or the pallets (Chharra/s) were sent to the FSL. Admittedly the gun in question was belonging to one Ramswaroop, because licence was in his name, and as per FSL report, though same was not exhibited in the trial, there is major contraction whether stones were sent for examination or the pallets (Chharra/s) were sent to the FSL. It is thus absolutely clear that the finding of trial court on the basis of so-called dying declaration and recovery of gun from the accused appellant has not been proved, therefore, whole prosecution become seriously doubtful. 32. We are thus of the firm opinion that in absence of any direct evidence the prosecution is required to prove its case beyond reasonable doubt on the basis of circumstances evidence. The entire prosecution case was based upon the testimonies of important eyewitnesses viz. PW.1-Magnla, PW.2-Ramraj, and PW.3-Bunty, but these witnesses turned hostile, the learned trial court while relying upon the evidence of so-called dying declaration, alleged to be made before PW.4 Benath, PW.5-Manbhar and PW.6-Chhoti, father and sisters of the deceased, held accused appellant guilty but finding of guilt recorded by the trial court is totally perverse and cannot be relied upon to convict the accused appellant because presence of the witnesses of dying declaration itself is seriously doubtful. 33. In the case of Sharad Birdhichand Sharda (surpa), the Hon'ble Apex Court has held that the prosecution is required to prove its case beyond reasonable doubt, if the allegation is based on circumstantial evidence. The following parameters/guidelines are laid down by the Hon'ble Supreme Court, 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. 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 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. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence.” 34. Upon consideration of entire evidence in the light of aforesaid golden principles, we are of the opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt, and therefore, it is a case in which trial court has erred in holding the accused appellant guilty for commission of offence under Section 302 of IPC. 35. Consequently, this criminal appeal filed by the accused appellant-Ramdhan is allowed while giving him benefit of doubt. The judgment dated 28.01.2011 passed by learned Sessions Judge, Shahpura, Bhilwara in Session Case No. 64/2009 (18/2008) convicting and sentencing the accused appellant for offence under Sections 302 of IPC and Section 3/25 of the Arms Act, Is hereby quashed and set aside. The accused is behind the bars, he may be set at free forthwith, if not required in any other case. 36. Keeping in view, however, the provisions of Section 437A Cr.P.C the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs. The accused is behind the bars, he may be set at free forthwith, if not required in any other case. 36. Keeping in view, however, the provisions of Section 437A Cr.P.C the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs. 20,000/- and a surety bond in the like amount each, 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.