JUDGMENT : The arguments of this case concluded on 3.4.2018. We then passed the following order : Heard Sri V. P. Srivastava, learned counsel for the appellant assisted by Sri Saghir Ahmad and Sri J. K. Upadhyay, learned A.G.A. for the State. We are making the operative order here and now. We will give reasons later. The appeal is allowed. The impugned judgement and order dated 23.12.2010 passed by Additional District and Session Judge, Court No. 4, Ballia in S.T. Nos. 263 of 2008 and 281 of 2008 is hereby set-aside. The appellant is acquitted of all the charges. He is in jail. He shall be released forthwith unless he is wanted in some other case subject to his complying with the provisions of Section 437-A of Cr.P.C. The parties shall bear their own costs. Here are the reasons : 1. This appeal has been preferred by appellant-Jata Shanker Yadav against the judgment and order dated 23.12.2010 passed by Additional District and Sessions Judge, Court No. 4, Ballia in S.T. No. 263 of 2008 (State vs. Jata Shanker Yadav) and S.T. No. 281 of 2008 (State vs. Jata Shanker Yadav) convicting and sentencing the appellant for imprisonment of life and a fine of Rs. 5000/-and in default of payment of fine two years additional rigorous imprisonment under Section 302 I.P.C. and two years rigorous imprisonment and a fine of Rs. 2000/-and in default of payment of fine six months additional rigorous imprisonment under Section 3/25 Arms Act. 2. The prosecution case as unfolded during the trial is that the accused-appellant gave a written report at police station Garwar on 05.12.2007 at about 11:30 P.M. stating therein that he was a resident of village Beerpur, police station Garwar, district Ballia. In the night of 4/5.12.2007, as usual, his wife Pushpa Devi and daughter-Nandani were sleeping in their room on a single bed and he was sleeping in the adjoining hut. The courtyard of his house was illuminated by the light shredded by a lit lantern. At about 11 P.M., he suddenly heard the sound of gunshot on which he got up and sat up cautiously and he then heard the shrieks of his daughter-Nandani and saw Hari Narayan Yadav and Chhotey Lal coming out of his wife's room mumbling that their work had been done. At about 11 P.M., he suddenly heard the sound of gunshot on which he got up and sat up cautiously and he then heard the shrieks of his daughter-Nandani and saw Hari Narayan Yadav and Chhotey Lal coming out of his wife's room mumbling that their work had been done. On his making noise, the accused, brandishing their country made pistol, opened the latch of the main gate of his house and ran towards the house of Ram Aasrey. In the meantime, his daughter shouted that her mother had been shot dead. On hearing the voice of his daughter, his uncle Madan Yadav, Hare Ram Yadav sons of late Sri Baldev Yadav and Nagendra son of Hardev Yadav and several other persons also arrived at the place of occurrence. He chased the accused with them and tried to catch them on which their two other companions who were standing outside threatened to shoot them in case they came forward on which the informant and the other villagers stopped and in the meantime miscreants ran away. He returned to his house along with the villagers and saw his wife lying in a pool of blood on her bed, blood was oozing out of her wound. The informant and the other witnesses had seen and identified the accused in the light of lantern and torch. There was old enmity between the miscreants and the informant and it was on account of that enmity, they had committed the murder of his wife. 3. On the basis of the written report of the occurrence Ext. Kha2, case crime no. 184 of 2007 was registered under Section 302 I.P.C. at police station Garwar against Hari Narayan Yadav, Chhotey Lal and two unknown persons. 4. The investigation of the case was taken up by P. W. 7 Vinod Kumar Tiwari who reached the place of occurrence and held inquest on the body of deceased-Pushpa Devi and prepared the inquest report and other connected documents and also inspected the place of occurrence and prepared it's site plan in his own handwriting. Thereafter, he got the dead body of deceased-Pushpa Devi sealed and sent it for postmortem examination. The postmortem on the dead body of Pushpa Devi was conducted on 5.12.2007 by P. W. 9 Dr. A. K. Singh. On 5.12.2007, he also prepared the postmortem report Ext. Ka19. Thereafter, he got the dead body of deceased-Pushpa Devi sealed and sent it for postmortem examination. The postmortem on the dead body of Pushpa Devi was conducted on 5.12.2007 by P. W. 9 Dr. A. K. Singh. On 5.12.2007, he also prepared the postmortem report Ext. Ka19. The postmortem of the deceased indicates following antemortem injuries on her body : lacerated wound on right side forehead 10 cm x 12 cm x brain deep bullet .303 (one piece) size 2.5 cm x 0.5 cm found on left temporal area burning present, bulging of brain tissue from entrance wound. The cause of death was stated to be due to hemorrhage and shock as a result of antemortem injury. 5. Upon the transfer of P. W. 7 S.H.O. Vinod Kumar Tiwari, the investigation of the case was entrusted to P. W. 5 S.I. D.K. Pandey. The witnesses whose statements were recorded during investigation had fully supported the prosecution case as spelt out in the F.I.R. Ext. Kha1. During the course of the investigation, the police informer on 16.4.2008 informed the investigating officer that appellant-Jata Shanker Yadav who suspected that his wife was having an illicit affair with one Dhanesh, had committed the murder of his wife and thereafter, falsely implicated Hari Narain Yadav and Chhotey Lal. Thereafter, it appears that an application was given by P. W. 1 Asmawati Devi, cousin sister of Hari Narain Yadav and Chhotey Lal and Indu Devi sister-in-law of Hari Narain Yadav and Chhotey Lal before S.P. Ballia supported by their affidavits on 14.08.2008 Ext. Ka1 stating therein that although appellant-Jata Shanker Yadav had committed the murder of his wife on account of the fact that she was having an illicit affair with Dhanesh resident of the same village but he had falsely implicated Hari Narain Yadav and Chhotey Lal in the murder of his wife. On 2.9.2008, appellant-Jata Shanker Yadav was arrested and sent to jail on 3.9.2008. In pursuance of the alleged disclosure statement of the appellant recorded before the police after his arrest, the country made pistol with an empty cartridge stuck in it's barrel was recovered on the pointing out of the appellant from his house. Both the pistol and the cartridge were seized separately and sent for forensic examination and recovery memo of the aforesaid articles Ext. Ka3 was prepared. On the basis of the recovery memo Ext. Ka3, case crime no. Both the pistol and the cartridge were seized separately and sent for forensic examination and recovery memo of the aforesaid articles Ext. Ka3 was prepared. On the basis of the recovery memo Ext. Ka3, case crime no. 94 of 2008, u/s 3/25 Arms Act was registered at police station Garwar, district Ballia against the accused-appellant, chek F.I.R. and the relevant G.D. entry were also prepared. The forensic report of the country made pistol and the empty cartridge stuck in it's barrel dated 4 .4.2008 was brought on record and marked as Ext. Ka20. 6. The I.O. after completing the investigation, filed charge-sheet against the accused-appellant u/s 302 I.P.C. before C.J.M. Ballia. 7. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, C.J.M. Ballia committed the case for the trial of the accused to the Court of Sessions Judge, Ballia where the case was registered as S.T. No. 263 of 2008. The case under Section 3/25 Arms Act was also committed for trial to the Court of Sessions Judge and registered as S.T. No. 281 of 2008. Both the sessions trial were made over from the Court of Sessions Judge, Ballia to the Court of Additional District and Sessions Judge, Court No. 4, Ballia for trial of the accused who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as the accused, framed charge under Section 302 I.P.C. in S.T. No. 263 of 2008 and under Section 3/25 Arms Act in S.T. No. 281 of 2008. The accused-appellant abjured the charges and claimed trial. 8. The prosecution in order to establish the charges framed against the accused-appellant examined as many as 10 witnesses namely P. W. 1 Asmawati Devi and P. W. 4 P. N. Yadav as witnesses of fact while P. W. 5 S.I. D.K. Pandey, second investigating officer of the case who had completed the investigation and filed charge-sheet against the accused-appellant, P. W. 6 Ram Saran Kushwaha who had prepared the chek F.I.R. Ext. Ka5 and the relevant G.D. entry Ext. Ka6 pertaining to the case crime no. 184 of 2007, under Section 302 I.P.C. and the chek F.I.R. Ext. Ka17 of case crime no. 94 of 2008, under Section 3/25 Arms Act and the G.D. entry Ext. Ka5 and the relevant G.D. entry Ext. Ka6 pertaining to the case crime no. 184 of 2007, under Section 302 I.P.C. and the chek F.I.R. Ext. Ka17 of case crime no. 94 of 2008, under Section 3/25 Arms Act and the G.D. entry Ext. Ka8, P.W. 7 S.I. Vinod Kumar Tiwari, the first investigating officer of the case who had conducted the inquest on the body of the deceased and prepared and proved her inquest report Ext. Ka7 and other connected documents namely photo lash, specimen seal, police form no. 13 and letter addressed to C.M.O. Ext. Ka8 to Ext. Ka12, site plan of the crime scene Ext. Ka13 and the site plan of the place from where the accused was arrested as Ext. Ka15, P. W. 8 S.I. Gulab Chand, the I.O. of the case under Section 3/25 Arms Act who had investigated the aforesaid case and filed charge-sheet Ext. Ka5 against the accused in the aforesaid case, P. W. 9 Dr. A. K. Singh who had conducted the postmortem on the body of the deceased and prepared and proved her postmortem report Ext. Ka19, P.W. 2 Nand Ji Yadav and P. W. 10 Constable Vinod Kumar Yadav, the witnesses of recovery of the crime weapon from the house of the accused-appellant on his pointing out Ext. Ka14 were produced as formal witnesses. 9. The prosecution had also adduced documentary evidence consisting of application given by Indu Devi wife of Abhimanyu and Asmawati Devi to S.P. Balia Ext. Ka1, affidavit of Asmawati Devi Ext. Ka2, recovery memo of crime weapon Ext. Ka3, charge-sheet filed in case crime no. 184 of 2007 Ext. Ka4, chek F.I.R. of case crime no. 184 of 2007 Ext. Ka5, G.D. entry Ext. Ka6, inquest report Ext. Ka7, photo lash Ext. Ka8, specimen seal Ext. Ka9, police form no. 13 Ext. Ka10, letter addressed to C.M.O. Ext. Ka11, copy of the G.D. Ext. Ka12, site plan of the place of occurrence Ext. Ka13, site plan of the spot from where the crime weapon was recovered Ext. Ka14, site plan of the place of recovery of crime weapon Ext. Ka15, charge-sheet filed in case crime no. 94 of 2008 Ext. Ka16, chek F.I.R. of case crime no. 94 of 2008, copy of G.D. Ext. Ka18, postmortem report Ext. Ka19, reports of forensic laboratory Ext. Ka20, Ext. Ka21 and Ext. Ka22. 10. Ka14, site plan of the place of recovery of crime weapon Ext. Ka15, charge-sheet filed in case crime no. 94 of 2008 Ext. Ka16, chek F.I.R. of case crime no. 94 of 2008, copy of G.D. Ext. Ka18, postmortem report Ext. Ka19, reports of forensic laboratory Ext. Ka20, Ext. Ka21 and Ext. Ka22. 10. The accused-appellant in his statement recorded under Section 313 Cr.P.C. stated that after his wife was murdered by Hari Narain Yadav and Chhotey Lal. P. W. 1 Asmawati Devi, cousin sister of Hari Narain Yadav and Chhotey Lal and Indu Devi, sister-in-law gave a false report against the accused-appellant after a lapse of more than eight months from the date of occurrence which was prepared after due deliberations and consultations and after seeking legal advice. He was falsely implicated in the present case due to political pressure, the witnesses were partisan and interested witnesses. The appellant had been chargesheeted by the investigating officer who was in collusion with the real accused with the object of saving them, all the witnesses had given false evidence against him. He also stated that investigation in this case was absolutely tainted and unilateral. The accused-appellant examined Hare Ram as D. W. 1, Kalawati @ Devdhari as D. W. 2, his daughter-Nandini as D. W. 3, himself as D. W. 4. and Constable Rajdhani Prasad D. W. 5. 11. The accused-appellant also adduced documentary evidence to which we shall refer as and when the context so requires. 12. Learned Additional Sessions Judge, Court No. 4, Ballia after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well documentary, convicted the appellant under Section 302 I.P.C. and Section 3/25 Arms Act and awarded aforesaid sentences to him. 13. Hence this appeal. 14. Learned counsel for the appellant submitted that although the accused-appellant had himself lodged the F.I.R. of the occurrence but the investigating officer of the case instead of investigating the case properly and prosecuting the accused named in the F.I.R., in collusion with the named accused-Harai Narain Yadav, Chhotey Lal and their other relatives and on the basis of the documents prepared after due deliberations and consultations arraigned the appellant as an accused and filed charge-sheet against him. He next submitted that there was no occasion for the appellant to have made any extra judicial confession before P. W. 2 Nand Ji Yadav. The reliance placed by the learned trial judge on his evidence for the purpose of convicting the appellant, is per se illegal. He next submitted that instant case is based on circumstantial evidence as no one had seen the appellant committing the murder of his wife. It is settled law that when a case is based only on circumstantial evidence, the inference of guilt can be justified 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. In the instant case, neither the circumstances relied upon by the prosecution constitute the complete chain pointing out at the guilt of the accused alone nor the circumstances were proved beyond all reasonable doubt. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellant nor the sentence awarded to him can be sustained and are liable to be set aside. 15. Per contra Sri J. K. Upadhyay, learned A.G.A. appearing for the State submitted that the chain of circumstances relied upon by the prosecution in this case stands proved beyond all reasonable doubts by the evidence on record and all the incriminating facts and circumstances of this case are incompatible with the innocence of the accused or the guilt of any other person. This appeal lacks merit and is liable to be dismissed. 16. We have heard the learned counsel for the parties and perused the entire lower court record very carefully. 17. There is no dispute about the fact that the case in hand rests on circumstantial evidence. 18. Before examining the evidence on record, with the object of ascertaining whether the chain of circumstances relied upon by the prosecution is wholly incompatible with the innocence of the accused-appellant and whether the circumstances have been proved beyond all reasonable doubt, it would be useful to examine the legal position on the issue. 19. 18. Before examining the evidence on record, with the object of ascertaining whether the chain of circumstances relied upon by the prosecution is wholly incompatible with the innocence of the accused-appellant and whether the circumstances have been proved beyond all reasonable doubt, it would be useful to examine the legal position on the issue. 19. In the case of Sharad Birdhi Chand Sarda vs. State Of Maharashtra AIR 1984 SC 1622 , where it was held by the Apex Court that the onus is on the prosecution to prove that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Apex Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established; (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”. 20. The principal which emerges from the reading of the aforesaid decision is that conviction can be based solely on the circumstantial evidence but it should be decided on the touch stone of the law relating to the circumstantial evidence. 21. 20. The principal which emerges from the reading of the aforesaid decision is that conviction can be based solely on the circumstantial evidence but it should be decided on the touch stone of the law relating to the circumstantial evidence. 21. The law laid down by the Apex Court in the case of Joseph v. State of Kerala (2000) 5 SCC 197 where the court has explained under what circumstances conviction can be based purely on circumstantial evidence, it is observed, that, "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused." 22. Record of this case shows that the learned trial judge relied upon the following seven circumstances for proving the guilt of the appellant : First -That in the night of 4/5.12.2007 at about 11:30 P.M., a first information report regarding the death of Pushpa Devi was registered. Second -That deceased-Pushpa Devi was having an illicit fair with Dhanesh. Third -That at the time and the place of the occurrence, appellant-Jata Shanker Yadav was present in his house. Fourth -On the date and time of the occurrence, appellant-Jata Shanker Yadav had jumped from the window of the bedroom of deceased-Pushpa Devi and had run away. Fifth -That the weapon used by appellant-Jata Shanker Yadav for committing the murder of his wife was recovered by the investigating officer on his pointing out. Sixth-That the injures found on the body of the deceased after the postmortem examination were caused by the weapon used by appellant-Shanker Yadav. Fifth -That the weapon used by appellant-Jata Shanker Yadav for committing the murder of his wife was recovered by the investigating officer on his pointing out. Sixth-That the injures found on the body of the deceased after the postmortem examination were caused by the weapon used by appellant-Shanker Yadav. Seventh -Forensic examination of the weapon used in the commission of the crime (country made pistol and empty cartridge) and the report of the forensic lab. 23. As far as the circumstance nos. first and third are concerned, it is admitted to the defence that a first information report regarding the murder of Pushpa Devi in the night of 4/5.12.2007 at about 11:30 P.M. was registered and at the time and date of the incident the appellant-Jata Shanker Yadav was present in his house. 24. Qua the fourth circumstance, the learned trial judge after evaluating the testimony of P. W. 1 Asmawati Devi on the aforesaid point, came to the conclusion that P. W. 1 Asmwati Devi was not a reliable witness and held that the prosecution had failed to prove the fourth circumstance. 25. We are now left with four circumstances namely circumstance nos. second, fourth, sixth and seventh. 26. In order to prove the second circumstance the deceased was having an illicit affair with Dhanesh, resident of the same village as deceased, the prosecution had examined P. W. 1 Asmawati Devi and P. W. 2 Nand Ji Yadav. As far as the evidence of P. W. 1 Asmawati Devi is concerned, her evidence on the aspect of deceased having an affair with Dhanesh is liable to be discarded as she was held to be an interested and unreliable witness by the trial court while examining the fourth circumstance we do not find any reason to take a contrary view. The evidence of P. W. 2 Nand Ji Yadav on the said point is hearsay and hence inadmissible in evidence against the appellant. As regards P. W. 2 Nand Ji Yadav, he in his examination-in-chief merely stated that appellant-Jata Shanker Yadav himself had confessed before him that he had committed the murder of his wife because of her being a lady of easy virtue. P. W. 2 Nand Ji Yadav had further deposed in his examination-in-chief that the aforesaid confession was made by accused-appellant before him on 22.05.2008 i.e. after more than 5 months of the occurrence. P. W. 2 Nand Ji Yadav had further deposed in his examination-in-chief that the aforesaid confession was made by accused-appellant before him on 22.05.2008 i.e. after more than 5 months of the occurrence. Moreover, his statement under Section 161 Cr.P.C. was recorded on 28.06.2008 after an inordinate and unexplained delay of more than 1 month. The inordinate delay in recording the statement of P. W. 2 Nand Ji Yadav by the investigating officer gives rise to a very strong inference that P. W. 2 Nand Ji Yadav is a got up witness and the delay in recording his statement caused a serious doubt about his claim that the appellant has made extra judicial confession before him. There is nothing on record indicating that P. W. 2 Nand Ji Yadav was either a well connected influential person or a close relative of the appellant and hence the question arises why the appellant would make an extra judicial confession before him after more than 5 months of the occurrence. 27. Thus, the evidence of P. W. 2 Nand Ji Yadav does not inspire confidence and we have no hesitation in holding that the prosecution has miserably failed to prove the second circumstance relied upon by the prosecution to establish the guilt of the accused-appellant. 28. Under identical circumstances the Apex Court in paragraph 11 of Shahid Khan vs. State of Rajasthan, held as here-under : 11. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt. In the present case also there is no corroboration of his evidence from any other independent source. 29. For proving the fifth circumstance, the recovery of the crime weapon by the investigating officer on the pointing out of appellant-Jata Shanker Yadav, the prosecution had examined P. W. 3 Shyam Lal Yadav and the investigating officer of the case P. W. 5 D. K. Pandey. P. W. 5 D. K. Pandey proved the recovery memo of the crime weapon as Ext. Ka3. According to recitals contained in the recovery memo Ext. Ka3, the investigating officer of the case P. W. 5 D. K. Pandey had recovered the country made pistol used in the crime by the appellant on his pointing out after digging the floor of the south western corner of the house of the appellant with a dibber where he had allegedly concealed it after committing the murder of Pushpa Devi. Ext. Ka3 bears the signature of the investigating officer and the witnesses. 30. P.W.3 Shyam Lal Yadav, the independent witness of the recovery in his examination-in-chief deposed that on 3.9.2008 at about 6 A.M., the investigating officer had recovered the crime weapon from the house of the appellant on his pointing out. He further deposed that the crime weapon was buried under the floor of his house and when the investigating officer had opened it's barrel, he had found an empty cartridge stuck therein. The investigating officer had packed and sealed the country made pistol and empty cartridge separately in his presence and prepared recovery memo of the aforesaid articles which had been signed by him. The investigating officer had packed and sealed the country made pistol and empty cartridge separately in his presence and prepared recovery memo of the aforesaid articles which had been signed by him. The recovery memo of the alleged crime weapon from the house of the appellant on his pointing out pursuant to his disclosure statement after more than 9 months of the occurrence after his arrest on 2.9.2008 appears to be extremely suspicious. Although the prosecution has alleged that the recovery was made in pursuance of the disclosure statement made by the appellant before the police but the alleged disclosure statement of the appellant was neither exhibited nor proved by the investigating officer. 31. Moreover the independent witness of the recovery, P. W. 3 Shyam Lal Yadav whose evidence was recorded on 25.5.2009 has deposed that the recovery was made about 4-5 months after the occurrence whereas the correct fact is that the alleged recovery of the crime weapon was made on the alleged pointing out of the appellant after more than 8 months of the occurrence. 32. Thus, in view of the above, we are constrained to hold that the prosecution has miserably failed to establish the fifth circumstance as well. 33. Now coming to the sixth circumstance relied upon by the trial judge for fastening the guilt of the murder of Pushpa Devi upon the appellant that the antemortem firearm wound found on the body of the deceased was caused by the country made pistol recovered from the house of the appellant allegedly on his pointing out, we find that the prosecution for proving the aforesaid circumstance has relied upon the report of Vidhi Vigyan Prayogshala dated 4.4.2008 Ext. Ka20, the postmortem report of the deceased which was marked as Ext. Ka19 and the evidence of P. W. 9 Dr. A. K. Singh who had conducted the autopsy on body of the deceased. 34. A perusal of the report of Vidhi Vigyan Prayogshala dated 4.4.2008 Ext. Ka20 indicates that on 27.10.2008 a sealed bundle along with a letter was delivered in the forensic lab by Constable Riyaz Ahmad. On the sealed bundle, case crime no. 24 of 2008, under Section 3/25 Arms Act (State Vs. Jata Shanker Yadav and others) was written along with two specimen seals. The said bundle when it was open it was found to contain another sealed bundle on which case crime no. On the sealed bundle, case crime no. 24 of 2008, under Section 3/25 Arms Act (State Vs. Jata Shanker Yadav and others) was written along with two specimen seals. The said bundle when it was open it was found to contain another sealed bundle on which case crime no. 94 of 2008, u/s 3/25 Arms (State Vs. Jata Shanker Yadav) and the crime weapon of case crime no. 184 of 2008, u/s 302 I.P.C. etc. was written on it. The second sealed bundle contained a .303 country made pistol and in the barrel whereof one empty cartridge of .303 bore was stuck. The country made pistol was marked by the forensic expert as 1 of 2008 while the fired cartridge was indexed as EC-1. The forensic expert after chemical examination of the country made pistol 1 of 2008 and the cartridge EC-1 came to the conclusion that the empty cartridge EC-1 was fired from the country made pistol 1 of 2008. 35. According to the postmortem report of the deceased Ext. Ka19, only one firearm wound was found on the body of the deceased in the center of the forehead. The dimension of the firearm wound was 10 cm x 12 cm x brain deep. According to the prosecution case the size of bullet which had caused the injury was 2.5 cm x 1.50 cm. 36. P. W. 9 Dr. A. K. Singh in his examination-in-chief apart from proving the postmortem report of the deceased Ext. Ka19 had deposed that in his opinion the deceased had died due to shock and hemorrhage as a result of antemortem firearm wound possibly in the night of 4/5.12.2007 between 11 P.M. to 12 P.M. 37. P. W. 9 Dr. A. K. Singh in his cross-examination deposed that the length of the bullet which he had taken out from the body of the deceased was 2.50 cm while it's thickness was 0.5 cm. He also deposed that the dimension of the entry wound is the same as that of the bullet while the dimension of the exit wound is larger than the size of the bullet. 38. He also deposed that the dimension of the entry wound is the same as that of the bullet while the dimension of the exit wound is larger than the size of the bullet. 38. On the suggestion being given to him by the defence counsel that the entry wound 10 cm x 12 cm found on the forehead of the deceased could not be caused by the bullet recovered by him from the deceased's body, he stated that the bullet of the dimension of 2.5 cm x 0.5 cm can cause an entry wound of 10 cm x 12 cm only in case after entry the bullet does not exit and remains embedded inside. 39. Thus, upon a careful scrutiny of the evidence of P. W. 9 Dr. A. K. Singh and the report of the forensic expert Ext. Ka12 and the postmortem of the deceased Ext. Ka19, we find firstly the .303 bullet which was allegedly recovered from the body of the deceased was never send to the forensic expert for chemical examination. Only the country made pistol and the fired cartridge stuck in it's barrel were sent for forensic examination. 40. In the absence of any reliable evidence of the forensic expert that the bullet which was recovered from the body of the deceased was fired from the same country made pistol which was recovered from the body of the deceased, it cannot be said with any certainty that the country made pistol recovered from the house of the appellant allegedly on his pointing out was used by him in committing the murder of Pushpa Devi. 41. Moreover a .303 bullet of the size of the 2.5 cm in length and 0.5 cm in thickness in our opinion was not capable of causing entry wound of firearm of the dimension 10 cm x 12 cm. The opinion given by P. W. 9 Dr. A. K. Singh in his evidence that if there is no exit wound of a .303 bullet can cause an entry wound of the dimension of 10 cm x 12 cm which appears to be without any basis and does not appeal to us. The prosecution, in our opinion has also miserably failed to prove the sixth circumstance by adducing any reliable and cogent evidence. 42. The prosecution, in our opinion has also miserably failed to prove the sixth circumstance by adducing any reliable and cogent evidence. 42. The last circumstance on which the trial court relied was with regard to the forensic examination of the weapon used in the commission of the crime, the country made pistol and the report of the forensic report. While examining the sixth circumstance we have already held that the report of the forensic expert Ext. Ka20 merely indicates that the empty cartridge indexed as EC-1 which was found stuck in the barrel of the country made pistol which was recovered from the house of the appellant allegedly on his pointing out and which was marked as 1 of 2008 by the forensic expert was fired from it. 43. We have very carefully gone through the evidence of the two investigating officers, P. W. 5 Dr. D. K. Pandey, the second investigating officer and P. W. 7 V. K. Tiwari, the first investigating officer as well as P. W. 8 Gulab Chand who had investigated the case under Section 3/25 Arms Act but we have not found anything in their evidence which may indicate that .303 bullet which was allegedly recovered from the dead body of the deceased and handed over to the concerned constable along with apparels of the deceased by P. W. 9 Dr. A. K. Singh who had conducted the postmortem on the body of the deceased, as per the recital contained in the postmortem report of the deceased Ext. Ka19, was sent for forensic examination. The .303 bullet allegedly recovered from the deceased's body was also, for the reasons best known to the prosecution was not exhibited. There is also no evidence on record indicating that where .303 bullet which was allegedly recovered from the body of the deceased and handed over by P. W. 5 S.I. D. K. Pandey to the police constable on 5.12.2007 was kept thereafter. 44. There is yet another very relevant aspect of the matter which gives rise to a very strong doubt that the country made pistol which was allegedly recovered from the house of the appellant on his pointing out and the country made pistol which was produced by the prosecution before the court during the trial are two different weapons. The recovery memo of the country made pistol Ext. The recovery memo of the country made pistol Ext. Ka3 does not indicate that there was any mark on the recovered firearm. However, on the country made pistol which was produced during the trial words and figures 598-BAL-08 and 1 of 2008 were inscribed. As far as mark 1 of 2008 found on the country made pistol is concerned, there is evidence on record indicating that it was inscribed by the forensic expert but as far as the mark 598-BAL-08 inscribed on the alleged fire crime weapons are concerned, there is no evidence on record as to how the aforesaid mark came to be inscribed on the alleged crime weapon. Although the learned trial judge in the impugned judgment and order has observed that 598-BAL-08 was marked on the crime weapon for the purpose of identification before it was sent to the forensic expert but the police officer who had allegedly marked as 598-BAL-08 was neither examined during the trial nor even his name was disclosed. Moreover, the report of the forensic expert Ext. Ka20 also does not indicate that the crime weapon of this case namely country made pistol which was sent to the forensic lab for chemical examination, when taken out by the forensic expert from the sealed bundle contained any mark of identification. Hence, in our opinion, even the last circumstance is not proved. 45. Thus, upon a wholesome consideration of the facts of the case, attending circumstances and a careful evaluation of the evidence on record, we find that apart from the two circumstances namely circumstance nos. first and third which were not in dispute and on which nothing turns, the prosecution has miserably failed to establish the other five circumstances for proving the charge framed against the appellant. 46. Since the prosecution did not succeed in proving the circumstances from which it sought the court to draw the conclusion of guilt of the appellant, neither the recorded conviction of the appellant nor the sentence awarded to him can be sustained and are liable to be set aside. 47. These are the reasons upon which we set aside the impugned judgment and order.