ORDER : Shree Chandrashekhar, J. Sole appellant has challenged the judgment of conviction under Sections 302 and 201 IPC dated 03.07.2001 and order of sentence to undergo RI for life under Section 302 IPC and RI for 5 years under Section 201 IPC dated 07.07.2001 passed by the learned 2nd Additional Sessions Judge, Dumka in Sessions Case No. 183 of 1998. 2. Wife of the appellant, namely, Sumitra Devi was reportedly killed by him, as informed by two co-villagers to the mother of Sumitra Devi. On the basis of fardbeyan of Baul Gope recorded on 24.02.1998, Nala P.S. Case No.07 of 1998 was registered against the appellant on the allegation that he has killed his wife. After the investigation, charge-sheet was submitted and charge under Sections 302 and 201 IPC was framed vide order dated 24.03.1999. During the trial, the prosecution has examined 9 witnesses; the informant is PW-6 and the Doctor who has conducted autopsy over the dead body of Sumitra Devi is PW-9. The Investigating Officer has examined himself as PW-8. 3. The Doctor has found the following injuries on Sumitra Devi: “(i) External appearance- dark complexioned; aged 35 years. The body was decomposed and was in pieces. Maggots were crawling with foul smell. Sand and soil traces present in the body pieces. Head was chopped from the neck onwards. Right upper arm humerous and lower part of the radius and ulna left upper arm was decapitated from left shoulder. Both thighs were decapitated from the body, from upper 2/3 of thighs. (ii) Internal appearance:-Head- on opening skull brain matter decomposed and fracture of right parietal bone. Neck separated from trunk. Chest-on opening chest all chamber of head were empty. Lungs were pale. Abdomen-liver spleen kidney pale. Stomach was empty. Intestine contained foul smelling gases. Urinary bladder was empty. Uterus-N.A.D. External ganitalia- normal.” 4. The doctor has opined that death of Sumitra Devi was caused due to the injuries found on her body which were caused by sharp-cutting weapon as well as hard and blunt substance. The post-mortem examination was conducted at 4:45 a.m. on 27.02.1998. He has found that the death was caused about 7 days before. 5. On the basis of the evidences brought before him, the learned 2nd Additional Sessions Judge, Dumka has held that the prosecution has proved the charge under Sections 302 and 201 IPC against the appellant. 6. The post-mortem examination was conducted at 4:45 a.m. on 27.02.1998. He has found that the death was caused about 7 days before. 5. On the basis of the evidences brought before him, the learned 2nd Additional Sessions Judge, Dumka has held that the prosecution has proved the charge under Sections 302 and 201 IPC against the appellant. 6. The learned Judge has recorded a finding that the case against the accused is based on circumstantial evidence; there is no eye-witness to the occurrence. The learned Judge has referred to the following three circumstances which according to him complete the chain of circumstances: (i) Sumitra Devi was wife of the accused who was living with him at the time of occurrence; (ii) she was missing since last few days but the accused did not give any information to his in-laws; and (iii) the accused has confessed his crime and at his instance parts of the body of Sumitra Devi have been recovered from different places. 7. Sri Hardeo Prasad Singh, the learned APP has referred to the judgment in “State of Rajasthan v. Thakur Singh”, reported in (2014) 12 SCC 211 , to contend that the appellant has failed to offer an explanation about the death of his wife and while so, this itself is a very strong circumstance to suspect involvement of the appellant in killing of his wife. 8. In “Hanumant Govind Nargundkar Vs. State of M.P.” reported in AIR 1952 SC 343 , the law on circumstantial evidence has been lucidly explained by the Supreme Court in the following words: “10….. It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 9. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 9. By now, it is well settled that before conviction is recorded on the basis of circumstantial evidence the Court must be very cautious. The Hon'ble Supreme Court in “Padala Veera Reddy Vs. State of A.P.” reported in 1989 Supp (2) SCC 706, has laid down the following test which the prosecution in a case of circumstantial evidence must satisfy; (i) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) 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 non else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 10. The prosecution witnesses, namely, Sudhanshu Goswami PW-1 and Uttam Kumar Goswami PW-2 are inquest witnesses but no recovery memo after the alleged recovery of the different parts of dead body of Sumitra Devi was prepared. The informant has stated that two persons from the village-Paikbor have informed his mother about death of his sister Sumitra Devi. His younger brother, namely, Pramod Gope has deposed on the similar lines. Mother of the informant, namely, Hinguli Gope-PW-5 has stated what her sons PW-6 and PW-7 have also deposed. She has deposed that father-in-law of her daughter had informed her that the appellant has killed his wife, daughter of PW-5, and gone somewhere. But, father of the appellant has not been examined in this case. Mother of the informant, namely, Hinguli Gope-PW-5 has stated what her sons PW-6 and PW-7 have also deposed. She has deposed that father-in-law of her daughter had informed her that the appellant has killed his wife, daughter of PW-5, and gone somewhere. But, father of the appellant has not been examined in this case. The prosecution witness Arun Kumar Mitra who has been examined as PW-3 has stated that on 23.02.1998 at about 5 a.m. when he was going to Chitranjan to attend his work he has seen the appellant coming from the village and traveling towards a deserted road. He says that he had heard in the village that the appellant’s wife was missing for the last 2 – 3 days and therefore when he asked the appellant where he was going so early in the morning, the appellant told him that he has killed his wife. PW-3, thereafter, went to the village of the informant with his brother PW-4 and informed them about killing of Sumitra Devi. 11. Defence taken by the appellant is that PW-3 was an accused in a case of rape filed by his wife and, therefore, he has falsely been implicated in this case. During his cross-examination, PW-3 admits that Sumitra Devi had filed a rape case against him in which he had surrendered and was sent to judicial custody. 12. In the above state of affairs, now we intend to examine the incriminating circumstances sought to be established by the prosecution against the appellant. Under section 27 of the Indian Evidence Act what is admissible in evidence is discovery of a fact not previously known to the prosecution and discovery of such fact leading to recovery of a material object. According to the prosecution, the appellant has confessed his guilt and he has led the police to three different places from where different parts of dead body of Sumitra Devi have been recovered. The first place was a fallow field at Tetuljor, the second place about 250 yards West of the first place of recovery and the 3rd place was about 500 yards West of Saljoria Mission which is also a fallow land of Sital Mitra. From the above, it stands admitted that different parts of the body of Sumitra Devi have been recovered from the places which were accessible to general public. From the above, it stands admitted that different parts of the body of Sumitra Devi have been recovered from the places which were accessible to general public. No recovery memo has been prepared by the police and, therefore, there is no independent witness to support recovery of the dead body of Sumitra Devi. Moreover, mere recovery of an incriminating material at the instance of an accused is not such incriminating circumstance only on the basis of which conviction of an accused can be recorded. The law on the subject has been explained by the Supreme Court in Gulab Chand v. State of M.P., reported in (1995) 3 SCC 574 , thus: “It is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan v. State of Rajasthan that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof.” 13. Non-explanation by an accused of an incriminating circumstance such as missing of his wife from her matrimonial home no doubt raises a strong suspicion against the accused, however, that by itself is not sufficient to record a finding on the guilt of an accused. As noticed above, recovery of the dead body of Sumitra Devi allegedly at the instance of the appellant is not proved and PW-3 is the person who has given information about death of Sumitra Devi to her mother but he himself was a rape accused. 14. Having examined the evidences led by the prosecution during the trial we are of the opinion that the circumstances relied by the prosecution do not complete the chain of circumstances. 14. Having examined the evidences led by the prosecution during the trial we are of the opinion that the circumstances relied by the prosecution do not complete the chain of circumstances. All that the prosecution has shown is suspicion against the appellant. In “Sharad Birdhichand Sarda v. State of Maharashtra” reported in (1984) 4 SCC 116 , the Supreme Court has observed thus: “153. …....... 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 observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “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.” …..........” 15. In the above facts, we find that conviction of the appellant under sections 302 and 201 IPC is not sustainable. 16. Accordingly, judgment of conviction dated 03.07.2001 and order of sentence dated 07.07.2001 passed by the learned 2nd Additional Sessions Judge, Dumka in Sessions Case No. 183 of 1998 are set-aside. 17. The appellant is acquitted of the charges framed against him in Sessions Case No. 183 of 1998. He is discharged of the liability of the bail bonds furnished by him. 18. In the result, Cr. Appeal (DB) No. 302 of 2001 is allowed. 19. Let the lower court records be transmitted to the court concerned, forthwith.