JUDGMENT : M.S. SONAK, J. 1. Heard Ms. Shweta Wankhede, learned counsel appointed under the Legal Aid Scheme to appear on behalf of the appellant and Mr. V.A. Thakre learned Additional Public Prosecutor for the respondent-State. 2. This appeal is directed against the judgment and order dated 31.08.2016 made by the learned Additional Sessions Judge, Nagpur in Sessions Trial No. 208/2013, convicting the appellant for an offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and in-default to under further rigorous imprisonment for one year. 3. The prosecution version is that the appellant was working with one Manoj Ahuja, a contractor, in the field of Prashant Pundlik Bhoyar at village Linga Pardi. The deceased Shankarrao Kokate was also working at the same site as Watchman. On 16.02.2013, Prashant had brought at the site 28 channels and 4 angles. Out of these, two angles and one channel were found to be missing. On inquiries, the deceased informed Prashant that it is the appellant, who had stolen the said channel and two angles. The appellant was angered with this allegation and bore a grudge against the deceased. It is due to this grudge that on 19.02.2013, the appellant assaulted the deceased with an axe and murdered him. 4. The charge was framed against the appellant which he denied. The prosecution examined 13 witnesses and thereafter, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. Despite opportunities, the appellant neither examined himself nor led any defense evidence. By the impugned judgment and order, the learned Additional Sessions Judge has convicted and sentenced the appellant, as aforesaid. Hence, the present appeal. 5. Ms. Wankhede, learned counsel appointed under the Legal Aid Scheme to appear on behalf of the appellant, submitted that this is a case of circumstantial evidence and the principles for evaluation of circumstantial evidence have not been correctly followed by the learned Additional Sessions Judge. She submitted that this is also a case where the investigating agencies have manufactured the evidence and this casts serious doubt on the prosecution case. She made submissions on the so-called recovery of an axe and pointed out how crucial aspects have been missed by the learned Additional Sessions Judge in this matter. She submitted that this is also a case where the investigating agencies have manufactured the evidence and this casts serious doubt on the prosecution case. She made submissions on the so-called recovery of an axe and pointed out how crucial aspects have been missed by the learned Additional Sessions Judge in this matter. She pointed out that the motive was not established by the prosecution and the motive suggested was too flimsy to deserve any acceptance. She relied on Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 , in support of her submission. 6. Mr. Thakre, learned Additional Public Prosecutor for the respondent-State, defended the impugned judgment and order based on the reasoning reflected therein. He pointed out that the blood-stained clothes of the appellant were discovered pursuant to the statement made by the appellant while in custody. He submitted that the Chemical Analyser report has confirmed the presence of the blood of the deceased on such clothes. He submitted that the motive was established by the prosecution and the chain of circumstance was complete. He submitted that the appellant acted with premeditation and was correctly convicted the appellant under Section 302 of the Indian Penal Code. He, therefore, submitted that this appeal may be dismissed. 7. The rival contentions now call for our determination. 8. Since this is a case based on circumstantial evidence, we will have to abide by the principles for evaluation of circumstantial evidence, as explained by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra) at paragraphs 153 and 154 which read as follows: “153. 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 Sahebrao Bobade vs. State of Maharashtra, where the 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. (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. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 9. The learned Additional Sessions Judge has not listed out in precise terms the circumstances, based on which, the appellant has been convicted in this matter. However, from the perusal of the impugned judgment and order, it appears that the learned Additional Sessions Judge has relied on the following circumstances: (i) That the death of the deceased was homicidal. (ii) That there was enmity between the appellant and the deceased which provided the motive for the crime. (iii) That the certain items were seized from the spot of offense and such articles incriminate the appellant. (iv) That the axe i.e. the weapon of the offense was discovered in pursuance of the statement given by the appellant while in custody. The axe was not found in some public place, as contended by the defense, but was found in a septic tank full of water. (v) That the axe had bloodstains on it. (iv) That the axe i.e. the weapon of the offense was discovered in pursuance of the statement given by the appellant while in custody. The axe was not found in some public place, as contended by the defense, but was found in a septic tank full of water. (v) That the axe had bloodstains on it. (vi) On examination, the Chemical Analyser report certified that the blood found on the axe was of the blood group ‘A’ i.e. the same as the blood group of the deceased. (vii) That the bloodstained clothes which the appellant was wearing at the time of the incident, were also recovered pursuant to a statement given by the appellant while in custody and on chemical analysis these were found to be of blood group ‘A’ i.e. the same blood group of the deceased. (viii) That the medical evidence confirmed that the injuries caused to the deceased could be caused by the axe seized in pursuance of the statement given by the appellant. (ix) The discovery of the stolen angles and channel pursuant to the statement given by the appellant. (x) The proximate link between the allegation made by the deceased about the stolen channel and angles and the date of the murder. 10. Before going to the issue, as to whether, the aforesaid circumstances formed a complete chain so as to exclude the possibility of innocence of the appellant, we note that the discovery of the axe, described as the murder weapon, based on the alleged statement of the appellant, has been regarded as one of the most important links by the learned Additional Sessions Judge to convict the appellant in this case. The learned Additional Sessions Judge has reasoned that since there were bloodstains on the axe and the Chemical Analyser report indicated that the blood thereon was of ‘A’ group and further since the blood group of the deceased was also ‘A’ this is a clinching circumstance to link both, the axe and the appellant with the offense. 11. The learned Additional Sessions Judge was quite justified in treating this discovery of the axe and finding on the axe on the axe, bloodstains having blood group ‘A’ as one of the most vital circumstances for sustaining the conviction of the appellant. But the question is, whether this circumstance was proved by the prosecution, in this case, beyond a reasonable doubt. But the question is, whether this circumstance was proved by the prosecution, in this case, beyond a reasonable doubt. Sharad Birdhichand Sarda (supra) requires the prosecution to prove each of the circumstances beyond a reasonable doubt. In this context, the decision reminds the court that mental distance between ‘must be’ and ‘may be’ is quite a lot, and such distance has to be invariably traversed by the prosecution. 12. In this case, we are satisfied that the prosecution has failed to prove this all-important circumstance, much less prove the same beyond a reasonable doubt. This is evident from the fact that one of the prosecution witnesses Ropesh Patil (PW-4) had clearly deposed that on 20.2.2013, the police had seized the axe from the spot of the crime. Therefore, we fail to understand how the axe found its way into a septic tank full of water and further how this axe was rediscovered by the investigating agencies allegedly based on a statement given by the appellant while in custody on 21.2.2013. 13. Abhijit Shrawankar (PW-2) deposed that he was called to the Katol Police Station on 21.2.2013 and in his presence, the statement of the appellant was recorded that he had concealed an axe in the septic tank situated in the field of one Prashant Bhoyar and he would show the same. PW-2 deposed that he along with one Vikram accompanied the police and the appellant to the field of Bhoyar in the village Linga. Here, the appellant allegedly showed the septic tank which was full of water. Then, the water up to the level of 4 ft. was removed from the tank with the help of a bucket. A swimmer of the village by the name of Kishor Patil, who was present at the relevant time offered to enter into the septic tank and take out the axe. Abhijit (PW-2) has deposed that the axe was having a wooden handle, its edge was sharp and it also had bloodstains. 14. Apart from the circumstance that PW-4 had also deposed that the police had seized the axe from the spot of the crime on 20.2.2013 i.e. on the previous day, what is startling is the evidence that the axe which was allegedly found in the septic tank full of water, when removed, was found to have on it bloodstains. 14. Apart from the circumstance that PW-4 had also deposed that the police had seized the axe from the spot of the crime on 20.2.2013 i.e. on the previous day, what is startling is the evidence that the axe which was allegedly found in the septic tank full of water, when removed, was found to have on it bloodstains. These bloodstains were allegedly noticed by Abhijit (PW-2), a panch witness, by mere examination with his naked eyes. All this, according to us, is quite startling and casts serious doubt on the entire prosecution case itself. 15. In this case, we find it quite inconceivable that the prosecution should attempt to rediscover the axe, which was already found at the site of the crime on the previous day. Further, we find that even more inconceivable than the axe which was allegedly recovered from a septic tank full of water, almost two days after the date of the incident, should still have on it bloodstains that could be seen of the naked eyes by the panch witness. The prosecution, in this case, has gone to the extent of producing that record of Chemical Analyser report stating that the bloodstains which were allegedly found on this axe that remained in a septic water tank for almost two days, could be analyzed and the bloodstains found thereon bore the blood group ‘A’ which was the same blood group as that of the deceased. We think that there is merit in the contentions of Ms. Wankhede that all this is quite inconceivable and this is not just a case where the prosecution has failed to prove its case beyond a reasonable doubt but that this is a case where the prosecution has gone to the extent of creating some evidence to secure the conviction of the appellant. 16. According to us, the aforesaid constitutes a very vital missing link in the chain of circumstance, based upon which, the prosecution intends to sustain the conviction of the appellant. This aspect has not been considered by the learned Additional Sessions Judge. The learned Additional Sessions Judge, while convicting the appellant, has, without any cogent reasoning, simply disbelieved or rather downplayed the testimony of PW-4 Ropesh, who had clearly stated that the axe was attached from the spot of the crime on 20.2.2013 itself. This aspect has not been considered by the learned Additional Sessions Judge. The learned Additional Sessions Judge, while convicting the appellant, has, without any cogent reasoning, simply disbelieved or rather downplayed the testimony of PW-4 Ropesh, who had clearly stated that the axe was attached from the spot of the crime on 20.2.2013 itself. This evidence of PW-4 could not have been discarded by the learned Additional Sessions Judge merely because the other pancha to the spot of the offense panchanama i.e. Dhanraj Khotmare (PW-3) denied in the cross-examination that the police had seized the axe in his presence on 20.2.2013. If two prosecution witnesses give evidence that contradicts one another, the benefit of such contradiction should go to the appellant and not to the prosecution. 17. The learned Additional Sessions Judge accepted the recovery panchanama and the recovery of the axe from the septic tank by simply observing that the septic tank is not some public place and the fact that the appellant knew that the axe was concealed in the septic tank incriminates the appellant. Now, with respect, we are unable to approve such an approach. The learned Additional Sessions Judge failed to appreciate that it would be most improbable that the axe which remained in the water for almost two days after the crime, would still have on it bloodstains, that could be recognized by the recovery panchas by their naked eyes. Further, the learned Additional Sessions Judge failed to appreciate that it was highly improbable that the forensic expert would be in a position to detect blood on the axe after it allegedly lay in the septic tank full of water for almost two days after the date of the alleged crime. In any case, it would be most improbable for the forensic expert to detect that the blood on such axe was of ‘A’ group i.e. the same group as of the deceased. We think that the impugned judgment and order that places such heavy reliance on this aspect of the discovery of axe and axe being the murder weapon, warrants interference. 18. Even the recovery of the blood-stained clothes, based on the statement of the appellant, will now have to be viewed with some element of suspicion. There is no clear evidence about this recovery being from someplace, to which the investigating agencies had no prior access. 18. Even the recovery of the blood-stained clothes, based on the statement of the appellant, will now have to be viewed with some element of suspicion. There is no clear evidence about this recovery being from someplace, to which the investigating agencies had no prior access. The evidence on the aspect of sealing is also not quite clear, though inferentially something can be said about this in favor of the prosecution. But in the absence of the vital link as aforesaid, the conviction based on circumstantial evidence would be quite unsafe. 19. On the aspect of motive as well, we notice that no complaints were lodged either by Manoj, the appellant’s employer (contractor), Prashant Bhoyar, the owner of the field in which the contractor’s project was going on, or the deceased Shankarrao about the alleged missing two angles and the channel from the site. There is no explanation, as to why such a complaint was never lodged. Besides, even after these two angles and one channel were allegedly recovered based on the statement allegedly made by the appellant, there was no proper identification of such articles. The prosecution has led no evidence whatsoever to establish that Prashant Bhoyar had indeed brought to the site some 28 channels and 4 angles, out of which, one channel and two angles were indeed stolen or that recovered channel and angles were out of these 28 channels and 4 angles brought to the site of Prashant Bhoyar. Besides, these channels and angles are commonly available articles in the market. There is no evidence about any peculiar marks or characteristics that would establish that these channels and angles had indeed been acquired by Prashant at the site and it is out of these 28 channels and four angles that the appellant had stolen two angles and one channel and further two angles and two channels allegedly recovered were a part of these 28 channels and 4 angles at the site. In the absence of proper identification, we do not think that it would be safe to regard the allegation of theft of such commonly available articles as offering a motive for the crime. In a case based entirely on circumstantial evidence, motive does have a role to play. Since this motive is also not established by the prosecution beyond a reasonable doubt, there is yet another missing link in the matter. 20. In a case based entirely on circumstantial evidence, motive does have a role to play. Since this motive is also not established by the prosecution beyond a reasonable doubt, there is yet another missing link in the matter. 20. The circumstance that the appellant and the deceased were working at the same site or that the deceased was working as a Chowkidar are not per-se incriminating circumstances, based on which, the conviction can be sustained. Again here, there is some evidence to suggest that the appellant and the deceased Shankarrao were staying in the same room and there is some evidence to suggest that this may not be proper. Even the evidence on the aspect of the appellant giving a threat that he will kill the deceased does not inspire much confidence and appears to be an improvement. Based on this material, we do not think that the prosecution, in this case, has discharged the burden which the law casts on it in a matter based on circumstantial evidence. 21. Since there is no proper evidence that the axe which was allegedly recovered was the murder weapon, the medical evidence that such an axe can cause the injuries that were found on the deceased, by itself, cannot be regarded as any incriminating circumstance. Besides, this is a case where the prosecution has failed to establish the most important circumstance beyond a reasonable doubt. The circumstances so established do not create a chain, which excludes the possibility of innocence of the appellant. This is also a case where investigating agencies have attempted to create evidence against the appellant on a very vital aspect and this attempt impacts to a certain extent the rest of the evidence collected by the investigating agencies. In any case, even based on the rest of the evidence, the conviction, according to us, would be unsafe. 22. For all the aforesaid reasons, we allow this appeal, set aside the impugned judgment and order dated 31.08.2016 and acquit the appellant of the offense punishable under Section 302 of the Indian Penal Code. 23. The appellant shall be released forthwith if he is not required in connection with any other matter. 24. The muddemal property to be disposed of in accord with the rules. 25. In this case, Ms. Wankhede, learned counsel appeared on behalf of the appellant under the Legal Aid Scheme at very short notice. 23. The appellant shall be released forthwith if he is not required in connection with any other matter. 24. The muddemal property to be disposed of in accord with the rules. 25. In this case, Ms. Wankhede, learned counsel appeared on behalf of the appellant under the Legal Aid Scheme at very short notice. She rendered effective assistance and therefore, we thank her for the same. We certify the fees payable to her at Rs. 5,000/-.