JUDGMENT : V. Sivagnanam, J. (Prayer: Criminal Appeal filed under Section 374 (2) Cr.P.C. to set aside the judgment dated 28.02.2020 passed in S.C.No.75 of 2015 on the file of the I Additional District and Sessions Court, Vellore.) 1. Challenge in this criminal appeal is to the judgment and order dated 28.02.2020 passed in S.C.No.75 of 2015 on the file of the I Additional District and Sessions Court, Vellore. 2. The appellant, who was the accused in S.C.No.75 of 2015 on the file of the I Additional District and Sessions Court, Vellore, was convicted and sentenced as under: Sl.No. Provision under which convicted Sentence 1. Section 302 IPC Life imprisonment and fine of Rs.5,000/-, in default to undergo three months rigorous imprisonment. 2. Section 25(1-B) (a) of the Arms Act, 1959 Three years rigorous imprisonment and fine of Rs.1,000/-, in default to undergo one month rigorous imprisonment. 3. Section 27 of the Arms Act, 1959 Three years rigorous imprisonment and fine of Rs.1,000/-, in default to undergo one month rigorous imprisonment. 3. The facts in a nutshell leading to the filing of this case are as under: 3.1. The case of the prosecution is that on 19.05.2013 at about 9.00 p.m, the deceased Sampath, who was an agricultural labourer, went to the nearby reserved forest in search of his missing goat; he did not return back; on the next day morning, a shepherd boy informed Sampath’s wife Jaya (P.W.1) that Sampath was lying dead in the forest; on hearing the same, Jaya (P.W.1), Chandrasekar (P.W.2) brother of Sampath and her daughters viz., Malarkodi and Meena went to the place of occurrence and found the dead body of Sampath near Kaliyamman temple with gunshot injuries; thereafter, Jaya (P.W.1) gave a complaint (Ex.P.1) to Veerappan (P.W.10), Inspector of Police; at the same time, Nandakumar (P.W.3), Odugathur Village Administration Officer also gave information to the police about the death of Sampath. 3.2. Veerappan (P.W.10), Inspector of Police, registered an FIR (Ex.P.13) in Crime No.247 of 2013 for the offences under Section 302 IPC r/w Sections 25 (1-B) (a) and 27 of the Arms Act, 1959 against unknown accused. 3.3. Veerappan (P.W.10), Inspector of Police, took up the investigation of the case and went to the place of occurrence, prepared the Observation Mahazar (Ex.P.2) and Rough Sketch (Ex.P.15) in the presence of witnesses Nandakumar (P.W.3), Village Administrative Officer and his assistant Mohanam. 3.3. Veerappan (P.W.10), Inspector of Police, took up the investigation of the case and went to the place of occurrence, prepared the Observation Mahazar (Ex.P.2) and Rough Sketch (Ex.P.15) in the presence of witnesses Nandakumar (P.W.3), Village Administrative Officer and his assistant Mohanam. Further, he seized M.O.1, M.O.2, M.O.3, M.O.6, M.O.7 and M.O.8 and prepared Seizure Mahazar (Ex.P.3) in the presence of the same witnesses and thereafter, conducted enquiry and prepared inquest report (Ex.P.14) in the presence of witnesses. Thereafter, sent the body of Sampath to Vellore Government Hospital for conducting postmortem. 3.4. Dr.Selvaraj (P.W.7) conducted postmortem and gave postmortem certificate with final opinion (Exs.P.10 and P.11). He opined that Sampath would appear to have died of shock and haemorrhage due to gunshot injury. 3.5. Poonjolai (P.W.11) Inspector of Police, continued the investigation and examined the witnesses. On 02.10.2013, at about 10.00 a.m., at Odugathur bus stop near Santhaimedu, he arrested the accused in the presence of Vinayagamoorthy (P.W.4), Village Administrative Officer and his assistant Mohanam. When the accused was examined, he gave a voluntary confession statement, the admissible portion of which has been marked as (Ex.P.4). 3.6 Based on the confession statement (Ex.P4), Poonjolai (P.W.11), Inspector of Police, took the accused and the witnesses to Paravamalai forest area, where, the accused took a Single Barrel Muzzle Loading (SBML) Gun with iron rod from a bush and handed over to Poonjolai (P.W.11) and recovered (M.O.8 & M.O.9) and prepared Seizure Mahazar (Ex.P.5). Thereafter, the accused was remanded to judicial custody. 3.7. Govindasamy, Inspector of Police (P.W.12), continued further investigation and examined the witnesses. D.Baskar, Scientific Officer (P.W.9) examined the gun and four small pellets and gave a certificate (Ex.P.12), which reads as follows: “(i) the gun item 1 is a country made, smooth bore Single Barrel Muzzle Loading (SBML) gun; it is a firarm as defined in the Arms Act 1959; (ii) combustion products of gun powder were detected in the barrel of the gun item 1 indicating that it was used for firing previously; there is no reliable scientific method to determine the exact time of firing. (iii) the gun item 1 was found to be in working condition; (iv) the load pellets in item 2 could have fired from a smooth bore gun.” 3.8. (iii) the gun item 1 was found to be in working condition; (iv) the load pellets in item 2 could have fired from a smooth bore gun.” 3.8. Govindasamy (P.W.12), Investigation Officer, after completing the investigation, filed charge sheet against the accused for the offences under Section 302 IPC r/w Sections 25(1-B)(a) and 27 Arms Act, 1959 before the Judicial Magistrate Court No.III, Vellore and the case was taken on file as P.R.C.No.7 of 2015. After furnishing copies to the accused, the case was committed to the Sessions Court and the case was taken on file as S.C.No.75 of 2015 and made over to the I Additional District and Sessions Court, Vellore, for trial. 3.9. In the trial Court, charges were framed against the accused under Section 302 IPC r/w Sections 25 (1-B) (a) and 27 Arms Act, 1959 and the accused pleaded not guilty. Hence, trial was ordered. 3.10. In the trial Court, the prosecution examined twelve witnesses and marked eighteen documents and twelve material objects. 3.11. When questioned under Section 313 Cr.P.C, the accused denied all incriminating evidence. On behalf of the accused, no witness was examined and no document was marked. 3.12. After considering the evidence on record and hearing the counsel for the parties, the trial Court found that the charges were proved beyond reasonable doubt and convicted and sentenced the accused as stated in paragraph No.2 (supra) on 28.02.2020. 3.13. Being aggrieved by the judgement and order dated 28.02.2020 passed in S.C.No.75 of 2015, the appellant/accused has preferred the present appeal. 4. Heard Mr.N.Sudharsan learned counsel for the appellant and Mr.K.Prabakar, learned Additional Public Prosecutor appearing for the respondent/State and perused the materials on record. 5. The learned counsel for the appellant/accused contended that the prosecution has failed to prove the case and the trial Court has failed to consider the witnesses properly. He objected the conviction of the accused for the aforesaid offences and pleaded to acquit the accused by stating the following reasons: (i) There is no eyewitness in this case. (ii) The circumstantial evidence relied on by the prosecution is not conclusive and not fully proved. The trial Court has failed to bear in mind the rules specially applicable to the circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of the Supreme Court. (ii) The circumstantial evidence relied on by the prosecution is not conclusive and not fully proved. The trial Court has failed to bear in mind the rules specially applicable to the circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of the Supreme Court. According to that standard, the circumstantial evidence relied upon in support of the prosecution of the accused must be fully established. 6. The learned Additional Public Prosecutor appearing for the respondent/State contended that there is no reason to disturb the evidence recorded by the trial Court. He further submitted that the seizure of gun (M.O.8) and pellets (M.O.12) has been proved by the prosecution by oral and documentary evidence. It is his further submission that the accused has involved in another murder case and the circumstantial evidence is fully established against the accused and pleaded to dismiss the appeal. 7. In this case, the fact that Sampath died due to gun shot injury is evidenced by Dr.Sekvaraj (P.W.7) with his postmortem certificate (Ex.P.10). So, it is proved that Sampath was murdered. 8. To connect the accused with the crime, the prosecution did not have eyewitness. The prosecution relied upon the recovery of the gun (M.O.8 & M.O9) used as weapon of murder, which was alleged to have been recovered on the disclosure statement (Ex.P.4) made by the accused to Verrappan (P.W.10), Inspector of Police. 9. Mere discovery under Section 27 of the Evidence Act, 1872, cannot form the basis for convicting a person on a capital charge. 10. Therefore, the prosecution must establish the connection of the object recovered i.e., gun (M.O.8 & M.O9), pellets (M.O.12) with the crime and the accused, otherwise the disclosure is of no consequence. 11. We have gone through the evidence on record, particularly Vinayagamoorthy (P.W.4), Village Administrative Officer, Dr.Selvaraj (P.W.7) and Verrappan (P.W.10), Inspector of Police. They speak about gun (M.O.8 & M.O.9) and pellets (M.O.12). Remaining witnesses did not depose about the fact of disclosure and recovery of weapons. 12. The prosecution case is that the pellets (M.O.12) were found in the body of deceased/Sampath. Dr.Selvaraj (P.W.7), who conducted the postmortem of deceased/Sampath, had taken the pellets from the body and handed over to Veerappan (P.W.10), Inspector of Police. Remaining witnesses did not depose about the fact of disclosure and recovery of weapons. 12. The prosecution case is that the pellets (M.O.12) were found in the body of deceased/Sampath. Dr.Selvaraj (P.W.7), who conducted the postmortem of deceased/Sampath, had taken the pellets from the body and handed over to Veerappan (P.W.10), Inspector of Police. But, the doctor while deposing before the Court, did not state that he had found pellets (M.O12) in the body of the deceased/Sampath and he did not state that he had handed over the pellets (M.O.12) to Veerappan (P.W.10), Inspector of Police. Thus, the doctor-s evidence is not in support of the prosecution case. 13. On perusal of the evidence of Veerappan (P.W.10), Inspector of Police, it is found that he had stated that the alleged pellets (M.O.12) were recovered by him from the place of occurrence. But, he had not prepared any Mahazar. His evidence runs as follows: “TAMIL” 14. In view of the aforesaid evidence of Dr.Selvaraj (P.W.7) and Veerappan (P.W.10), Inspector of Police, the prosecution case that the pellets (M.O.12) were found in the body of deceased/Sampath is falsified. Apart from this, there is no evidence on the side of the prosecution that the pellets (M.O.12) were used from the seized gun (M.O.8 & M.O.9). 15. Further, the recovery of gun (M.O.8 & M.O.9) does not inspire our confidence. The evidence of Vinayagamoorthy (P.W.4), Village Administration Officer, is not fully supporting the prosecution case. He deposed that the confession statement of the accused (Ex.P.4) was recorded by Veerappan (P.W.10), Inspector of Police, in question and answer form. On perusal of the confession statement (Ex.P.4), it is found that it was not recorded in question and answer form. His evidence runs as follows: “TAMIL” 16. The aforesaid evidence raises a doubt whether Vinayagamoorthy (P.W.4), Village Administration Officer, was present at the time of recovery of gun from the accused. The evidence of Veerappan (P.W.10), Inspector of Police, is not supported by any other witnesses, with regard to recovery of gun from the accused. Therefore, the recovery of gun (M.O.8 & M.O.9) does not inspire our confidence and it becomes doubtful. 17. Further, with regard to getting sanction to prosecute under the Arms Act, 1959, the correspondence letter and sanction proceedings are filed as Exs.P.16, 17 & 18. Therefore, the recovery of gun (M.O.8 & M.O.9) does not inspire our confidence and it becomes doubtful. 17. Further, with regard to getting sanction to prosecute under the Arms Act, 1959, the correspondence letter and sanction proceedings are filed as Exs.P.16, 17 & 18. In the above said three letters, the fact of recovery of gun from the accused is not uniformly stated. It also strengthens the doubt raised with regard to recovery of gun from the accused. 18. In a case of circumstantial evidence, there must be necessary evidence as to strong motive on the part of accused persons to commit the crime. In this case this is absent. So, it is always a circumstance in favour of the accused and against the prosecution. 19. For the aforesaid reasons, murder by the accused cannot be presumed only on the basis of recovery of articles, in the absence of connecting evidence. 20. If the recovery of gun and pellets (M.O.8, M.O.9 & M.O.12) is excluded, no other unimpeachable evidence is there to connect the appellant/accused with the crime. It is settled proposition of law that in order to base conviction on the basis of the circumstances, there ought to be a compete chain to unequivocally point out the complicity of the accused. The entire circumstantial evidence should be, totally incompatible and inconsistent with the innocence of the accused. There should not be any missing link. The chain so established from the evidence of the prosecution must, unerringly, point out to the complicity of the accused. In case of any missing link with which a reasonable doubt is conceived, the benefit of it must go to the accused. This celebrated fundamental principle of circumstantial evidence cannot be lost sight of while appreciating the merits of the prosecution version based upon the circumstances until the Court reaches to a conclusion that the link of the circumstantial evidence is so complete that there is not even a hypothesis of innocence of the accused and it indicates his complicity only. In this Court’s opinion, this principle of appreciation of circumstantial evidence has not been properly put in the focus before the Trial Court judge. 21. In this Court’s opinion, this principle of appreciation of circumstantial evidence has not been properly put in the focus before the Trial Court judge. 21. The trial Court, by misconceiving the prosecution evidence wrongly, invoked Section 114 of the Evidence Act and presumed the guilt of the accused for murder which is unsustainable and against the law and contradictory to the facts of the case. Hence, the judgment and order are liable to be set aside. In fine, this criminal appeal is allowed. The conviction and sentence imposed on the appellant by the trial Court in S.C.No.75 of 2015, by judgment dated 28.02.2020 are set aside. Hence, the appellant is set at liberty and shall be released forthwith, unless required in any other case. Consequently, connected miscellaneous petition is also closed.