JUDGMENT : Pankaj Bhandari, J. 1. Accused-appellant has preferred this Criminal (Jail) Appeal aggrieved by Judgment and sentence dated 27.07.2012 passed by Additional Sessions Judge, Jhunjhunu, Camp, Chirawa vide which appellant has been convicted for offence under Section 302 IPC and has been sentenced to life imprisonment and fine of Rs.1,000/- and on non-payment of fine, to further undergo three months simple imprisonment. 2. Succinctly stated the facts of the case are that on 27.02.2009, Rajendra who was undergoing treatment at CMC Hospital, Hisar gave parchabayan (Ex.P-5), wherein it was mentioned that on 26.02.2009 at 04:00 pm, Monika, D/o Purshottam came at his residence to call him at their house. He went to her house, where he was offered liquor by one Pashan Nayak and after consuming liquor, he returned home. Thereafter, he felt uneasy and became unconscious. He has also mentioned in the parchabayan that sum of Rs.28,000/- was due towards sisterin-law of the appellant and Rs.8,000/- towards appellant. On the basis of above parchabayan, Police registered FIR No.56/2009 (Ex.P-6) under Section 328 IPC. During investigation, Rajendra expired on 28.02.2009, where upon Section 302 IPC was added. Police after due investigation submitted charge-sheet under Sections 328, 302 IPC against appellant as well as his wifeSapna. Thereafter, Trial Court framed charge against the accusedappellant and his wife under Section 302 or 302/34 IPC. Accusedappellant and his wife denied charges and sought trial. On behalf of prosecution, 13 witnesses were examined and 15 documents were exhibited. Explanation of the accused was recorded under Section 313 Cr.P.C. In defence, one document was exhibited. Learned Trial Court after hearing the arguments has convicted the appellant for offence under Section 302 IPC and has acquitted the appellant’s wife- Sapna giving her benefit of doubt. 3. It is contended by counsel for the appellant that Officer who had recorded the parchabayan has not been examined as a witness by the prosecution. It is also contended that there is no certificate of the doctor that the deceased was in a fit condition to give his dying declaration. It is also contended that Rule 6.22 of Rajasthan Police Rules, 1965 was not followed for recording the parchabayan. It is also contended that there is no recovery of aluminum phosphide or any utensils by which the same was administered. It is also contended that Rule 6.22 of Rajasthan Police Rules, 1965 was not followed for recording the parchabayan. It is also contended that there is no recovery of aluminum phosphide or any utensils by which the same was administered. It is also contended that the case rests on circumstantial evidence and circumstance do not point towards guilt of the accused. Accused is entitled to acquittal since chain of circumstances is not complete. It is also contended that the witnesses who have stated that deceased informed them about the incident are all related witnesses. PW-1 (Ramesh Nayak) is brother of the deceased, PW-2 (Suresh) is brother-in-law of the deceased, PW-3 (Prem) is cousin of the deceased and PW-6 (Asha) is niece of the deceased. 4. Counsel for the appellant has placed reliance on Sharad Biridhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 ; Jaipal Vs. State of Haryana (2003) 1 SCC 169 ; Swinder Singh Vs. State of Punjab 1992 Supp2 SCC; Panchanand Mandal @ Pachan Mandal & Anr. Vs. State of Jharkhand (2013) Supp AIR (SC) 240 and Krishnan @ Ramasamy & Ors. Vs. State of Tamilnadu (2014) 12 SCC 279 . 5. Learned Addl. Government Advocate has opposed the appeal. It is contended that the learned Trial Court has dealt with entire evidence and has come to a justifiable conclusion and the Judgment passed by learned Trial Court do not call for any interference. 6. We have considered the contentions and have perused the record. 7. Before dealing with merits of the case, we would like to discuss the law relating to circumstantial evidence, more particularly, cases pertaining to death due to poisoning. In Sharad Biridhichand Sarda (supra), the Apex Court has held 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. 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 & Anr. 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 & Anr. 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”. 8. The Apex Court in a recent judgment in Rajbir Vs. State of Punjab 2023 (2) RCR (Criminal) 232 on 24.08.2022 after dealing with Sharad Biridhichand Sarda (supra) held that in case pertaining to poisoning, the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction, which are:- (i) there is clear motive for an accused to administer poison to the deceased, (ii) that the deceased died of poison said to have been administered, (iii) that the accused had the poison in his possession, (iv) that he had an opportunity to administer the poison to the deceased. 9. Apex Court in Swinder Singh (supra) has held that even if there are strong circumstances, still the prosecution is bound to establish facts from which the Court can reasonably arrive at a conclusion that the offence was committed by the accused. Apex Court further observed that the suspicion however grave, cannot take the place of legal proof. In Jaipal Vs. Apex Court in Swinder Singh (supra) has held that even if there are strong circumstances, still the prosecution is bound to establish facts from which the Court can reasonably arrive at a conclusion that the offence was committed by the accused. Apex Court further observed that the suspicion however grave, cannot take the place of legal proof. In Jaipal Vs. State of Harayana (supra), the Apex Court has held that there was no evidence adduced by the prosecution to hold that the accused had the poison in his possession prior the time of the incident. In Krishnan Vs. State of Tamilnadu (supra), the Apex Court held that last seen theory alone, cannot be made a ground to convict the accused. 10. As to what would be the effect of a dying declaration, in this regard, reliance has been placed on Panchanand Mandal (supra), wherein it was held that if the person who has recorded the dying declaration, was neither examined nor cross-examined, conviction on such declaration is not safe. 11. In light of the above judgments, when we scan the evidence of this case, it is revealed that the person who recorded the dying declaration did not appear before the Court. He neither gave evidence, nor he was subjected to cross-examination. As to whether the deceased was in a fit condition to give dying declaration, for that purpose, no certificate of the doctor was obtained before recording the alleged dying declaration. Thus, on both grounds and relying on the judgment of the Apex Court in Panchanand Mandal (supra), the main chain of the case which is the dying declaration is not established. 12. The next circumstance against the accused as per the Trial Court is that poison was administered by the accused and the co-accused. The fact that the deceased consumed alcohol and trace of aluminum phosphide was also found in the FSL report is established by the FSL report. As to whether the poison was administered by the accused is the moot question before us. The Investigating Officer has not recovered any utensil or has not done any investigation with regard to the possession of aluminum phosphide with the accused-appellant. Thus, in view of Jaipal Vs. State of Harayana (supra) and Rajbir Vs. State of Punjab (supra), the circumstance that the accused was possessing the poison and that he administered the same, is not established. 13. Thus, in view of Jaipal Vs. State of Harayana (supra) and Rajbir Vs. State of Punjab (supra), the circumstance that the accused was possessing the poison and that he administered the same, is not established. 13. The next circumstance which has been taken note of by the Trial Court is that the deceased has advanced a sum of Rs.28,000/- to sister-in-law of the appellant and Rs.8,000/- to the appellant. Admittedly, there is no documentary evidence to this effect has been produced before the Court to establish the motive. However, some of the related witnesses have deposed that the deceased had advanced money to the sister-in-law of the appellant. PW-5 (Bhagwan Ram) has deposed that deceasedRajendra would at times lend money to others but he would take the money from some other for lending. As per this witness, deceased-Rajendra was a labourer. Thus, the theory of the prosecution that he advanced Rs.28,000/- to sister-in-law of the appellant and Rs.8,000/- to the appellant cannot be believed as he was not having any independent source of income and as per the witness, he would borrow money from someone and then lent it to someone. No one has deposed before the Court that he had lend money to the deceased for lending it to someone else. Thus, this circumstance is also not established. 14. It is also pertinent to note that it is not clear from the statement of the witnesses that at what time the deceased was called to the house of the accused. Though, this Court has not placed reliance on the parchabayan as neither the officer who recorded it, has appeared before the Court, nor there is any certificate of the doctor that the deceased was in a fit condition to give statement, but even if we go through the parchabayan, the deceased has mentioned therein that at 04.00 pm Monika, D/o appellant came and asked him to come to her house. Upon which, the deceased asked Monika to leave and said that he would join after sometime. As per the statement of PW-5 (Bhagwan Ram), daughter of the appellant came at 03.00 pm to call the deceased, however, PW-1 (Ramesh Nayak) has deposed that at 04:00 pm, Asha (PW-6) came to him and stated that froth is coming out from the mouth of his uncle- deceased. As per the statement of PW-5 (Bhagwan Ram), daughter of the appellant came at 03.00 pm to call the deceased, however, PW-1 (Ramesh Nayak) has deposed that at 04:00 pm, Asha (PW-6) came to him and stated that froth is coming out from the mouth of his uncle- deceased. Thus, as to what time, the deceased was called and at what time he returned is not clear from the evidence adduced before the Court. Thus, this circumstance also could not be established. 15. The learned Trial Court has erred in placing reliance upon the parchabayan and the statement of witnesses. We are of the considered view that the prosecution has utterly failed to establish that the appellant was in possession of aluminum phosphide, and that he administered it to the deceased. As to how the poison was administered is also not established from the evidence adduced before the Court. As per PW-2 (Suresh) and PW-3 (Prem), aluminium phosphide was mixed in the paratha which was served to the deceased, on the contrary, PW-1 (Ramesh Nayak) has stated that the aluminum phosphide was mixed in the liquor. Thus, the prosecution itself is not sure as to how the poison was administered to the deceased and the mode of administering the poison could also not be established. The prosecution has also failed to establish the chain of circumstance to prove the alleged offence against the accused-appellant. 16. Consequently, appeal filed by the accused-appellant deserves to be and is accordingly, allowed. Judgment and sentence dated 27.07.2012 passed by Additional Sessions Judge, Jhunjhunu, Camp, Chirawa is quashed and set aside. The appellant is acquitted of all the charges levelled against him. Appellant is in jail, he be set at liberty forthwith, if not required in any other case or for any other purpose. 17. Appellant is directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before Hon’ble the Apex Court. The bail bonds will be effective for a period of six months. 18. Suspension of sentence application also stands disposed. 19. The bail bonds will be effective for a period of six months. 18. Suspension of sentence application also stands disposed. 19. Record of the trial Court be returned back forthwith alongwith certified copy of this order.