JUDGMENT : UMESH CHANDRA SHARMA, J. 1. Heard Shri Ashok Kumar Tripathi learned counsel for the sole appellant and learned AGA for the state. 2. This appeal has been preferred against the judgment and order dated 20.1.2014 passed by learned Additional Sessions Judge Court No.9, Kanpur Dehat, in S.T. No. 446 of 2011 (State Vs. Sunil Kumar Katiyar) arising out of Case Crime No. 104 of 2011 under Section 302 I.P.C. Police Station-Sikandara, Kanpur Dehat, by which the accused-appellant Sunil Kumar Katiyar has been convicted under Section 302 I.P.C. and has been sentenced for life imprisonment with fine of Rs.10,000/-with default stipulation. 3. In brief, facts of the case are that on 21.7.2011 informant, Pramod Kumar, lodged an F.I.R. with the averments that his younger sister Kiran Devi Katiyar was married with accused Sunil Kumar Katiyar about 26 years back. Out of their wed lock, three children have been born. The elder son named Ankur Katiyar is doing B.Tech in Noida, the daughter Anupama is the student of Rajpur Degree College and the younger son Abhai Katiyar, studies at Sikandra. The accused used to do farming in village Nandana and lives in mohalla Muhammadnagar in Sikandara. His sister used to live in both the houses from time to time. His brother-in-law (Bahnoi), the accused, used to take alcohol etc. and his sister used to forbid him on which he used to beat his sister in anger which was complained to the accused many times. On 19.7.2011, he was informed that the dead body of his sister was lying on the second floor of the house at Muhammadnagar. The information was given to the police station by his cousin Ramesh Kumar Katiyar on which basis postmortem was conducted. No other person used to visit to his sister’s house. She was murdered by Sunil Kumar and he was missing since then. The informant requested to lodge the F.I.R. and take legal action against the accused. 4. On the basis of above written complaint, Ex. Ka-1, the F.I.R. was lodged and chik F.I.R. at crime no. 04 of 2011 under Section 302 I.P.C. was lodged and was entered into Kayami G.D. on 4:30 P.M. on 21.7.2011. 5. After this information P.W.3, S.I., Aditya Narain Pandey visited the place and prepared inquest, Ex.Ka-2, and also prepared papers like challan nash, Ex.Ka-3, photo nash Ex.Ka-4, letter to R.I. Ex. Ka-5, letter to C.M.O. Ex. 04 of 2011 under Section 302 I.P.C. was lodged and was entered into Kayami G.D. on 4:30 P.M. on 21.7.2011. 5. After this information P.W.3, S.I., Aditya Narain Pandey visited the place and prepared inquest, Ex.Ka-2, and also prepared papers like challan nash, Ex.Ka-3, photo nash Ex.Ka-4, letter to R.I. Ex. Ka-5, letter to C.M.O. Ex. Ka-6 and sent the dead body for postmortem. 6. Dr. Riaz Ali Mirza, P.W.-4 conducted the postmortem and prepared post mortem report, Ex. Ka-7. S.O. Sanjay Kumar Gupta took the investigation and prepared site plan, Ex. Ka-6. During the investigation he also recovered Lodha (pestle) alleged to be used in commission of crime and also prepared site plan Ex. Ka-10, recorded the statement of the witness and after finding the case under Section 302 I.P.C., submitted the charge-sheet Ex. Ka-11. 7. The learned Magistrate took the cognizance and committed the case for trial to the Court of Sessions. On 11.01.2012, the appellant was charged u/s 302 IPC to which he pleaded not guilty and sought trial. 8. Following witnesses were examined by the prosecution to prove the guilt of the accused: PW-1 Pramod Kumar Katiyar PW-2 Ramesh Kumar Katiyar PW-3 Atitya Narain Pandey PW-4 Dr. R. A.Mirza PW-5 Abhai Katiyar PW-6 Anupam Katiyar PW-7 Sanjay Gupta PW-8 Kunwar Pal 9. Following documentary evidence were relied on by the prosecution: Ex. Ka.-1 Written report Ex. Ka.-2, Panchanama Ex. Ka.-3, Challan Nash Ex. Ka.-4, Photo Lash Ex. Ka-5 Letter to R.I. Ex. Ka.-6 Letter to C.M.O. Ex. Ka.-7 Postmortem report Ex. Ka.-8 Site plan Ex.Ka.-9, Recovery Memo (Pestle) Ex. Ka.-10, Site plan Ex. Ka.- 11, Charge-sheet Ex. Ka.-12 Chick F.I.R. Ex. Ka.-13 and Kayami G.D. Material Ex.-1 Pestle as Weapon of offence 10. After closure of prosecution evidence, the statement of the accused u/s 313 Cr.P.C was recorded, wherein, he outrightly denied all the charges and incriminating evidence against him and claimed to be innocent. 11. In brief, evidence of the witnesses is reproduced hereinbelow: (a) P.W.-1, Pramod Kumar Katiyar, informant, has given evidence in support of written complaint. He has deposed that his brother-in-law used to consume alcohol and drugs. Whenever his sister (deceased) forbid the accused, he used to quarrel with her and beat her. The accused would beat his children coming to her rescue. He has deposed that his brother-in-law used to consume alcohol and drugs. Whenever his sister (deceased) forbid the accused, he used to quarrel with her and beat her. The accused would beat his children coming to her rescue. The informant and his family members whenever complained about the matter, the he used to promise not to repeat but few days later he would repeat the same. On 19.7.2011, when he was in Mahoba, he was informed by his cousin Ramesh Katiyar that his sister had been killed. After getting the information, he reached Sikandara between 9-10 P.M., he came to know that the dead body was sent for postmortem. He went to the postmortem house at Ramabai Nagar where he saw the dead body. He and his brother had participated in last rituals of his sister. His brother Ramesh had informed that Sunil had killed the deceased, thereafter on 21.7.2011 at about 4:30 P.M. the lodged the F.I.R. This witness has proved the written complaint Ex. Ka-1. From the perusal of above evidence, it is very much clear that this witness is not an eye-witness and he has deposed as he had heard from P.W.-2. (b) P.W.-2, Ramesh Kumar Katiyar, has deposed that on 19.7.2011 at about 12:00 P.M., his cousin Sarvesh Kumar had informed him on mobile that his cousin Kiran Devi had been killed. On being informed, he reached Sikandara, where he saw that dead body of Kiran was lying on the second floor of the house. There were injuries on her back, chest and eyes. She was not happy in her in-laws house. The accused was addicted to drugs which was cause of the quarrel between the two. The accused had two houses, one in village Nandana and another in Sikandra. The deceased used to live at both the places. He had warned the accused not to beat his sister but to no avail. He had orally informed police station Sikandra. After being informed, police had reached at 3:00 P.M. and had conducted inquest. He was one of the punch and had also signed inquest report. The witness has confirmed his presence at post-mortem house and also at the time of funeral of the deceased which was conducted by her in laws. He had orally informed police station Sikandra. After being informed, police had reached at 3:00 P.M. and had conducted inquest. He was one of the punch and had also signed inquest report. The witness has confirmed his presence at post-mortem house and also at the time of funeral of the deceased which was conducted by her in laws. According to this witness, his sister had been killed by the accused Sunil who was an alcohol addict and drunkard and which was opposed by his sister. The I.O. had recorded his statement. (c) P.W.-3, S.I. Aditya Narain Pandey, has proved inquest report Ex. Ka-2 and related paper viz Ex. Ka-3 to Ex. Ka-6. (d) P.W.-4, Dr. Riaz Ali Mirza, has proved the post-mortem report, Ex. Ka-7. This witness has noted following injuries on the person of the deceased: External Examination: There was drooling, mouth was half open, eyes were closed. There was staining on the back part of the dead body. Rigor mortis was over. There was green mark on the right side of lower part to her private part. The marbidity was on the lower part, both shoulders and on the face. Ante-mortem Injuries: i. Scrap wound ½ cm X 0.3 cm on the left side of the face next to the nose. ii. Contusion 20 cm X 10 cm on both sides of the chest, there was clotted blood. iii. Contusion 10 cm X 6 cm on the right side of just below the ribs on the upper abdomen. iv. Contusion 11 cm S. 6.1/2 cm on the front and outer part of right leg below 15 cm from the right knee. v. Blood was oozing from vagina. Internal Examination: This witness found that brain was pale and 3rd and 6th ribs were fractured. Sternam was also fractured at the level of fifth ribs. Lungs were torn and pale. Both the heart cavity were empty. 500 M.L. was found in the chest cavity and 1.5 liter blood was found in the abdomen cavity. There was semi digested food in the small and large intestine. Gallbladder was half empty, liver was torn. Spleen was pale. According to this witness, the deceased had died due to excessive bleeding. The deceased would have died 1 and half day to two days ago. This witness has proved post mortem report Ex. Ka-7. There was semi digested food in the small and large intestine. Gallbladder was half empty, liver was torn. Spleen was pale. According to this witness, the deceased had died due to excessive bleeding. The deceased would have died 1 and half day to two days ago. This witness has proved post mortem report Ex. Ka-7. (e) P.W.-5, Abhay Katiyar, son of the deceased and the accused, has given hostile evidence and deposed that there was no quarrel between his parents. His father did not take any drug. His father did not beat his mother a day before the incident and his father had gone to Kota. This witness was declared hostile. In the cross-examination by the prosecution this witness did not support the prosecution version. (f) P.W-6, Km. Anupam Katiyar, daughter of the deceased, is alleged to be the eye-witness of the incident has also not supported the prosecution version and has given similar statements to that of her brother, P.W.-5. (g) P.W.-7, Sanjay Kumar Gupta, has proved the site plan Ex. Ka-8. This witness had recorded the statements of all the witnesses relating to the accused and also prepared recovery memo of Pestle Ex. Ka-9. This witness has also proved site plan regarding recovery of pestle. (h) P.W.-8, Constable Moharrir, proved the chik F.I.R., Ex. Ka-12 and carbon copy Kayami G.D. Ex. Ka-13, to be in his handwriting and signature. 12. The accused denied the charges and allegations levelled against them under Section 313 Cr.P. C. and has stated that the witnesses P.W.1 & 2 have given evidence on account of enmity with him. He has further stated that one day before the incident, he had gone to his brother at Kota, Rajasthan. He was not present on the spot. He has been falsely implicated on account of enmity. 13. In defence two witnesses D.W.-1 and D.W.-2 have been examined; (I) D.W.-1, Sushil Kumar; has deposed that he has been living at Kota for the last five years where he was a teacher in Resonance Coaching Centre and teaches chemistry. Accused is his biological brother. The incident took place on 19.7.2011. His brother had come to him one day before the incident. His brother had constructed a house in Sikandara, linter was open and plaster was yet to be done for which his brother had come to him to take money. Accused is his biological brother. The incident took place on 19.7.2011. His brother had come to him one day before the incident. His brother had constructed a house in Sikandara, linter was open and plaster was yet to be done for which his brother had come to him to take money. He got the information of the incident at about 1:30 P.M. on phone. His brother was also there. After getting the information, he and his brother reached Kanpur from his Car RJ 20 CB 2994 and reached Nandana at about 4-5 P.M. in the evening. Preparation of last rites was going on. The distance between Kota and Nandana is about six hundred kilometer, they reached late as on the way the vehicle was broken down. The last ritual were performed by his brother Sunil Kumar. The informant and Ramesh Kumar were not there. Anpuam and Abhay had told him that when linter was open, some bricks were left there which had fallen down on the deceased. There was cordial relation between his brother and bhabhi. His brother does not consume liquor or anyother intoxication. (II) D.W.-2, Vipin Katiyar, has deposed that house of the accused Sunil Katiyar was at the distance of 10-15 steps from his house. On 18.7.2011, accused met to him at Sikandra Bus Stand. On asking, the accused had told him that he was going to Kota Rajasthan to his brother. This witness has further deposed that on 19.7.2011 while he was going through the news paper, he heard the news that wife of Sunil Kumar has died. On which he went to the house of Sunil Kumar and saw that his wife was lying dead on a cot, some part of the roof were lying on her chest. Sunil Kumar was not there. Sunil was informed by his son on phone. After getting the information, Sunil alongwith his brother Sushil reached village at about 4-5 P.M. on 20.7.2011. Sunil had performed last rites of his wife and he was also present there. The appeal is being decided as under: 14. From the above facts and evidence, it is clear that it is not a case of direct evidence but it is based on circumstantial evidence in which if the chain of the circumstances is complete only then an accused can be convicted. The appeal is being decided as under: 14. From the above facts and evidence, it is clear that it is not a case of direct evidence but it is based on circumstantial evidence in which if the chain of the circumstances is complete only then an accused can be convicted. In such cases, motive, last seen, recovery, extra judicial confession like necessary elements are also considered. It has to be seen as to whether the aforesaid ingredients necessary for the conviction of an accused have been sufficiently established and proved by the prosecution or not. These necessary ingredients are being discussed herein below in the light of facts of the case and evidence available on record. (a) Motive : According to the prosecution and the evidence of the P.W.1 and P.W.2, the accused used to drink and take drug and when the deceased used to forbid him, a quarrel would take place between them and when children come to save the deceased, the accused would also beat them. This fact has not been accepted by the accused and P.W.5, P.W.6 or P.W.7 S.I./I.O. Sanjay Gupta have also not given affirmative evidence in support of the prosecution regarding consumption of intoxication by the accused. D.W.1 & D.W.2, Sushil Kumar and Vipin Katiyar, have also not admitted that the deceased used to consume intoxication prior to the incident or thereafter. The learned trial Court has accpeted the aforesaid motive on the basis of statement recorded under Section 161 Cr.P.C. which is not admissible in evidence. Therefore, the motive put forth by the prosecution can not be said to be proved. In Bhaskar Rao and Others Vs. State of Maharashtra, (2018) 6 SCC 591 ; Ujjagar Singh Vs. State of Punjab, (2007) 13 SCC 90 , it has been held that the motive has significance in cases based on circumstantial evidence. In Shivaji Chintappa Patil Vs. State of Maharashtra, 2021 0 Supreme (SC) 121, it has been held that in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. If motive could not be proved, the chain of circumstances would not be said to be completed. The above citations apply in favour of the appellant and it is concluded that there was no motive with the appellant to kill the deceased. If motive could not be proved, the chain of circumstances would not be said to be completed. The above citations apply in favour of the appellant and it is concluded that there was no motive with the appellant to kill the deceased. (b) Alibi and last seen: In this case an alibi has been taken by the accused that one day before the incident, he had gone to Kota and he was not present on the spot with the deceased. Similar statement has been given by P.W.5, son Abhay Katiyar, P.W.6 Km. Anupam, D.W.1, Sushil Kumar and D.W.2, Vipin Katiyar, neighbour. D.W.1 Sushil Kumar has deposed that one day prior to the incident, the accused Sunil had come to him to take money for completion of the house as the linter was open and plaster was yet to be done. According to this witness after being informed about the incident, he alongwith the deceased came to Kanpur by his car RJ 20 CB 2994. They reached village at about 4-5 P.M. on 20.7.2011 when last rites of the deceased was under preparation and it was performed by the accused. Anupam and Abhay had informed him that when linter was open, some bricks remained stuck to it and the incident occurred as it fell on the deceased. The relation between the accused and the deceased was good and there was no dispute between them. The accused did not take intoxication. Similar statement has been given by D.W.2, Vipin Katiyar, that house of the accused Sunil Katiyar was at the distance of 10-15 steps from his house. On 18.7.2011 accused met to him at Sikandra Bus Stand. On asking, the accused had told him that he was going to Kota Rajasthan to his brother. This witness has further deposed that on 19.7.2011 while he was going through the news paper, he heard the news that wife of Sunil Kumar has died, on which he went to the house of Sunil Kumar and saw that his wife was lying dead on a cot, some part of the roof were lying on her chest. Sunil Kumar was not there. Sunil was informed by his son on phone. After getting the information, Sunil alongwith his brother Sushil reached village at about 4-5 P.M. on 20.7.2011. Sunil had performed last rites of his wife and he was also present there. Sunil Kumar was not there. Sunil was informed by his son on phone. After getting the information, Sunil alongwith his brother Sushil reached village at about 4-5 P.M. on 20.7.2011. Sunil had performed last rites of his wife and he was also present there. Thus, from the above evidence, it is very much clear that the accused was not present on the spot on the date and time of the incident. Hence, it has not been proved that the deceased was lastly seen in the company of the accused soon before her death. In Kulwinder Singh Vs. State of Punjab, AIR 2007 SC 2868 , it has been held that there must be proximity of time and place. In this case it is lacking. In Ganpat Singh Vs. State of M.P., (2018) 2 SCC (Cri) 159, it has been observed, it would be difficult in some cases to positively establish that the deceased was lastly seen with the accused when there is a long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in such cases. In this case the prosecution has failed in establishing that soon before death the deceased was with the accused but it has been proved that when the accused was out of the house, the deceased has died. On the basis of above discussion this Court is of the conclusion that the chain of circumstantial evidence such as last seen together has not been proved beyond reasonable doubt and it is concluded that the deceased had died when the accused was in Kota with his brother. (c) Extra judicial confession-The prosecution has not taken the pleas of extra judicial confession by the accused though as per I.O., the accused had confessed his guilt before him and at his disclosure statement the pestle was recovered from the backside plot of the house on his pointing. Such statements written in the case diary has not been proved by the I.O. and such confessions can not be proved in view of Section 25 of the Evidence Act. (d) Recovery: According to the I.O., the accused confessed his guilt and made a disclosure statement on which the blood stained pestle used in commission of crime was recovered on his pointing. (d) Recovery: According to the I.O., the accused confessed his guilt and made a disclosure statement on which the blood stained pestle used in commission of crime was recovered on his pointing. So far as recovery is concerned, Suresh Kumar, Pratap Narain, Nirmal Sigh, Gopi Shyam and Vijay Kumar were shown to be witnesses of the recovery memo but none of them has been examined to prove the recovery memo. P.W.7, I.O. has been examined to prove the recovery memo who has proved his handwriting and signature on the recovery memo Ex. Ka-9. It is argued that since P.W.7 is the I.O. and is an interested person, therefore, it was necessary to examine the independent witness before whom the alleged recovery is said to be made. Therefore, the recovery of the pestle is not free from doubt. It is also noteworthy that no FSL report has been obtained regarding the allegedly recovered pestle that it was containing human blood and the blood belonged to the deceased. No question has been put by learned A.D.G.C. (Crl.) that the injuries found on the person of the deceased could occur from the pestle. In the cross-examination P.W.-4 Dr. Riaz Ali has admitted that the injury no. 1 & 4 may occur if a person falls from the stair and injury nos. 2 & 3 may occur if a person falls on the hard object. Thus, the witness P.W.4 who had conducted the postmortem has not deposed that the injuries found on the person of the deceased may occur from a pestle. Therefore, this Court is of the view that the prosecution has failed in establishing that the pestle M Ex. 1 was used in commission of crime and it was containing human blood or it was recovered on the pointing of the accused. (e) It is also not a case of the prosecution that after the commission of crime, the accused had absconded. Sometimes abscondence of an accused is considered in favour of the prosecution but in this case it has been proved that after knowing that his wife has died, he returned home directly from Kota. (f) Applicability of Section 106 of the Indian Evidence Act-It is not denied that the accused and the deceased were not living together in their dwelling house but it could not be proved that at the time of commission of crime the accused was present there. (f) Applicability of Section 106 of the Indian Evidence Act-It is not denied that the accused and the deceased were not living together in their dwelling house but it could not be proved that at the time of commission of crime the accused was present there. Section 106 Evidence Act is as under:- “106. Burden of proving fact especially within knowledge.— When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.” In P. Mani Vs. State of Tamilnadu, AIR 2006 SC 1319 , it has been held that it is for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, accused and deceased were last seen together inside a room. Hence Section 106 of the Evidence Act can not be said to have any application whatsoever. In Kailash Chand Vs. State of Rajasthan, (2017) 11 SCC 268 , it has been held that it is trite that prosecution has to stand on its own legs and sufficient evidence should be produced to prove the allegation, no aid of Section 106 can be taken by the Trial Court. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused, but the Section would apply to the cases where prosecution has succeeded in proving facts for which reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference. In para 22 of Shivaji Chintappa Patil (Supra), it has been held that --- 22. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. In para 22 of Shivaji Chintappa Patil (Supra), it has been held that --- 22. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused. In para 28.1 of Gargi Vs. State of Haryana, 2019 0 Supreme SC 1042, it has been held that--- 28.1. Insofar as the ‘last seen theory’ is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:- “10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused……” In Satye Singh and Another Vs. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused……” In Satye Singh and Another Vs. State of Uttrakhand, (2022) 5 SCC 438 , in this case the deceased was the wife, the entire case was based on circumstantial evidence as there was no eyewitness to the alleged incident, injuries on the dead body were ante mortem in the nature, no incriminating articles were recovered during the investigation and no attempt was made to collect any evidence much less cogent evidence to connect the accused with the alleged crime. The deceased had left house on previous evening of the alleged incident. It was held that circumstances howsoever strong can not take place of proof and guilt of accused have to be proved by prosecution beyond reasonable doubt. Prosecution had miserably been failed in proving the entire chain of circumstances that the alleged act was committed by the accused only and none else. Hence the order of conviction and sentencing passed by the High Court of Uttrakhand was quashed and the accused were acquitted. In Devilal; Babulal vs. State of Rajasthan, 2019 Law Suit (SC) 36, it has been held that while scrutinizing the circumstantial evidence, a Court has to evaluate it to ensure the chain of events clearly and completely established to rule out any reasonable likelihood of innocence of the accused, there must be evidence to come to conclusion that there can not be a person other than the accused who alone is the perpetrator of the alleged crime and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused. In para 11 of Shivaji Chintappa Patil (Supra) similar principles have been laid down regarding the cases based on circumstantial evidence. “11. The law with regard to conviction on the basis of circumstantial evidence has been very well crystalised in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra :- “153. In para 11 of Shivaji Chintappa Patil (Supra) similar principles have been laid down regarding the cases based on circumstantial evidence. “11. The law with regard to conviction on the basis of circumstantial evidence has been very well crystalised in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra :- “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. 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 (1973) 2 SCC 793 where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] “19. …..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.” 15. On the basis of above discussion this Court is of the view that any ingredient mandatory for conviction and sentencing of an accused in a case based on circumstantial evidence has not been proved beyond reasonable doubt and chain of circumstantial evidence also could not be established against the accused-appellant. On the basis of above discussion this Court is of the view that any ingredient mandatory for conviction and sentencing of an accused in a case based on circumstantial evidence has not been proved beyond reasonable doubt and chain of circumstantial evidence also could not be established against the accused-appellant. Thus, this Court concludes that the order of conviction and sentencing passed by the learned Trial Court is not liable to be sustained in the eye of law and is liable to be set-aside. Order The appeal is allowed and the impugned order of conviction and sentencing dated 20.1.2014 is hereby quashed. Let the appellant be set free from jail. This order be sent immediately to the Jail Superintendent concerned. Lower Court record be sent back along with a copy of this judgment.