JUDGMENT : Pritinker Diwaker, J. 1. Heard Shri Yogesh Srivastava for appellant Nos. 2, 3 & 4, Shri Manu Sharma, Amicus, for appellant No.1 and Shri J.K. Upadhyay, learned AGA for the State. 2. This appeal arises out of the impugned judgment and order dated 26.03.2009 passed by Special Judge (D.A.A.), Agra in S.T. No. 85 of 2002 (State Vs. Sanjoo @ Sanjay & others) arising out of Crime No. 78 of 2002, under Sections 394, 302, 411, 120-B, I.P.C, and Sessions Trial No. 97 of 2002, arising out of Crime Nos. 84 and 85 of 2002 under Sections 25 and 25/4 Arms Act, Police Station-New Agra, District Agra, convicting appellants Sanjay @ Sanjoo, Praveen Dubey, Banwari and Lala @ Kishan and sentencing them to undergo seven years rigorous imprisonment for the offence u/s 394 with a fine of Rs.5,000/-(each), in default thereof, to undergo additional simple imprisonment for one year; to undergo imprisonment of life for the offence under Section 302/34 of IPC with a fine of Rs.20,000/-(each), in default thereof, to undergo two years additional simple imprisonment; to undergo imprisonment of life for the offence under Section 120-B of IPC with a fine of Rs.10,000/-(each), in default thereof, to undergo one year simple imprisonment; convicting appellants Sanjay @ Sanjoo, Praveen Dubey and Banwari and sentencing them to undergo two years rigorous imprisonment for the offence under Section 411 of IPC; convicting appellant Sanjay @ Sanjoo and sentencing him to undergo two years rigorous imprisonment for the offence under Section 25 Arms Act with a fine of Rs.5,000/-in default thereof to undergo one year additional simple imprisonment; and convicting appellants Pradeep Dubey and Banwari and sentencing them to undergo one year rigorous imprisonment for the offence under Section 25/4 with a fine of Rs.2,000/-(each), in default thereof to undergo six months additional simple imprisonment; and it was directed that all the sentences shall run concurrently. 3. In the present case, name of the deceased is Sanjay, who died after sustaining one gun shot injury on his temporal region. On 21.01.2002 at 8.55 pm, on the basis of written report Ex.Ka-1, FIR Ex.Ka-26 was registered against unknown persons under Section 302 of I.P.C. 4. Inquest on the dead body was conducted on 21.01.2002, vide Ex.Ka-2, and the body was sent for postmortem, which was conducted on the second day, i.e. on 22.01.2002, vide Ex.Ka-3, by P.W.2. On 21.01.2002 at 8.55 pm, on the basis of written report Ex.Ka-1, FIR Ex.Ka-26 was registered against unknown persons under Section 302 of I.P.C. 4. Inquest on the dead body was conducted on 21.01.2002, vide Ex.Ka-2, and the body was sent for postmortem, which was conducted on the second day, i.e. on 22.01.2002, vide Ex.Ka-3, by P.W.2. As per post mortem report, one gun shot injury was found on the temporal region of the deceased and the cause of death was shock and hemorrhage as a result of ante mortem injury. 5. While framing charge, trial Judge has framed charge against the accused-persons under Sections 394, 302, 411, 120-B, I.P.C; whereas separate charge under Section 25 and 25/4 of Arms Act has also been framed against accused appellants, Sanjay @ Sanju, Praveen Dubey and Banwari. 6. So as to hold accused appellants guilty, prosecution has examined eleven witnesses. Statement of the accused-appellants were recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication. 7. By the impugned judgment and order, the trial Judge has convicted and awarded the sentence, as mentioned in paragraph-2 of this judgment. 8. Counsel for the appellants submits: (i) that there is no eye-witness account to the incident and the appellants have been convicted solely on the basis of weak circumstantial evidence. (ii) that the main piece of evidence against the appellants are statements of P.W.3 Punit Kumar Gautam and P.W.4 Hariom Gautam, who allegedly saw the appellants coming out from the house of the deceased. Even assuming that the accused persons had visited the house of the deceased, it could be because of some business transaction or for some other reasons. (iii) that motive has not been proved by the prosecution. (iv) that the circumstantial evidence collected by the prosecution is not conclusive and considering the law laid down by the Apex Court and this Court, it will not be safe for this Court to uphold the conviction. (v) that from accused Banwari and Praveen Dubey, knives have been seized, however, no knife injuries have been found on the body of the deceased. Likewise, from accused Sanjoo @ Sanjay, one country made pistol has been seized, but there is no evidence connecting the said seizure from the murder of the deceased or from the injuries sustained by him. (v) that from accused Banwari and Praveen Dubey, knives have been seized, however, no knife injuries have been found on the body of the deceased. Likewise, from accused Sanjoo @ Sanjay, one country made pistol has been seized, but there is no evidence connecting the said seizure from the murder of the deceased or from the injuries sustained by him. (vi) that the alleged recovery of money has been planted against the accused persons to make the offence serious, otherwise, recovery has not been proved by the prosecution as required under the law. (vii) that the appellants have already spent about 14 years of jail sentence. 9. On the other hand, supporting the impugned judgment and order of the trial Court, it has been argued by the State Counsel:- (i) that the conviction of the appellants, though based on circumstantial evidence, is in accordance with law and there is no infirmity in the same. (ii) that a sum of Rs.10,000/-each from accused Sanjoo @ Sanjay and Banwari and a sum of Rs.5,348/-from accused Praveen Dubey, belonging to the deceased, have been seized. 10. We have heard learned counsel for the parties and perused the record. 11. PW-1 Mukesh Gupta is a neighbor of the deceased, who immediately after hearing the cries of the deceased reached to his house, but he has not seen the accused persons near the place of occurrence. He also lodged the FIR. 12. PW-2 Dr. Yogesh Bhargava conducted the post mortem on the body of the deceased, one gun shot injury was found on the temporal region of the deceased and the cause of death was shock and hemorrhage as a result of ante mortem injury. 13. PW-3 Punit Kumar Gautam has stated that he knew the accused persons and on the date of incident, he saw one of the accused pressing the call bell and then the accused persons had entered the house of the deceased. He also saw the accused persons returning from the house of the deceased. He states that his uncle has asked as to whether he has heard the noise of gun shot, however, he denied the same. He admits that within 10 minutes, police has reached to the place of occurrence, but he did not inform the police about the accused persons gaining entry in the house of the deceased. He states that his uncle has asked as to whether he has heard the noise of gun shot, however, he denied the same. He admits that within 10 minutes, police has reached to the place of occurrence, but he did not inform the police about the accused persons gaining entry in the house of the deceased. He further states that even he did not inform the crowd gathered there about the accused persons. He admits that his uncle is an Assistant Public Prosecutor but how many reports have been lodged by him, he does not know. He further admits that he himself had not heard any sound of gun shot. He states that in his presence, PW-1 Mukesh Gupta had gone to lodge the report, but he did not inform anything to him. 14. PW-4 Hariom Gautam, who was attending the nature’s call at the relevant time, has stated that he heard the noise of gun shot. He also stated that he was informed by PW-3 Punit Kumar Gautam of hearing some gun shot noise. He states that after entering the house of deceased Anil Kumar and other police officers present there had asked him to visit the house and when an attempt was made to open the door, it did not open; it was pressed and then they entered in the said room, had gone to the drawing room where dead body of the deceased was lying. About the presence of light at the place of occurrence, he does not appear to be very sure. However, when I.O. was confronted, he had stated that this witness had informed him about the presence of light. 15. PW-5 Yogendra Kumar Goyal saw the accused persons about 100 meters away from the house of the deceased. He is also witness of recovery of one empty cartridge and blood stained knife, but there is no FSL or ballistic expert report. 16. PW-6 Rampal Yadav is the Investigating Officer, who has duly supported the prosecution case. 17. PW-7 Anil Kumar Singh, PW-8 Jitendra Kr. Goyal, PW-10 Ghanshyam Das and PW-11 Nathuram Maurya have assisted during investigation. 18. P.W.9 Kundan Lal is an Investigating Officer of the Arms Act. 19. Close scrutiny of the evidence makes it clear that there is no eye witness account to the incident and the entire prosecution case is based on circumstantial evidence. PW-7 Anil Kumar Singh, PW-8 Jitendra Kr. Goyal, PW-10 Ghanshyam Das and PW-11 Nathuram Maurya have assisted during investigation. 18. P.W.9 Kundan Lal is an Investigating Officer of the Arms Act. 19. Close scrutiny of the evidence makes it clear that there is no eye witness account to the incident and the entire prosecution case is based on circumstantial evidence. Main piece of evidence is the statement of P.W.3 Puneet Kumar Gautam, who saw the accused persons entering the house of the deceased and thereafter coming out from the same, however, merely on the basis of this evidence, it will not be safe for this Court to reach to the positive conclusion that it is the accused persons, who have committed the murder of the deceased. There is absolutely no evidence as to in what manner the murder of the deceased was committed by the accused persons. From accused Sanjoo @ Sanjay, one country made pistol has been seized, but there is no ballistic expert report connecting the said seizer in the commission of offence. Furthermore, from accused Banwari and Praveen Dubey, knives have been seized, but undisputedly, no knife injury has been found on the body of the deceased. So far as the recovery of the amount is concerned, the said recovery has not been proved by any independent witness and the basic ingredients of Section 411 I.P.C. have also not been proved by the prosecution as required under the law. Here also, the appellants are entitled to get the benefit of doubt. 20. Taking cumulative effect of the evidence, we are of the considered view that the evidence adduced by the prosecution does not appear to be sufficient on which basis the conviction of the appellants can be upheld. 21. The law in respect of conviction, based on circumstantial evidence, is very clear. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210 , the Supreme Court, while dealing with circumstantial evidence, observed as under: “11. In Hanumant Govind Nargundkar v. State of M.P. [ AIR 1952 SC 343 ], which is one of the earliest decisions on the subject, this court observed as under: “10. …... In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210 , the Supreme Court, while dealing with circumstantial evidence, observed as under: “11. In Hanumant Govind Nargundkar v. State of M.P. [ AIR 1952 SC 343 ], which is one of the earliest decisions on the subject, this court observed as under: “10. …... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be 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.” 12. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 none else.” 13. In Sharad Birdhichand Sarda v. State of Maharashtra [ (1984) 4 SCC 116 ], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (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.” 22. In Devi Lal vs. State of Rajasthan, (2019) 19 SCC 447 the Supreme Court, while dealing with circumstantial evidence, observed as under: 16. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116 . The relevant excerpts from para 153 of the decision is assuredly apposite: 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 & Anr. Vs. 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. Vs. State of Maharashtra [ (1973) 2 SCC 793 where the observations were made: (SC p.807, para 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." 17. It has further been considered by this Court in Sujit Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43 . It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused. 18. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused. 18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. 19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same." 23. Recently, the Supreme Court in Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh, 2022 SCC OnLine SC 1396, decided on 13.10.2022. while referring to the previous judgments on the question of circumstantial evidence, observed in paras 105, 106 and 117 as under:- “105. Addressing this aspect, however, is the following extract also from the same treatise “The Law of Evidence” fifth edition by Ian Dennis at page 483: “Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, fact-finders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not “merely fanciful”, it must follow that there is a reasonable doubt about guilt. If they think that there are possible innocent explanations for circumstantial evidence that are not “merely fanciful”, it must follow that there is a reasonable doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. It is sufficient to direct simply that the burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure. The very high standard of proof required in criminal cases minimises the risk of a wrongful conviction. It means that someone whom, on the evidence, the fact-finder believes is “probably” guilty, or “likely” to be guilty will be acquitted, since these judgments of probability necessarily admit that the fact-finder is not “sure”. It is generally accepted that some at least of these acquittals will be of persons who are in fact guilty of the offences charged, and who would be convicted if the standard of proof were the lower civil standard of the balance of probabilities. Such acquittals are the price paid for the safeguard provided by the “beyond reasonable doubt” standard against wrongful conviction.” [Emphasis supplied] 106. We must remind ourselves of what this Court observed in the case of Shankarlal Gyarasilal Dixit v. State of Maharashtra reported in (1981) 2 SCC 35 . We quote as under: “32. …..But, while formulating its own view the High Court, with respect, fell into an error in stating the true legal position by saying that what the court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond the “shadow of doubt”. In the first place, “shadow of doubt”, even in cases which depend on direct evidence is shadow of “reasonable” doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypotheses is far more rigorous than the test of proof beyond reasonable doubt.” [Emphasis supplied] xxx xxx xxx 117. Thus, none of the pieces of evidence relied on as incriminating by the courts below, can be treated as incriminating pieces of circumstantial evidence against the accused. Secondly, in its practical application, the test which requires the exclusion of other alternative hypotheses is far more rigorous than the test of proof beyond reasonable doubt.” [Emphasis supplied] xxx xxx xxx 117. Thus, none of the pieces of evidence relied on as incriminating by the courts below, can be treated as incriminating pieces of circumstantial evidence against the accused. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal (supra), this Court cautioned -“human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions”. This Court has held time and again that between “may be true” and “must be true” there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict. [See Ashish Batham v. State of M.P., (2002) 7 SCC 317 ].” 24. Keeping in mind the above proposition of law, facts and circumstances of the present case, we are of the view that the appellants are entitled for the benefit of doubt and, therefore, they are acquitted of all the charges. 25. For the foregoing reasons, we have no hesitation to hold that the prosecution has failed to prove the charges against the appellants beyond reasonable doubt and, therefore, the judgment and order of the court below is liable to be set aside. 26. The judgment and order of the trial court is set aside. The appeal of the appellants is allowed. The appellants shall be set free forthwith from the jail, unless wanted in any other case. 27. 26. The judgment and order of the trial court is set aside. The appeal of the appellants is allowed. The appellants shall be set free forthwith from the jail, unless wanted in any other case. 27. We appreciate the assistance offered by the learned counsel for the parties including the Amicus Curiae, who would be entitled to receive fee as per Rules. 28. Let a copy of this order along with the record be sent to the court below for information and compliance.