JUDGMENT : ALOK KUMAR VERMA, J. 1. The present Appeal has been filed against the judgment dated 08.10.2014/09.10.2014, passed by learned District and Sessions Judge, Nainital in Sessions Trial No. 44 of 2011, State vs. Zulfiqar alias Mota and Another, whereby the appellant-accused has been convicted and sentenced to undergo imprisonment for life along with a fine of Rs.20,000/- for the offence under Section 302 of the Indian Penal Code, 1860 (in short, “IPC”); he has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs.10,000/- for the offence punishable under Section 394 IPC; and, he has been further convicted and sentenced to undergo rigorous imprisonment for a period of two years for the offence under Section 411 IPC with default imprisonment. All the sentences have been directed to run concurrently. 2. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record is that the informant Ashok Kumar Pandey (PW1) had lodged an FIR (Ext. Ka.6) through his written information (Ext. Ka.1) that he and his wife are teachers. This morning his daughter and his son went to school at around 7 a.m. He and his wife also went to school. His mother Smt. Rewati Devi Pandey was at house. When he and his wife came their house at around 1:30 p.m., they saw that the articles inside the house were scattered and his mother’s dead body was lying in the kitchen and there was blood. At that time they did not see which item was missing. His mother had a Samsung mobile phone No. 9012666540, which was switched off. He thought that the miscreants had taken that mobile phone with them. 3. The police received the information about the dead body of the deceased at 13.40 hrs. on 01.09.2010. Sub-Inspector Pan Singh (PW10) reached the spot along with other police personnel. The inquest proceeding was conducted by him. 4. The First Information Report (Ext. Ka.6) was registered on 01.09.2010 at 17.05 hrs. against the unknown person under Section 302 IPC. 5. The investigation was handed over to Sub-Inspector Umed Singh Danu (PW15). 6. The post-mortem examination of the dead body of the deceased was conducted by Dr. C.P. Bhaisoda (PW7) at 7.45 p.m. on 01.09.2010. 7. A list dated 03.09.2010 (Ext. Ka.6) was registered on 01.09.2010 at 17.05 hrs. against the unknown person under Section 302 IPC. 5. The investigation was handed over to Sub-Inspector Umed Singh Danu (PW15). 6. The post-mortem examination of the dead body of the deceased was conducted by Dr. C.P. Bhaisoda (PW7) at 7.45 p.m. on 01.09.2010. 7. A list dated 03.09.2010 (Ext. Ka.2) was given by the informant to the police in which it was mentioned that one pair of gold earrings, which was worn by his mother, one pair of gold earrings, which were kept in the bedroom cupboard, Rs.6,000/- and a Samsung mobile phone were looted from his house. 8. During the investigation, it was revealed that the appellant had done carpentry work at the informant’s house. On the morning of 01.09.2010, he was seen with one Naresh and Istiaq outside the informant’s house. 9. The appellant was arrested on 15.10.2010. He confessed his guilt. The confessional statement of the appellant led to the recovery of a Samsung mobile phone of the deceased (International Mobile Equipment Identity (in short, “IMEI”) number 353350032799810) (Material Ext.1). There was no Subscriber Identity Module (in short, “SIM”) in the mobile phone. A pair of gold tops (Material Ext.2) were recovered from his house. The police seized the said articles vide Memo Ext. Ka.4. Call details of the deceased’s mobile phone and the appellant’s mobile phone number 7827670183 were obtained by the investigating officer. After completion of the investigation, Sub-Inspector Umed Singh Danu (PW15) filed the charge-sheet (Ext. Ka.27) against the appellant along with Istiaq under Sections 302, 394, 411 and Section 34 IPC. 10. The charges under Section 302 IPC read with Section 34 IPC, Section 394 IPC and Section 411 IPC were framed against the appellant and Istiaq. As the appellant and Istiaq pleaded innocence, trial was held. 11. In order to establish the accusations, prosecution examined 15 witnesses. 12. Statements under Section 313 of the Code of Criminal Procedure, 1973 were recorded. Appellant and Istiaq denied all the incriminating evidence, produced by the prosecution. According to the appellant, he does not know carpentry work. 13. As the appellant and Istiaq pleaded innocence, trial was held. 11. In order to establish the accusations, prosecution examined 15 witnesses. 12. Statements under Section 313 of the Code of Criminal Procedure, 1973 were recorded. Appellant and Istiaq denied all the incriminating evidence, produced by the prosecution. According to the appellant, he does not know carpentry work. 13. The trial court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment while acquitting Istiaq of the charges under Section 302 IPC read with Section 34 IPC, Section 394 IPC and Section 411 IPC convicted the appellant under Section 302 IPC, 394 IPC and Section 411 IPC. 14. Mr. Nandan Arya, learned counsel for the appellant contended that the appellant has been falsely implicated in this matter. The confessional statement is not admissible. The alleged recoveries are false. There was no independent witness at the time of the alleged recoveries. The alleged recovered tops were not identified. There are serious contradictions in the statements of prosecution witnesses, and, no reliable evidence is available on record against the appellant. 15. Mr. Amit Bhatt, learned Government Advocate has supported the impugned judgment. He contended that the chain of circumstances proved on the record against the appellant is as under: (i) The appellant had done carpentry work at the informant’s house and on the morning of the day of incident, he was seen outside the informant’s house. (ii) The appellant had confessed his guilt. (iii) A mobile phone of the deceased and a pair of gold earrings were recovered from the appellant. 16. The present case rests on the circumstantial evidence. No one had seen the assault by the appellant on the deceased. 17. It is a well established law that in cases of the circumstantial evidence, all circumstances relied upon by the prosecution must be established by cogent and reliable evidence and all the proved circumstances must provide a complete chain. The chain of evidence should be 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. 18. The chain of evidence should be 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. 18. In Sharad Birdhi Chand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 , the Hon’ble Supreme Court held that when a case rests on circumstantial evidence, such evidence must satisfy these tests: (i) The circumstances from which the conclusion of guilt is to be drawn, should be fully established. (ii) The facts so established should be consisted only with the hypothesis of the guilt of the accused, that it is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved. (v) There must be a chain of evidence to show 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 probabilities, the act must have been done by the accused. 19. The principle of circumstantial evidence has been reiterated by the Hon’ble Supreme Court in a plethora of cases. In C. Chenga Reddy vs. State of A.P. (1996) 10 SCC 193 , the Hon’ble Supreme Court observed, “In a case base on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances, must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” The same principles were reiterated by the Hon’ble Supreme Court in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 , Mohd. Arif alias Ashfaq vs. State (N.C.T. of Delhi), (2011) 13 SCC 621 , Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 and a number of other decisions. 20. On the basis of the above well-settled principles, we proceed to examine whether the appellant can be held to be guilty. 21. Arif alias Ashfaq vs. State (N.C.T. of Delhi), (2011) 13 SCC 621 , Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 and a number of other decisions. 20. On the basis of the above well-settled principles, we proceed to examine whether the appellant can be held to be guilty. 21. PW1 Ashok Kumar Pandey is the informant and PW2 Smt. Vinita Pandey is the wife of the informant. They stated that when they came their house at around 01:30 p.m. on 01.09.2010, they noticed that the articles inside the house were scattered and the dead body of Smt. Rewati Devi Pandey was lying in the kitchen and there was blood on the floor. 22. PW3 Smt. Maya Sharma has stated that she used to do sweeping work at the informant’s house. On 01.09.2010 at 07:30 a.m., she had gone to the informant’s house for work. By that time, the informant, his wife and their two children had gone to school. The informant’s mother had opened the door. When she was leaving the house after finishing her work at 08:30, a newspaper hawker came there. She called the informant’s mother. The informant’s mother came and took the newspaper. She had locked her house from inside. She has further stated that when she came out, Zulfiqar and Naresh were reading newspapers on the platform in front of the house. At around 09:30, she saw both the accused going out of the informant’s house. She received the information about the murder of the deceased at 06:00 p.m. on the same day. 23. PW4 Jitendra was the newspaper hawker. He has stated that on 01.09.2010 at about 08:30 a.m., two boys had bought the newspapers from him. The informant’s house was about 125 steps away from where those two persons were sitting. He had given the newspaper to the woman working in the informant’s house. At that time, she was inside the gate. 24. PW5 Jagdish Chandra Joshi is the witness of the inquest proceedings. He has stated that on the morning of the incident, he saw Zulfiqar and Naresh coming out of the gate of the informant. At that time, Istiaq was also outside the gate. 25. PW6 Sub-Inspector Pratap Singh Negi and PW14 Sub-Inspector Vinod Yadav are the witness to the arrest of the appellant Zulfiqar and recoveries. 26. PW7 Dr. He has stated that on the morning of the incident, he saw Zulfiqar and Naresh coming out of the gate of the informant. At that time, Istiaq was also outside the gate. 25. PW6 Sub-Inspector Pratap Singh Negi and PW14 Sub-Inspector Vinod Yadav are the witness to the arrest of the appellant Zulfiqar and recoveries. 26. PW7 Dr. C.P. Bhaisoda, had conducted the post-mortem examination of the dead body of the deceased. He has proved the post-mortem report (Ext. Ka.5). According to him, the cause of death was shock and haemorrhage due to cut throat injury to neck following sharp cutting injury to neck by sharp cutting weapon. 27. PW8 Sub-Inspector Hem Chandra Joshi is the scriber of the First Information Report (Ext. Ka.6). 28. PW9 Kamar Aalam has stated that he used to receive calls from the mobile phone of the accused Zulfiqar. 29. PW10 Sub-Inspector Pan Singh and PW12 Ghanshyam Pandey are the witnesses of the inquest proceedings. 30. PW11 Naresh Kumar Verma did not support the case of the prosecution. 31. PW13 Atikurrahman has stated that Zulfiqar used to learn carpentry work from Hazi Asif. 32. PW15 Sub-Inspector Umed Singh Danu is the investigating officer. 33. According to the appellant, he did not know the work of carpenter. Ashok Kumar Pandey (PW1) has stated in his cross-examination that two - three months before the incident, Zulfiqar had left his work as a carpenter at his house. Smt. Vinita Pandey (PW2) has stated that before this incident, Zulfiqar, Hazi Asif and a man named Mian had worked as carpenters at her house. Ashok Kumar Pandey (PW1) has stated in his examination-in-chief that Zulfiqar and Naresh were sent by his fellow teacher Atikurrahman while Atikurrahman (PW13) has stated that Zulfiqar used to learn carpentry work from Hazi Asif but he had not asked them to do the carpentry work at the informant’s house. Therefore, in view of these contradictions, the prosecution’s case that the appellant had actually worked as a carpenter at the informant’s house is not found reliable. 34. According to the prosecution, Zulfiqar, Naresh and Istiaq were involved in the murder of the deceased. The trial court has acquitted the accused Istiaq. The order of acquittal of the accused Istiaq has not been challenged by the prosecution. As per the prosecution, role of the appellant Zulfiqar and Naresh was same. 34. According to the prosecution, Zulfiqar, Naresh and Istiaq were involved in the murder of the deceased. The trial court has acquitted the accused Istiaq. The order of acquittal of the accused Istiaq has not been challenged by the prosecution. As per the prosecution, role of the appellant Zulfiqar and Naresh was same. But, the prosecution has also failed to clarify whether any charge-sheet was filed against the accused Naresh. Therefore, these circumstances also make the prosecution case doubtful. 35. Section 25 of the Indian Evidence Act is broadly worded and it excludes from evidence a confession made by the accused to a police officer under any circumstances and a confession made by a person while he was in the custody of the police is also inadmissible under Section 26 of the Indian Evidence Act unless made in the immediate presence of a Magistrate. 36. As per the written information (Ext. Ka.1) of the informant Ashok Kumar Pandey (PW1), he and his wife saw that the articles inside the house were scattered and his mother’s dead body was lying in the kitchen. At that time, they did not see which item was missing. Therefore, a list dated 03.09.2010 (Ext. Ka.2) was given by him to the police in which it was mentioned that one pair of gold earrings, which was worn by his mother, one pair of gold earrings, which was kept in the bedroom cupboard, Rs.6,000/- and a Samsung mobile phone were looted from his house. Contrary to his written information (Ext. Ka.1), he has stated in his examination-in-chief that after seeing his mother, he searched all the articles in the house. He also searched the cupboard and noticed that the gold earrings of his mother were also missing. 37. As per the recovery memo, there was no independent witness present at the time of the alleged recoveries. After the alleged recovery, the recovered articles were not identified by the informant or his wife. It has been stated by Sub-Inspector Umed Singh Danu, the Investigating Officer (PW15), in his cross-examination that no disclosure statement of the appellant was recorded before the recovery. When there is no disclosure statement then without disclosure statement recovery is meaningless. Therefore, the alleged recovery cannot be relied upon. 38. Ashok Kumar Pandey (PW1) has stated in his cross-examination that he had not given any document related to Samsung mobile phone to the police. When there is no disclosure statement then without disclosure statement recovery is meaningless. Therefore, the alleged recovery cannot be relied upon. 38. Ashok Kumar Pandey (PW1) has stated in his cross-examination that he had not given any document related to Samsung mobile phone to the police. Sub-Inspector Umed Singh Danu, the Investigating Officer, (PW15) has stated in his cross-examination that he does not know in whose name the IMEI number of the Samsung mobile phone was issued and the call details obtained by him are not verified. 39. The IMEI number is a unique number for identifying a device. It identifies the mobile phone’s model, date of purchase etc. IMEI numbers help track down the stolen mobile phone. The prosecution has not produced any reliable evidence that the Samsung mobile phone number 9012666540 belonged to the deceased Smt. Rewati Devi Pandey. 40. In Bhagwan Singh and Others vs. State of M.P. (2002) 4 SCC 85 , the Hon’ble Supreme Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other of his innocence, the view which is favorable to the accused should be adopted. 41. It is also a basic rule of the criminal jurisprudence that suspicion, however, strong cannot take place of proof. In Sujit Biswas vs. State of Assam, AIR 2013 SC 3817 , the Hon’ble Supreme Court held that suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be true” and “must be true” must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. 42. The large distance between “may be true” and “must be true” must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. 42. In light of above discussion, it is found that the statements of the prosecution witnesses do not inspire confidence to convict the appellant as creating serious doubt. 43. Thus, taking into consideration the nature and quality of over all evidence, oral and documentary, on record, we find it difficult to uphold the conviction of the appellant under Sections 302, 394 and Section 411 IPC and in the facts and circumstances of the case, he deserves to be acquitted of these charges. The appeal is allowed. 44. Accordingly, the judgment of conviction and sentence dated 08.10.2014/ 09.10.2014 passed against the appellant in Sessions Trial No. 44 of 2011, State vs. Zulfiqar alias Mota and Another is set aside. Appellant is acquitted of the charges under Sections 302, 394 and Section 411 IPC. 45. The appellant is on bail. His bail bonds are cancelled and the sureties are discharged.