JUDGMENT K.J. Thaker, J. 1. The present appellants have preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 25.6.2010 passed by the learned Addl. Sessions Judge, Fast Track Court No. 2, Bhavnagar in Sessions Case No. 212/2009, whereby, the learned trial Judge has convicted the appellants under sec. 302 read with sec. 34 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/- each, in default, to undergo further R/I for one year, which is impugned in this appeal. 1.1 The case of the prosecution is that on 20.9.2009, the appellants have formed unlawful assembly with common object and intention, entered the house of deceased Soniben and caused serious injuries on her chest with sharp edged weapons and committed her murder and also looted ornaments worth Rs. 85,558/-. The deceased has succumbed to the injuries, and therefore, the complaint was filed. 1.2 The appellants accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was hold against the present appellants. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 212/2009. 1.3 Thereafter, the Sessions Court framed the charge below Exh. 5 against the appellants for commission of the offence under section 302, 394, 449, 34 and 120(B) of IPC. The appellants -accused have pleaded not guilty and claimed to be tried. 1.4 To prove the case against the present appellants, the prosecution has examined the following witnesses: 1. PW-1 Naranbhai Jivabhai Ex. 11 2. PW-2 Bakulbhai Shivalalbhai Ex. 13 3. PW-3 Kaliben Chitharbhai Ex. 14 4. PW-4 Bharatbhai Ratilal Ex. 15 5. PW-5 Ajaybhai Ravjibhai Ex. 17 6. PW-6 Ashokbhai Narshibhai Parmar Ex. 18 7. PW-7 Amitbhai Ranabhai Khoda Ex. 23 8. PW-8 Arvindbhai Narshibhai Ex. 25 9. PW-9 Vijaybhai Mansukhlal Ex. 26 10. PW-10 Manishbhai Kishorbhai Ex. 27 11. PW-11 Ketanbhai Kishorbhai Ex. 28 12. PW-12 Madhuben w/o Pravinbhai Ex. 29 13. PW-13 Dr. Vijaybhai Shankarbhai Boricha Ex. 30 14. PW-14 Solanki Hathisinh Amarsing Ex. 34 15. PW-15 Dr. Jaswantbhai Amrutbhai Darji Ex. 39 16. PW-16 Nirmalsinh Vajubha Jadeja Ex. 45 1.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused. 1. 28 12. PW-12 Madhuben w/o Pravinbhai Ex. 29 13. PW-13 Dr. Vijaybhai Shankarbhai Boricha Ex. 30 14. PW-14 Solanki Hathisinh Amarsing Ex. 34 15. PW-15 Dr. Jaswantbhai Amrutbhai Darji Ex. 39 16. PW-16 Nirmalsinh Vajubha Jadeja Ex. 45 1.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused. 1. Inquest panchnama Ex. 12 2. Panchnama of scene of offence place Ex. 16 3. Arrest panchnama Ex. 19 4. Panchnama of blood sample of accused Ex. 20 5. Arrest panchnama Ex. 21 6. Panchnama of medical sample Ex. 22 7. Discovery panchnama Ex. 24 8. Medical papers Ex. 31 9. Police yadi Ex. 32 10. Copy of station diary Ex. 35, 36 11. Order under sec. 174 of CrPC Ex. 37 12. Yadi to register the complaint Ex. 38 13. PM Report Ex. 40 14. Yadi for PM Ex. 41 15. Certificate about medical sample Ex. 42 16. Opinion about medical certificate Ex. 43 17. Certificate of Cause of death Ex. 44 18. Complaint Ex. 46 19. Death form Ex. 47 20. Yadi for FSL & Dog squad Ex. 48 21. Local FSL report Ex. 49 22. Yadi for dog squad Ex. 50 23. Dog call form Ex. 51 24. Yadi for preparing map of scene of offence Ex. 52 25. Muddamal dispatch note Ex. 53 26. Receipt of FSL Ex. 54 27. FSL Report with forwarding letter Ex. 55 2. Thereafter, after examining the witnesses, further statement of the appellants-accused under sec. 313 of CrPC was recorded in which the appellants-accused have denied the case of the prosecution. 3. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide I impugned judgment and order dated 25.6.2010 held the present appellants- original accused no. 1 and 2 guilty of the charge levelled against them under sec. 302 read with sec. 34 of IPC and convicted and sentenced the appellants-accused, as stated above. 4. We have heard learned advocate Mr. S.B. Tolia with Mr. Parth S. Tolia learned advocate for appellant no. 1 and Mr. Mrudul Barot learned advocate for appellant no. 2 and Ms C.M. Shah learned APP for the respondent-State. 5. Mr. 302 read with sec. 34 of IPC and convicted and sentenced the appellants-accused, as stated above. 4. We have heard learned advocate Mr. S.B. Tolia with Mr. Parth S. Tolia learned advocate for appellant no. 1 and Mr. Mrudul Barot learned advocate for appellant no. 2 and Ms C.M. Shah learned APP for the respondent-State. 5. Mr. Tolia learned advocate appearing for the present appellants has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants be given the benefit of doubt and be acquitted. Mr. Tolia has taken us through the entire record. He has even read the cross-examination of the witnesses and even hostile witnesses and contended that this is a case of no evidence. It is further submitted by Mr. Tolia learned advocate for the appellants that in such a serious case only on circumstantial evidence, the learned trial Judge has convicted the accused even though nobody has last seen them together. It is further submitted that even before the trial Court, the muddamal was not produced, and in fact, he has relied on the decision of the Hon'ble Apex Court in the case of Varun Chaudhary vs. State of Rajasthan, reported in (2011) 12 SCC 545 . There is no eye witness. The circumstance go to show that the grand-sons who have been examined were seen together with the old lady. The Evidence Act, more particularly, Section 27, the panchnamas cannot be said to be such which proves the involvement of the accused, and therefore, the appeal deserves to be allowed and the accused may be acquitted. 6. On the other hand, Ms. CM Shah learned APP has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed. Learned APP has further contended that this is a case of brutal murder, and therefore, no leniency should be shown to the accused since the injuries are on the vital part of the body, hence, no interference is called for and the appeal deserves to be dismissed. She has taken serious pain to show that the inquest panchnama showed that it is not natural death. 7. The Apex Court has distinguished the term of common object and common intention. In the circumstances, common object does not require a prior concert or common meeting of mind. Section 34 will not have its place in the facts of the case. Section 34 of IPC reads as under: 34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 8. We are satisfied that there was neither common object nor common intention to commit the crime. This takes us to the issue regarding whether it was a murder perpetrated by the accused or whether they were the persons who had conspired to commit the offence under section 394 IPC. We are of the view that the view taken by the learned trial Judge cannot be sustained in light of the latest decision of the Apex Court in the case of Varun Chaudhary vs. State of Rajasthan, reported in (2011) 12 SCC 545 . Paras-19 to 29 of the said decision, reads as follows: (19) We have heard the learned counsel and have considered the submissions referred to hereinabove and relevant record. Upon going through the judgments relied upon by the counsel appearing for the appellants and looking to the evidence adduced before the trial court, we are in agreement with the submissions made by the learned counsel appearing for the appellants. (20) Home Guard, Pawan Kumar (PW-3), had seen three persons on a motor cycle. However, he stated that he could not identify the persons on the motor cycle. Similarly, police constable Pooran Singh (PW- 6) had stated that around 12 midnight on 22nd August, 2000, he had seen two persons going on motor cycle and one of them was the deceased. However, he stated that he could not identify the persons on the motor cycle. Similarly, police constable Pooran Singh (PW- 6) had stated that around 12 midnight on 22nd August, 2000, he had seen two persons going on motor cycle and one of them was the deceased. After sometime he had seen another motor cycle which was Suzuki, but he could not read complete number of the motor cycle, but he could read one of the digits, namely No. 9'. He whistled so as to stop the said motor cyclist but the motor cyclist did not stop. Thereafter, he had seen another motor cycle, being Hero Honda which had hit a dog near Santoshi Mata Temple. It is pertinent to note that the afore-stated two witnesses did not say that they had seen any of the accused. Possibly even they did not see faces of the three persons, who were on the motor cycle. Possibly, in these set of circumstances, having identification parade would be futile and, therefore, there was no test identification parade. Thus, nobody had seen any of the accused. (21) So far as identification of the motor cycle is concerned, PW-6 merely stated that he saw one digit of registration number of the motor cycle, which was 9'. In our opinion, on the basis of one digit of the registered number, it would be dangerous to believe that the motor cycle recovered, which also had digit 9' in its number, was used in the offence. In our opinion, on such a scanty evidence it cannot be said that the accused had been identified or the motor cycle which had been recovered was the one which was used by the accused at the time of the offence. (22) In our opinion, so called recovery of knife and blood stained clothes would not help the prosecution. Recovery of the motor cycle can not be said to be proved because Bhanwar Singh, PW-9 admitted the fact that he had signed the recovery panchnama in the police station whereas another witness, Madan Lal, P.W. 25 could not establish recovery of the knife as he was not present at the time and place from which the knife had been recovered. Moreover, the knife was never produced before the court and was never shown to the accused and, therefore, in our opinion, the said evidence could not have been relied upon by the courts below for passing the order of conviction. (23) It is pertinent to note that there is no evidence or even there is no reference to the fact that any one from Forensic Science Laboratory or from the police personnel had lifted marks of the motor cycle tyre from the place of the offence so that the same can be compared with the tyre marks of the motor cycle alleged to have been used in the offence. Unless tyre marks are lifted from the place of the offence and upon comparison with the tyre marks of the motor cycle recovered are found to be the same, it cannot be said that the motor cycle recovered was used in the offence. So as to establish the presence of the motor cycle at the place of the offence, the prosecution must show that the tyre marks which were found at the place of the offence were that of the motor cycle used by the accused. It is also pertinent to note that marks of the motor cycle tyre which were received by the FSL were not in a sealed condition. Aforestated facts clearly denote that the marks of the motor cycle tyre could not have been relied upon either by the Trial Court or by the High Court for establishing that the motor cycle having particular tyre marks was used in the alleged offence. (24 It is also pertinent to note that the prosecution could not establish the purpose for which the deceased was murdered by the accused. Of course, it is not necessary that in every case motive of the accused should be proved. However, in the instant case, where there is no eye witness or where there is no scientific evidence to connect the accused with the offence, in our opinion, the prosecution ought to have established that there was some motive behind commission of the offence of murder of the deceased. It was the case of the prosecution that the deceased, an Income Tax Officer had raided the premises belonging to some scrap dealers and, therefore, he had received some threats from such scrap dealers. It was the case of the prosecution that the deceased, an Income Tax Officer had raided the premises belonging to some scrap dealers and, therefore, he had received some threats from such scrap dealers. It is an admitted fact that the accused are not scrap dealers or there is nothing to show that the accused had been engaged by scrap dealers to commit the offence. Thus, there was no motive behind the commission of the offence so far as the accused are concerned. (25) It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to convict the accused. (26) In the case of G. Parashwanath vs. State of Karnataka, (2010)8 SCC 593 , para 24, it has been stated that - 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved... 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court. (27) In another case of C. Chenga Reddy v. State of A.P., reported in (1996) 10 SCC 193 , this Court has held that: 21. (27) In another case of C. Chenga Reddy v. State of A.P., reported in (1996) 10 SCC 193 , this Court has held that: 21. In a case based 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. (28) Due to the above stated facts, in our opinion, the conclusion reached by the courts below is not correct. On the basis of such scanty evidence, which is practically no evidence at all in the eyes of law, the courts below could not have passed the order of conviction. (29 For the reasons stated hereinabove, we are of the view that the orders convicting the accused-appellants in both the appeals are not justified and, therefore, the appeals are allowed. The impugned orders are quashed and set aside. The accused-appellants shall be released immediately, if not required in any other offence. 9. Learned advocate Mr. Tolia for the appellant-accused has relied on the decision of this Court in the case of Parsinghbhai Galiya Macher vs. State of Gujarat, reported in 2013(1) GLH 1 , wherein, this court has observed as under: We are not impressed by the submission of Mr. Raval, the learned Public Prosecutor that the witnesses have very clearly deposed that they had seen the accused on the date of the incident adding something in the Dal. In the first place, this story of the witnesses having witnessed the accused adding something in Dal is not palatable. First, the accused was not incharge of the kitchen on that day and he was not the cook. According to the PW-3, the Dal was cooked by him. Why should the host or his family members allow any other person, even if he may be a relative to add something in the food and more particularly without ascertaining or even having a look as to what was being added or mixed with the food. We are not at all convinced with this version of the prosecution. Why should the host or his family members allow any other person, even if he may be a relative to add something in the food and more particularly without ascertaining or even having a look as to what was being added or mixed with the food. We are not at all convinced with this version of the prosecution. Apart from the above, the PW-7, Ishwarbhai Machhar, one of the relatives of the host, has altogether a different version to narrate. The PW-7 had deposed that his uncle the PW-3 Dhirabhai Machhar and the accused both together had prepared Dal and Rice and thereafter the vessel containing Dal and Rice was brought in the house. In our opinion, the story of the prosecution that it was the accused who had mixed PHORATE with Dal and Rice on the date of social gathering at the house of PW-3 Dhirabhai is nothing but an after-thought. It is only after receipt of the report of the public analyst dated 16.11.2005 that all of a sudden everyone started pointing finger towards the accused. As observed above, there is no explanation at the end of any witnesses as to why they had not disclosed the fact of the accused mixing something in the name of the Masal when their statements were recorded by the police during the course of inquiry of the Accidental Death Case registered at the Police Station. The sum and substance of the above discussion is that the prosecution has not been able to connect the accused with the crime of murder of the deceased persons. 10. Mr. Tolia learned advocate for the appellant-accused has also relied on the decision of this Court in the case of Patel Manabhai Mavjibhai vs. state of Gujarat, reported in 2013(1) GLH 40 , wherein, this Court has observed as under: The prosecution has not been able to prove a single panchnama including the most important piece of evidence i.e. discovery panchnama of the weapon of the offence. Both the panch witnesses of the discovery panchnama failed to prove the contents of the panchnama and were declared hostile. The investigating officer also failed to prove the contents of the discovery panchnama. Both the panch witnesses of the discovery panchnama failed to prove the contents of the panchnama and were declared hostile. The investigating officer also failed to prove the contents of the discovery panchnama. -Held, on the facts of the case, at the best all that could be said is that the conduct of the accused was suspicious but suspicion, howsoever strong, cannot take place of legal proof - Further held, the note addressed by the Sarpanch of the village stating that there was some talk in the village that accused had committed the murder of his wife is also hearsay. Conviction, in the absence of evidence, set aside. 11. Therefore, just because the crime articles were recovered, it will not make it reliable as the role of the recovery witness is in question. The articles were never produced before the court and never shown to the witness also, and therefore, in this case also, the conviction will have to be reversed. On the basis of the scanty evidence which is practically no evidence at all in the eye of law and the learned trial Judge could not have passed the order of conviction on only basing his decision on the recovery of the articles. Therefore, the decision of the Apex Court in the case of Varun Chaudhary vs. State of Rajasthan, reported in (2011) 12 SCC 545 (supra) cited by learned advocate Mr. Tolia in support of his case, is fully applicable to the facts of this case. The prosecution has, therefore, miserably failed to prove its case beyond reasonable doubt. Even the evidence of PW-9, 10, 11, 13, 14, 15 do not inspire the chain of incidents which would ultimately culminated into the offence having been committed by the accused alone. Therefore, the appeal deserves to be allowed and the accused deserve to be acquitted of the charges levelled against them. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 25.6.2010 passed by the learned Addl. Sessions Judge, F.T.C. No. 2, Bhavnagar in Sessions Case No. 212/2009 is quashed and set aside. The appellants- ori. Accused are acquitted of all the charges levelled against them and they are directed to be set at liberty forthwith, if not required in any other case. R & P to be sent back to the trial Court, forthwith. Appeal allowed.