JUDGMENT : B.R. Gavai, J. 1. Being aggrieved by the Judgment and Order passed by the learned Sessions Judge, Bhandara in Sessions Trial No. 40 of 2014, dated 4.9.2015 thereby convicting each of the appellants for the offence punishable under Section 302 r/w. 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- and in default to suffer rigorous imprisonment for six months, the appellants have approached this Court. 2. Each of the appellants have also been convicted for the offence punishable under Section 449 r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for three months. Each of them have also been convicted for the offence punishable under Section 392/397 r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 3,000/- in default to suffer further rigorous imprisonment for five months. Each of them have also been convicted for the offence punishable under Section 307 r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 3,000/- in default to suffer further rigorous imprisonment for five months. Each of them were further convicted for the offence punishable under Section 201 r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for two months. 3. The prosecution case, as could be gathered from the material placed on record, is thus : That Subhash Manikrao Mankar (PW-1) - the first informant, was residing in Village Andhalgaon along with his wife namely Vaishali, son namely Khush and deceased Leelabai. It is the prosecution case that, on 2.4.2014, at around 11.00 a.m. the first informant had gone to Butibori at the house of his brother. On 2.4.2014, he stayed at Butibori and came to Nagpur at around 7.00 a.m. on 3.4.2014. He received a telephonic call from Diwakar Mohapat Patil (PW-2) at around 9.00 to 9.30 a.m. and told him that his mother had died due to heart attack and that there was bleeding through her mouth. On 2.4.2014, he stayed at Butibori and came to Nagpur at around 7.00 a.m. on 3.4.2014. He received a telephonic call from Diwakar Mohapat Patil (PW-2) at around 9.00 to 9.30 a.m. and told him that his mother had died due to heart attack and that there was bleeding through her mouth. He reached Andhalgaon at around 2.00 p.m. Dead body of his mother was kept in the first room. There were injuries on her face and nail marks on her neck. Her tongue was pressed beneath her teeth. Original accused no. 2 Vinod S/o Vithal Navkhare took him inside the room and asked him to see whether any ornament is stolen. On search, he found that the ornaments worth Rs. 1,43,150/- were missing from the almirah. His son Khush was weeping. He went near him. There were nail marks on the neck of his son Khush. His son Khush told him that his maternal uncle Vinod pressed his neck and the neck of his mother and killed her. The grazer and the brother of Tiwya were with Vinod. Hence, on the basis of these allegations, Subhash (PW-1) lodged oral report, on the basis of which, the First Information Report bearing No. 21 of 2014 for the offences punishable under Sections 302, 397, 449, 307 r/w. 34 of the Indian Penal Code came to be registered. The accused were arrested. On the basis of oral report, investigation was set into motion. At the conclusion of the investigation, the charge sheet came to be filed in the Court of learned Judicial Magistrate, First Class. Since the case was exclusively triable by the Court of Session, the same came to be committed to the Court of Sessions Judge. The charges were framed against the accused. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence, as aforesaid. Being aggrieved thereby, the present appeal. 4. We have heard Mr. A.R. Kaplay, learned Counsel for the appellant in Criminal Appeal No. 356 of 2015 and Mr. S.A. Chaudhari, learned Counsel for the appellant in Criminal Appeal No. 379 of 2015. Mr. Kaplay, learned Counsel submits that, insofar as involvement of Original accused no. 1 Ajay in the crime is concerned, he is not even named by Subhash Mankar (PW-1) or Khush S/o Subhash Mankar (PW-5). S.A. Chaudhari, learned Counsel for the appellant in Criminal Appeal No. 379 of 2015. Mr. Kaplay, learned Counsel submits that, insofar as involvement of Original accused no. 1 Ajay in the crime is concerned, he is not even named by Subhash Mankar (PW-1) or Khush S/o Subhash Mankar (PW-5). He submits that reference to the co-accused is with regard to a person who owns cattle. He submits that the prosecution has not lead any evidence to show that Original accused no. 1 Ajay is possessing any cattle. The learned Counsel further submits that insofar as recovery of the stolen ornaments is concerned, various witnesses have given conflicting versions. It is, therefore, submitted that, on the basis of such evidence, conviction of the appellants would not be sustainable in law. 5. Mr. S.A. Chaudhari, learned Counsel for Original accused no. 2 Vinod submits that if the evidence of Khush (PW-5) is discarded, there is no material as against said accused Vinod. He submits that the evidence of prosecution witnesses is full of omissions, contradictions and improvements and as such, the order of conviction would not be sustainable. 6. Mr. M.J. Khan, learned A.P.P. for the respondent/State, on the contrary, submits that Khush (PW-5) is an eye witness. His testimony is corroborated by Subhash (PW-1) and Diwakar (PW-2), He further submits that the stolen articles are recovered at the instance of Original accused no. 1 Ajay. He further submits that the Chemical Analyser has found the blood of the blood group of the deceased on the clothes seized from accused no. 1. He further submits that there are multiple injuries on the person of accused no. 1 which are not at all explained by him. It is, therefore, submitted that no interference is warranted in the finding of conviction recorded by the learned trial Judge. 7. With the assistance of the learned Counsel for the appellants and the learned A.P.P., we have scrutinized the entire evidence on record. The prosecution case mainly rests on the evidence of Khush (PW-5) and the identification parade conducted by Ramesh Tikaram Lanjewar (PW-4). Khush Mankar (PW-5) was aged about 3 years at the time of incident and 4-3/4 years at the time of recording of his evidence. The prosecution case mainly rests on the evidence of Khush (PW-5) and the identification parade conducted by Ramesh Tikaram Lanjewar (PW-4). Khush Mankar (PW-5) was aged about 3 years at the time of incident and 4-3/4 years at the time of recording of his evidence. Perusal of testimony of Khush (PW-5) would reveal that, looking to his tender age, some questions were asked by the learned trial Judge to ascertain as to whether he can give rational answers to the questions. After putting preliminary questions, the learned trial Judge had found that the witness was not able to understand the questions and answer them properly. The learned trial Judge, however, further observed that, on account of insistence of the learned A.P.P. the evidence of said witness was recorded. The said child witness has stated in his evidence that Original accused no. 2 Vinod and one Hambawala had killed his grandmother. He has stated that both of them were sitting in the Court and that they reside by the side of the road. He further states that Vinod and Hambawala pressed his neck. He states that he was taken to the jail for identification and he had identified both the accused in the jail. However, he has candidly stated thus in his cross-examination : "It is true that I was sleeping on the date of the incident. It is true that Leela Aai did not wake up in the morning hence, I started weeping. It is true that I do not know why Leela Aai did not wake up. It is true that Hambawala cannot walk properly. It is true that I went to the jail with my father. It is true that I did not identify any person in the jail. It is true that I am deposing the name of Vinod and Hambawala on the say of my father." 8. We find that the learned trial Judge firstly ought not to have recorded the evidence of said witness since the learned trial Judge himself, upon putting preliminary questions to him, had come to the conclusion that the witness was not able to understand the questions and answer them properly. We find that the learned trial Judge firstly ought not to have recorded the evidence of said witness since the learned trial Judge himself, upon putting preliminary questions to him, had come to the conclusion that the witness was not able to understand the questions and answer them properly. In any case, the learned trial Judge could not have relied upon the evidence of said witness inasmuch as, in his cross-examination, he has categorically admitted that he did not identify any person in the jail and that he was deposing the names of Vinod and Hambawala on the say of his father. 9. We find that even the identification parade which is conducted by Ramesh (PW-4) also cannot be said to be free from doubt. Ramesh (PW-4) has categorically admitted in his cross-examination that there was only one door for entering into the Jail Court. He admitted that the suspected accused and the accused were brought from the same door. He further admitted that even Khush was brought from the same door. He has further admitted that he did not inquire anything from Khush before conducting the identification parade. He has further admitted that it was not mentioned in the identification parade documents that he asked Khush to identify the person who pressed the neck of his grandmother. 10. Sunil Tukaramji Shende (PW-6) is a witness on identification parade. He has admitted in his evidence that he knew Dilip, brother of first informant Subhash. It can thus be seen that it cannot be said that the identification parade is free from doubt. In any case, Khush (PW-5) has himself admitted in his evidence that he identified the accused persons in the prison. 11. If the testimony of Khush (PW-5) and identification parade goes, the case in hand would become a case based upon the circumstantial evidence. The principles on which the conviction can be based are very well crystalised by the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 . It will be appropriate to refer to the following observation of Their Lordships of the Apex Court : "153. 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 will be appropriate to refer to the following observation of Their Lordships of the Apex Court : "153. 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 and Another vs. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved. (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. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 12. It can thus be seen that, before resting the order of conviction in a case based on circumstantial evidence, it is necessary for the prosecution to establish each and every incriminating circumstance beyond reasonable doubt. Not only this, but the prosecution is also required to establish a chain of events, which is so interwoven to each other that it leads to no other conclusion than the guilt of the accused. In the light of this guiding principle, we will have to examine the present case. 13. The first circumstance on which the prosecution relies is the evidence of Subhash (PW-1) - the first informant. In the light of this guiding principle, we will have to examine the present case. 13. The first circumstance on which the prosecution relies is the evidence of Subhash (PW-1) - the first informant. He has stated in his evidence that he came to know about the incident after his arrival in the village. It is Original accused no. 2 Vinod who took him inside the room and told him to see whether any ornament is stolen. He has further deposed in his cross-examination that accused Vinod told him not to file complaint in the Police Station. However, same is the omission which is duly proved in the examination of the Investigating Officer. Apart from that, there are various other contradictions and omissions in his evidence. In any case, his evidence would be of a hearsay nature. 14. Another witness on this point is Diwakar Patil (PW-2) who states in his evidence that Subhash (PW-1) had asked Khush as to how he had sustained injury on his neck. Khush told his father that Vinod Mama pressed his neck and grazer pressed the neck of mother. He further states in his evidence that when Subhash told that he would file complaint, Vinod told him not to file complaint in the Police Station otherwise he would be implicated. However, in his cross-examination, he has admitted that Khush resided for sometime in his house and sometime in the house of Vinod before arrival of Subhash. He further admitted that Khush did not inform him about about the incident. He has further admitted that police had detained 34 other persons including him in the Police Station. 15. Rashmi Diwakar Patil (PW-3) is daughter of Diwakar Patil (PW-2), who had informed him about death of deceased Leelabai. However, her evidence is of no use to the prosecution case. 16. Yogita @ Vaishali Subhash Mankar (PW-12) has stated in her evidence that Original accused no. 2 Vinod had made all the preparation of funeral before their arrival and arrival of her brother-in-laws. She further stated in her evidence that Original accused no. 2 told them not to file complaint and to perform the funeral at the earliest. She has further admitted that Diwakar Patil was detained in the Police Station. 2 Vinod had made all the preparation of funeral before their arrival and arrival of her brother-in-laws. She further stated in her evidence that Original accused no. 2 told them not to file complaint and to perform the funeral at the earliest. She has further admitted that Diwakar Patil was detained in the Police Station. It could thus be seen from the evidence of these witnesses that, at the most, what could be held to be established is that, Khush informed them that accused Vinod and one other person had committed the crime. However, in view of the specific testimony of Khush, we find that only on these circumstances conviction would not be tenable. We will have to, therefore, scrutinize the material with regard to other circumstances. 17. The other circumstances on which the prosecution relies is recovery of the ornaments at the instance of the accused. However, even insofar as this circumstance is concerned, the evidence of prosecution is totally conflicting. 18. Kiran Haribhau Satpute (PW-14) in his evidence states that the ornaments were recovered at the instance of accused no. 2 Vinod from the almirah of his house. He further states that the accused produced ornaments from the almirah and the police seized the same. Mukesh Krantikumar Mishra (PW-8), who is a panch witness, states in his evidence that accused Vinod produced the ornaments from the heap of hay. Accused Ajay was also present at that time. Police seized it and prepared Seizure Panchanama. As against this, memorandum under section 27 of the Indian Evidence Act below Exh.110 and subsequent recovery under Seizure Panchanama below Exh.56 would show that the ornaments are recovered at the instance of accused no. 1 Ajay from the place in the field of accused no. 2, which were concealed below the heap of hay. It could thus be seen that the prosecution itself has placed on record the conflicting evidence with regard to recovery of articles. Some of the witnesses attribute recovery to Original accused no. 1 Ajay and some to Original accused no. 2 Vinod. Apart from that, it is to be noted that the said ornaments are not identified by any of the witnesses to be the ornaments owned by the deceased. In that view of the matter, we find that the prosecution has failed to establish that this circumstances unclinchingly connect the present appellants with the crime in question. 19. 2 Vinod. Apart from that, it is to be noted that the said ornaments are not identified by any of the witnesses to be the ornaments owned by the deceased. In that view of the matter, we find that the prosecution has failed to establish that this circumstances unclinchingly connect the present appellants with the crime in question. 19. The next circumstance is with regard to the finding of blood of blood group of deceased on the clothes seized from appellant no. 1 Ajay. It is to be noted that accused no. l was arrested on 4th of April, 2014. However, seizure of his clothes is on 6th April, 2014 at 18.00 hours. Seizure of the clothes includes one white coloured sando baniyan having blood stains. We fail to understand as to why when accused no. 1 was already in the custody of police on 4th April itself, the clothes which were on his person are not seized for a period of more than 48 hours. The delay of 48 hours in seizing the clothes of the accused is not at all explained by the prosecution. 20. The next circumstance is with regard to finding of finger prints on the box of ornaments of accused Ajay. However, Rajesh Pandhari Sonkusare (PW-11), the panch witness has denied that finger prints were collected by Mr. S.S. Haldar from the spot of incident. We find that, only on the basis of this circumstances, it will not be safe to convict Original accused no. 2 Vinod. 21. The next circumstance is regarding finding in respect of injuries sustained by accused no. 1. Dr. Sandeep Dhanraj Ghodeswar (PW-13), who had examined accused no. 1 has admitted that the injuries sustained by accused no. 1 could be self-inflicted due to etchings. 22. Upon perusal of the entire evidence led by the prosecution, we find that it cannot be said that the prosecution has proved the case beyond reasonable doubt. As has been held by the Apex Court in the case of Sharad Birdhichand Sarda (supra), there is not only a grammatical but a legal distinction between may be proved and must be or should be proved there is a legal distinction that the accused may have committed the crime and it is the accused alone who must have committed the crime. In that view of the matter, we find that the Criminal Appeals deserve to be allowed. Hence, the following order. ORDER (i) The Criminal Appeals are allowed. (ii) The appellants/accused are acquitted of the offences charged with. (iii) They be set at liberty forthwith, if not required in any other case. (iv) The amount of fine, if any, paid by the appellants be refunded to them.