JUDGMENT : A.G. URAIZEE, J. 1. The appellants have challenged the judgment and order of conviction dated 28.01.2009 passed by the learned Additional Sessions Judge, Fast Track Court, Palanpur, Banaskantha in this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (“the Code” for short), whereby and where under they came to be convicted as under:- “Offence (1) U/s. 302 read with 34 of IPC (2) U/s. 394 read with 34 of IPC (3) U/s. 201 read with 34 of IPC Sentence (1) R.I. For life and fine of Rs.10,000/- each I.D. Imprisonment of 2 years. (2) R.I. For 7 years and fine of Rs.5,000/- each I.D. Imprisonment of 1 year. (3) R.I. For 3 years and fine of Rs.2,000/- each I.D. Imprisonment of 6 months. (Accused given benefit of set off all the sentences run concurrently)” 2. The prosecution case against the appellants as could be culled out from the impugned judgment and record is that the appellants with an intention to commit theft of ornaments took the deceased-Sairaben on 10.04.2006 at about 10.30 A.M. and commit loot of various ornaments worn by the deceased-Sairaben, and thereafter, committed a murder by strangulating. 3. A compliant in respect of the offence was lodged by Mehandi Husain (P.W.4) with Palanpur, Taluka Police Station, where it was registered vide C.R. No. I-75 of 2006. Pursuant to the complaint, investigation was taken up. Upon conclusion of investigation, prima facie evidence was found against the appellants, and thereafter, charge sheet was filed in the Court of learned Magistrate, who committed the case to the Sessions Court under Section 209 of the Code as the offence is exclusive triable by the Court of Sessions. Where it was registered as Sessions Case No.127 of 2006. 4. Charge-sheet while Exhibit-7 came to be framed against the appellants by Presiding Officer at the Fast Track Court, Palanpur on 03.11.2006. The appellants pleaded not guilty and claimed to be tried. 5. In order to bring home the charge-sheet against the appellants following witnesses were examined on behalf of the prosecution:- 1 Dr. Rekhaben P. Maheshwari Exh.14 2 Dr. Babulal K. Solanki Exh. The appellants pleaded not guilty and claimed to be tried. 5. In order to bring home the charge-sheet against the appellants following witnesses were examined on behalf of the prosecution:- 1 Dr. Rekhaben P. Maheshwari Exh.14 2 Dr. Babulal K. Solanki Exh. 21 3 Phirojbhai Mohamadkhan Nagori (Circle Inspector) Exh.31 4 Meh andihusen Wazirhusain Umatiya (witness) Exh.34 5 Ujmabtul Ahmedbhai Umatiya (witness) Exh.36 6 Bhikhabhai Joitabhai (witness) Exh.39 7 Parthibhai Bhavjibhai Chaudhary (witness) Exh.40 8 Abdul Malik Mohamadyakub Vora (witness) Exh.42 9 Sabanben Ismailbhai (witness) Exh.44 10 Mohamadsaeed Ismail (hostile witness) Exh.45 11 Popat Gevarchand Soni (witness) Exh.47 12 Mohamadbhai Noorbhai Mukhi (witness) Exh.50 13 Sani Jahera Akbarbhai (witness) Exh.52 14 Alihusain Rajmohamad (Panch hostile) Exh.57 15 Mehandihusain Jafarbhai Agahiya (Panch Hostile) Exh.60 16 Jesung Raja Thakor Exh.69 17 Husainali Hasanali Sunesara (Panch) Exh.71 18 Alibhai Hasanbhai Chaudhari (hostile witness) Exh.72 19 Bhudev Harischand Chauksi (Panch) Exh.74 20 Rameshkumar Babuji Thakore (hostile witness) Exh.76 21 Dhanesinh Ajitsinh Chauhan (PSI) Exh.78 6. The prosecution also relied upon the documentary evidence as follow:- 1 Yaadi – P.M. Exh.15 2 P.M. Note Exh.16 3 Cause of death Certificate Exh.17 4 Receipt of cloth of dead body Exh.18 5 Yaadi – whether rape was committed or not Exh.19 6 Yaadi – treatment of accused Exh.20 7 Yaadi – medical report of accused person Exh.22 8 Medical certificate of accused-Javed Exh.23 9 Medical certificate of accused-Ismailbhai Exh.24 10 Case papers of accused-Javed Exh.27 11 Case papers of accused-Ismailbhai Exh.28 12 Map of place of incident Exh.32 13 Advertisement of Mehandihusain Wazirbhai Exh.35 14 Advertisement of Parthibhai Bhavjibhai Exh.41 15 Form of Reliance of accused-Javed Exh.51 16 X-rox copy of number of STD-PCO Exh.53 17 Inquest Panchnama Exh.54 18 Panchnama of place of incident Exh.55 19 Panchnama of search of house of accused-Javed Exh.56 20 Panchnama of identification of dead body Exh.58 21 Panchnama of cloth of dead body Exh.59 22 Panchnama of used vehicle in crime Exh.63 23 Panchnama of Muddamal jeweler Exh.68 24 Panchnama of place where dead body found Exh.70 25 Panchnama of physical situation of accused Exh.73 26 Panchname of jwelers sold by the accused Exh.74 27 Complaint of complainant-Mehandihusain Exh.79 28 First Information Report Exh.80 29 Suchipatra Exh.81 30 Report of major crime Exh.82 31 Bill of gold from “Jyoti Jewelers” Exh.83 32 Suchipatra Exh.84 33 Report of performing P.M. Exh.85 34 After P.M. report yaadi Exh.86 35 Receipt of body Exh.87 36 Yaadi regarding panchnama of mamalatdar Exh.88 37 Map of place of crime Exh.89 38 Bill of Choksi Ragubir Ratilal Exh.90 39 Muddamal forwarding note of by FSL Exh.92 40 Muddamal receipt of acknowledge of muddamal to FSL Exh.93 7. We have heard Mr. Pravin Gondaliya, learned advocate for the appellants and Ms. Shruti Pathak, learned APP for the respondent-State. 8. Mr. Gondaliya, learned advocate for the appellants would submit that the prosecution case against the appellants is based on circumstantial evidence and the prosecution has failed to prove the chain of circumstances to establish the guilt beyond reasonable doubt. We have heard Mr. Pravin Gondaliya, learned advocate for the appellants and Ms. Shruti Pathak, learned APP for the respondent-State. 8. Mr. Gondaliya, learned advocate for the appellants would submit that the prosecution case against the appellants is based on circumstantial evidence and the prosecution has failed to prove the chain of circumstances to establish the guilt beyond reasonable doubt. He would submit that it is clearly revealed from the evidence of original informant Mehandihusain Vazirbhai (P.W.4) that after giving information to the Police about the missing of his brother's wife, he made inquires of his own from which he came to know that the deceased-Sairaben used to go to Rehan S.T.D. PCO frequently to make calls, and it was revealed that the deceased was making calls to a particular mobile number, which happens to be of the appellant No.1. It is his contention that the Investigating Officer has not made any efforts to collect the call details from the service provider to establish on record that in fact the deceased-Sairaben had made calls on the mobile number standing in the name of the appellant No.1, and therefore, an important link in the chain of the circumstances is not established by the prosecution. It is his further contention that extra judicial confession made before the doctor-Babubhai Ratilal Solanki (P.W.2) is not admissible and hit by Sections 25 and 26 of the evidence Act because when the appellants were sent for medical examination, they were on remand and brought before the doctor by the Police. It is his further submission that the prosecution has not proved the motive. Deceased- Sairaben went missing on 10.04.2006, and missing information was given next date i.e. on 11.04.2006, wherein, there was no mention of the ornaments worn by the deceased-Sairaben. He would submit that the statement of Ozma Ahmed Batul (P.W.5) daughter of the deceased-Sairaben was recorded immediately, thereafter, it did not contain mention of any ornaments. P.W. 5 for the first time stated above the ornaments which were wear on the person of the deceased in her 3rd statement before the Police. He, therefore, submits that the story of deceased wear ornaments which were taken away by the appellants is inserted later on to collect motive behind commission of the offence. 9. P.W. 5 for the first time stated above the ornaments which were wear on the person of the deceased in her 3rd statement before the Police. He, therefore, submits that the story of deceased wear ornaments which were taken away by the appellants is inserted later on to collect motive behind commission of the offence. 9. It is his further submission that the identification of the looted ornaments by P.W.5 is also doubtful and cannot be believed because it is clear from the evidence on record that when the ornaments were shown to P.W.5, they were in sealed plastic box and the ornaments were not taken out from the box for identification by P.W.5. He would also further submit that the prosecution has failed to establish chain of looted ornaments. It is his submission that Shabana (P.W.9) and Popat G. Soni (P.W.11) have categorically stated in there evidence before the Court that the police had come to these witness along with the appellants, and therefore, no test identification was held before the Executive Magistrate, and therefore, it is highly improbable that these two witnesses would have identified the accused after one year of the incident. He, therefore, submits that the prosecution has failed to establish the complete chain of circumstances which would lead to the only hypothesis of the guilt of the appellants. He, therefore, urges that the appeal may be allowed and the conviction may be set aside. In support of his submission, he has relied upon a decision of Supreme Court in the case of Dandu Jagaraju v. State of Andhra Pradesh reported in (2011) 14 SCC 674 and State of Rajasthan v. Chhote Lal and others, reported in (2011) 14 SCC 303 . 10. Per contra, Ms. Shruti Pathak, learned APP has supported the impugned judgment and order of conviction. She has empathetically submits that the prosecution has successfully established the chain of circumstances leading to the hypothesis of the guilt in any shred of doubt. She would submit that the deceased had made phone calls on mobile number of the appellant No.1 on previous day before going missing on 10.04.2006 which is fully corroborated by the evidence of P.W.4, P.W.12- owner of the distributing agency and P.W.13- daughter of PCO owner. She would submit that the deceased had made phone calls on mobile number of the appellant No.1 on previous day before going missing on 10.04.2006 which is fully corroborated by the evidence of P.W.4, P.W.12- owner of the distributing agency and P.W.13- daughter of PCO owner. It is the fact that the deceased was making calls on mobile phone number belonging to the appellant No.1 is further reinforced by the abstract of registered STD PCO Exhibit-53. She further submits that P.W.2-Dr. Solanki before whom appellant No.1 was produced by medical examination also reveals that appellant No.1 had stated in the history that the deceased had call him on 09.04.2006. Accordingly, she submits that the prosecution has successfully established the link that on 09.04.2006 the deceased had called appellant No.1 on his mobile phone. She further submits that appellant No.2 had borrowed auto-rickshaw from P.W.8-Abdul Malik Vora and auto-rickshaw was return to him by both the appellants. She, therefore, submits that the prosecution has successfully established on record that the appellants had used auto rickshaw belonging to P.W.8 to abduct the deceased. It is her further submission that the appellants had sold ear ring which they have looted from the body of the deceased P.W.13 through P.W.12. She, therefore, submits that the prosecution has successfully established each link connecting to the appellants in commission of death and loot of ornaments of deceased-Siaraben. She, therefore, urges that the appeal is devoid of merits and deserves to be dismissed. In support of her submission she has relied upon a decision of Kerala High Court in the case of State of Kerala v. Ammini and others, reported in AIR 1988 Kerala 1. 11. There is no cavil that the prosecution has against the appellants solely based on circumstantial evidence. It is well settled principle that for passing conviction on the basis of circumstantial evidence is that each and every incriminating circumstances must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. 12. 12. A clean question which arises for our consideration in this appeal, therefore, is that whether various circumstances tried to be projected by the prosecution and accepted by the learned trial Judge for convicting the appellants are proved by reliable and clinching evidence and such circumstances form a complete chain pointing only to the guilt of the appellants? 13. The learned trial Judge has recorded conviction against the appellants on being satisfied that the following chain of circumstances is clearly establish by the prosecution which leads to the only hypothesis of the guilt and rules out any other hypothesis. The circumstances are as follows :- (a) The deceased had make a phone call on mobile number 9374461144 belonging to the appellant No.1 from Rehan STD PCO in the evening on 09.04.2006 before going missing on 10.04.2006. Exhibit-53 abstract of registered STD PCO reveals that the deceased used to make phone call on the aforesaid phone number frequently. (b) The appellant No.2 had borrowed auto-rickshaw from P.W.8-Abdul Malik Vora which was return by both the appellants. (c) The appellants had sold ear rings looted from the body of the deceased to P.W.13-Popat Soni through P.W.9- Sabana. Both these witnesses had identified the appellants in the Court. (d) The rest of the jewelery i.e. four Bengal and chain and rings were recovered from the pocket of appellant No.1 which is proved through P.W.15 witness of Exhibit-73 Panchnama. 14. The moot question which falls for our consideration is whether the prosecution has successfully established and proved each of the aforesaid circumstances beyond reasonable doubt which would lead to only conclusion that it was the appellants alone and none other who had committed the murder of deceased-Sairaben and looted ornaments from her body. Upon careful consideration and re-appreciation of the evidence obtainable on record, we are of the view that it cannot be safely said that the prosecution has successfully proved the aforesaid circumstances to base the conviction of the appellants. 15. It emerges from the evidence of P.W.4-Mehandi Husain who happens to be the brother in law of the deceased that missing complaint in respect of the deceased was lodged with the Police on 11.04.2006. Thereafter, upon making inquiries of his own, P.W.4 came to know that the deceased used to make phone calls from Rehan STD PCO and it was reveal that she used to call on mobile number as aforesaid. Thereafter, upon making inquiries of his own, P.W.4 came to know that the deceased used to make phone calls from Rehan STD PCO and it was reveal that she used to call on mobile number as aforesaid. On further inquiries it emerged that the said mobile number is touring the name of the appellant No.1. It is further reveal from the evidence of P.W.4 that the deceased had made a phone call on aforesaid number on 09.04.2006, and thereafter, on 10.04.2006, she left her house after informing P.W.5 – daughter of the deceased namely, Usma that she was going to dargaah at husain tekri and never returned home. P.W.12 – distributor of reliance that the said mobile number standing in the name of appellant No.1 and from the evidence of P.W.13- daughter of PCO owner that the deceased had made phone calls on the aforesaid phone number as is evidenced from the Exhibit-53 abstract of registration of STD PCO. In our considered view that the fact of deceased having made phone call on aforesaid phone number belonging to appellant No.1 cannot be said to have been clearly proved and established. The prosecution has not made any attempt to collect mobile call data from the concerned mobile phone operator to prove and establish on record that in fact the deceased had made phone call on the aforesaid number belonging to appellant No.1 on 09.04.2006 before going missing on 10.04.2006. 16. The other circumstances on which heavy reliance is to be placed by the prosecution is that on borrowing auto rickshaw belonging to P.W.8, it is true that it emerges from the evidence of P.W.8 that appellant No.2 had borrowed his auto rickshaw on the pretest and taking his family for and outing, and thereafter, both the appellants had come together to return the rickshaw only because the appellant No.2 had borrowed the rickshaw and both the appellants having come together and return the same cannot be a circumstances by itself to record conclusion that the said rickshaw was used by the appellants for committing abduction and murder of the deceased without there being other corroborating evidence. It is worthwhile to note at this juncture that P.W.10 who had said to have been seen the appellants in company of the burkha clad woman on 10.04.2006 at about 9.15 a.m. has not supported the prosecution case. 17. It is worthwhile to note at this juncture that P.W.10 who had said to have been seen the appellants in company of the burkha clad woman on 10.04.2006 at about 9.15 a.m. has not supported the prosecution case. 17. The evidence of P.W.9-Sabanaben and P.W.11 – Popat Soni had not inspired the confidence of this Court. It is the prosecution case that the appellants had gone to Himmatnagar after committing the crime. They went to the house of P.W.9 who was perfect stranger to bring water and share of help in selling the ear rings as they were in need of money. P.W.9 took them to P.W.11 who agreed to purchased the ear rings. Both these witnesses had know previous acquaintance with the appellants and though both these witnesses identified the appellants in Court after about one year, it emerges from their evidence that the Police had come along with the appellants their respective places at Himmatnagar to record their statements. It is very difficult to believe that both these witnesses who had not previous acquaintance or an opportunity to meet them where able to identify by them in the Court after one year. The prosecution did not take any steps to conduct test identification parade of the appellants by these two witnesses and therefore, these two witnesses were not knowing the appellants. There evidence on having identified the appellants in the Court room while giving evidence cannot be believed. 18. It is the case of the prosecution against the present appellants that the appellant No.1 had produced jewelery i.e. four Bengals, neck-less with pendal and two ring which were seized under panchnama Exh.73. The contention of learned APP that though panches of Exh.73 panchnama have not supported the prosecution case, through the evidence of P.W.21-Investigating Officer, Exh.73- Panchnama is proved cannot be countenanced. Since the panches Exh.73 Panchnama did not support the prosecution case, merely on the basis of P.W.21- Investigating Officer. It cannot be said that the prosecution has proved the recovery of the ornaments. The pocket of appellant No.1 and thereby the prosecution has successfully proved beyond reasonable doubt that it was the appellants who had looted the ornaments from the body of the deceased after committing her murder. 19. It cannot be said that the prosecution has proved the recovery of the ornaments. The pocket of appellant No.1 and thereby the prosecution has successfully proved beyond reasonable doubt that it was the appellants who had looted the ornaments from the body of the deceased after committing her murder. 19. A close survey of the decisions of the apex Court show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:- (a) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (b) 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. (c) The circumstances should be of a conclusive nature and tendency. (d) They should exclude every possible hypothesis except the one to be proved, and (e) 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. 20. In our considered opinion in the case on hand, the prosecution has miserably failed to prove the chain of circumstances beyond any doubt, and therefore, the order of conviction recorded by the learned trial Judge cannot be sustained and deserves interference in this appeal. The conviction of the appellants for the murder of deceased- Sairaben needs to be quashed and set aside. 21. For the foregoing reasons, the appeal succeeds and is hereby allowed. The judgment and order of conviction dated 28.01.2009 passed by the learned Additional Sessions Judge, Fast Track Court, Palanpur, Banaskantha in Sessions Case No.127 of 2006 convicting the appellants for the offence punishable under Sections 302, 394 and 201 read with Section 34 of IPC is hereby quashed and set aside. 22. Bail bond are hereby discharged. 23. Fine, if paid, is ordered to be refunded to the appellants. 24. R&P, if summoned, be remitted to the trial Court forthwith.