JUDGMENT B.R.Gavai, J. - The appellant has approached this Court being aggrieved by the Judgment and Order passed by the learned Sessions Judge, Chandrapur in Sessions Case No.77 of 2016 thereby convicting the appellant for the offence punishable under Section 457 r/w. 34 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- and in default to suffer simple imprisonment for five days. The appellant is also convicted for the offence punishable under Section 380 r/w. 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-; in default to suffer rigorous imprisonment for five days. He is also convicted for the offence punishable under Section 460 r/w.34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-; in default to suffer simple imprisonment for ten days. The appellant is further convicted for the offence punishable under Section 394 r/w. 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/-; in default to suffer simple imprisonment for ten days. 2. The prosecution story, as could be gathered from the material placed on record, is thus : The first informant Geeta Banduji Aatmande is resident of Sulezari Railway Colony, Nagbhid. Her maternal house is at Navegaon Pandav. It is around 5 kms. away from the place of her residence. The first informant has one elder brother namely Damodharn Asaram Pandav and one younger sister. Father of first informant namely Asaram Pandav died in her childhood and her mother namely Chandrabhagabai was residing alone in the house at village Navegaon Pandav. On 9.4.2016, at about 8.30 a.m., the first informant received a telephonic information from the neighbour that her mother had died. When the first informant went to her maternal house at Navegaon Pandav along with her younger son, she found that the household articles in the house were in scattered condition. She had a suspicion that there might have been theft in the house. The first informant and Others found that the golden mangalsutra and the ear rings were missing from the person of deceased Chandrabhagabai. The last rites of deceased were performed on 9.4.2014 and asthi immersion was performed on 10.4.2016. 3. She had a suspicion that there might have been theft in the house. The first informant and Others found that the golden mangalsutra and the ear rings were missing from the person of deceased Chandrabhagabai. The last rites of deceased were performed on 9.4.2014 and asthi immersion was performed on 10.4.2016. 3. It is the prosecution case that the first informant heard noise of quarrel amongst accused Praful Pandav and juvenile accused Nikhil and Aniket regarding share in the stolen property. It is the prosecution case that the present accused had beaten the juvenile accused Nikhil. He, therefore, went to the shop of one Pandit Ganjpure and gave extrajudicial confession that he and other juvenile accused Aniket had entered the house of deceased Chandrabhabai through window and committed her murder by strangulation and committed theft of golden mangalsutra and ear rings. Accordingly, the First Information Report came to be registered. At the conclusion of investigation, charge sheet came to be filed for the offences punishable under Sections 457, 380, 460, 394 r/w. 34 of the Indian Penal Code. Since the case was exclusively triable by the Court of Sessions, it came to be committed to the Court of Sessions. Charges came to be framed below Exh.5. 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. Heard Mr.R.K.Tiwari, learned Counsel for the appellant and Mr.N.R.Patil, learned A.P.P. for the State. 5. Admittedly, in the present case, there are no eye witnesses. As such, the case would be one which is based on circumstantial evidence. The law with regard to recording of conviction on the basis of circumstantial evidence has been succinctly explained by Their Lordships of the Apex Court in the case reported in Sharad Birdichand Sarda vs. State of Maharashtra , (1984) 4 SCC 116 : ( AIR 1984 SC 1622 ), wherein it is observed as under ; 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. 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 & Another. v. 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, 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. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 6. It could thus be clearly seen that Their Lordships have held that there is not only grammatical distinction between "may" and "must", but also a legal distinction. It has been held that unless prosecution proves that it is the accused and the accused alone who has committed the crime, conviction under Section 302 of the Indian Penal Code would not be tenable. It has been held that all the probabilities except the one which is consistent with the guilt of the accused have to be ruled out. In the light of the guidelines laid down by the Hon''ble Apex Court, we will have to examine the present case. 7. It has been held that all the probabilities except the one which is consistent with the guilt of the accused have to be ruled out. In the light of the guidelines laid down by the Hon''ble Apex Court, we will have to examine the present case. 7. Learned trial Judge has relied on the following three circumstances : a) extrajudicial confession given by co-accused Nikhil, Pandit (PW6), Arun (PW7) and Dilip Khokale (PW8). b) seizure of stolen property. c) buttons found on the spot matching the shirt of accused. 8. Insofar as the first circumstance is concerned, Pandit (PW6) states in his evidence that, on 10.4.2016, at around 10.00 p.m., accused Nikhil told him that he is going to tell one fact to him. Accused Nikhil told him that he himself, accused Aniket and accused Praful committed murder of said Chandrabhagabai by committing theft of golden ornaments from her person and they sold the said ornaments at Bramhapuri. He states that he had called the relatives of deceased namely Arun . Accused Nikhil told the same story. Perusal of cross-examination of Pandir (PW6) would reveal that, insofar as that part of his evidence where he states that Nikhil told him that they sold the said ornaments at Brahmapuri is concerned, the same is an omission in his statement under Section 164 of the Code of Criminal Procedure and he has stated the same for the first time before the Court. Evidence of Arun (PW7) is also to the similar effect. He states that Pandit (PW6) made a phone call to him on 10.4.2016 between 9.00 to 10.00 p.m. and told that he had found the killer of his brother''s mother-in-law. He states that when he went to the pan shop of said Pandit, accused Nikhil was present. He further states that accused Nikhil told that he himself (accused Nikhil), accused Aniket and accused Praful committed murder of said Chandrabhagabai while committing theft of her golden ornaments from her person. Insofar as evidence of Dilip (PW8) is concerned, in his evidence he refers to the extrajudicial confession of accused Nikhil only with regard to taking ornaments from the person of deceased and selling the same. 9. It will be relevant to refer to Section 30 of the Indian Evidence Act and illustration (b) thereof. Insofar as evidence of Dilip (PW8) is concerned, in his evidence he refers to the extrajudicial confession of accused Nikhil only with regard to taking ornaments from the person of deceased and selling the same. 9. It will be relevant to refer to Section 30 of the Indian Evidence Act and illustration (b) thereof. "30.Consideration of proved confession affecting person making it and Others jointly under trial for same offence - When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. [Explanation - "Offence" as used in this section, includes the abetment of, or attempt to commit, the offence.] Illustrations : (a) ..... (b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said "A and I murdered C". 10. It could thus be seen that the confession made by the co-accused could be used against the other co-accused only if both of them are tried together. It will also be relevant to refer to the following observations of Their Lordships of the Apex Court in the case reported in Hardeep Singh Sohal, etc. vs. State of Punjab through CBI , (2004) AllMR(Cri) 3428 (S.C.) : ( AIR 2004 SC 4783 ) "Unfortunately, Balwinder Singh alias Fauji is alleged to have escaped from custody by 4th or 5th of May, 1993 and the charge itself was framed by the court later and Balwinder Singh was treated as a proclaimed offender by the Special Judge. The Special Judge relied on the decision reported in Esher Singh vs. State of Andhra Pradesh , (2004) AIRSCW 1665 : [2004 ALL MR (Cri) 2824 (S.C.)]: ( AIR 2004 SC 3030 ) and held that merely because one accused died before charges were framed, that does not affect the confessional statement. The learned judge was also of the view that by operation of Section 30 of the Indian Evidence Act, the confession of the co-accused could be made use of. The stand taken by the Special Judge is incorrect. The learned judge was also of the view that by operation of Section 30 of the Indian Evidence Act, the confession of the co-accused could be made use of. The stand taken by the Special Judge is incorrect. We do not think that Esher Singh''s case lays down the law that a confession recorded under Section 15 could be made use of as admissible evidence even if the co-accused, who made the confession was not charged or tried along with other accused. On the other hand, the decision clearly states after the amendment, the designated Court could use the confession of one accused against another accused only if the following two conditions are fulfilled : (1) The co-accused should have been charged in the same case along with the confessor. (2) He should have been tried together with the confessor in the same case." 11. Perusal of the aforesaid observations of the Apex Court would clearly reveal that the extrajudicial confession of co-accused can be used against the other accused only when the co-accused has been charged in the same case along with the confessor and he should have been tried together with the confessor in the said case. Admittedly, in the case at hand, accused Nikhil, who is said to have made extrajudicial confession, is not tried together with the present appellant. As such, the same could not have been used against the present appellant. 12. Apart from that, it is to be noted that the incident has taken place on 9.4.2016. The extrajudicial confession is alleged to have been given on 10.4.2016.. However, the F.I.R. is lodged on 18.4.2016. We are, therefore, of the considered view that the learned trial Judge has erred in relying on the said circumstance. 13. Insofar as the circumstance with regard to sale of stolen property is concerned, prosecution relies on the evidence of Aniket Bangare (PW3). In examination-in-chief, he states that the accused and one other boy had been to his shop for selling gold in the month of April, 2016. He has further stated in his examination-in-chief that he has purchased the same from the accused for Rs. 12,310/-. However, his cross-examination would show that all these facts are omissions in his statement under Section 161 of the Code of Criminal Procedure and he has stated the same for the first time before the Court. He has further stated in his examination-in-chief that he has purchased the same from the accused for Rs. 12,310/-. However, his cross-examination would show that all these facts are omissions in his statement under Section 161 of the Code of Criminal Procedure and he has stated the same for the first time before the Court. We find that, as such, the said circumstance also cannot be said to be of any use to the prosecution case. 14. The another circumstance on which the learned trial Court relies is the button seized from the spot matching the shirt of appellant. Prosecution in this aspect relies on the evidence of Mukul Ogewar (PW10) the Investigating Officer. It is to be noted that though the deceased is said to have died on 9.4.2016 and though his cremation is done on 10.4.2016, the spot panchanama, which was executed admittedly after 18.4.2016, showed that the buttons which matched the shirt of accused were found on the spot. 15. We find that the prosecution has utterly failed to prove the incriminating circumstances beyond reasonable doubt and in any case, the chain of events, which are so interwoven to each other, which leads to no other conclusion than guilt of the accused. In the result, the following order is passed. (i) The Criminal Appeal is allowed. (ii) The impugned Judgment and Order of conviction and sentence, dt.27/7/2017 passed by the learned Additional Sessions Judge, Chandrapur in Sessions Case No.77/2016 is quashed and set aside. The appellant is acquitted of the offences charged with. (iii) The appellant is directed to be set at liberty forthwith, if not required in any other case.