The State of Maharashtra vs Chandrashekhar

V.L. Achliya, J.—By the judgment and order dated 16/05/2013 passed in Sessions Case No. 159 of 2010, the learned Ad-hoc Additional Sessions Judge-3, Thane convicted the appellant/accused for committing offence punishable u/s. 376(2)(f) and 302 of I.P.C. For committing offence u/s. 376(2)(f) of I.P.C. the appellant is sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/- and in default to suffer Rigorous Imprisonment for six months. For committing offence u/s. 302 of I.P.C. the appellant is awarded with capital punishment. As sentence of death was imposed on the accused, the learned Additional Session Judge has made reference to this Court for confirmation of death sentence which is registered as Confirmation Case No. 5 of 2013. The appellant-original accused being aggrieved by the very same judgment and order of conviction, preferred appeal which is registered as Criminal Appeal No. 1286 of 2013. As the confirmation case and the appeal are directed against same judgment and order, we have heard both the cases together and have taken them up for disposal by a common judgment and order. In brief, the facts of the prosecution case are as under:

(i) Prosecution has approached with a case that in the year 2009, Kum. Priti-the victim girl aged about 8 years was residing with her parents, two sisters and one brother in a room located in Lokmanyanagar, (also known as Rajendranagar), Vartaknagar, Thane. She was studying in second standard. On 24/12/2009 at about 8.00 p.m., the victim girl came out of her house to play with girls residing in her neighbourhood. Sometime after 8.30 p.m. Chanda-(PW 10) the elder sister of victim girl came out of her house to call her younger sister for dinner. However, the victim girl was not found outside the house. Therefore, at about 9.30 p.m. Rajeshkumar (PW 2) - the father of victim girl who is the complainant in the case came out of his house and started searching for his daughter. At about 9.30 p.m. he met the accused in front of his house. The accused was residing in the same locality. He inquired from him about his missing daughter. The accused told him that at about 8.30 p.m. he gave biscuit and chocolate to her from adjoining shop of Mama (PW 12). P.W. No. 2 and some persons from locality went in search of missing girl in the nearby locality. But they could not trace her. At 11.00 p.m. while Rajeshkumar (P.W. No. 2) was searching his daughter, the accused again met him in the Rajendranagar locality. He told him that he could not trace his daughter. The accused again told him that at 8.30 p.m. he met his daughter i.e. victim girl and he does not know as to where she has gone. Since the whereabouts of victim girl could not be traced in the midnight, the father of missing girl along with some people from locality visited the police station and orally reported the facts about his missing daughter and stated that he will search for his daughter and if she could not be traced, he will again visit the police station with her photograph. He was assured by the police official that police will make search of his daughter. Rajeshkumar (PW 2) - visited police station at about 12.00 p.m. and thereafter continued to search his daughter.

(ii) On 25/12/2009, at about 6.00 a.m. he left his house in search of his daughter. At about 8.00 a.m., he received phone call from his daughter Chanda (PW 10) who informed him that the murder of his daughter has taken place and her dead body is lying in firing range ground. He, therefore, rushed towards firing range ground. He saw the crowd of the people gathered at that place. When he reached there, he saw the dead body of his daughter lying on the ground with blood all over her body. He also noticed blood on the stones lying nearby his daughter''s body. He further noticed that the slack of his daughter was lying by the side of her dead body. Frock on her body was smeared with blood. There were injuries over her head and face. He lodged a complaint in respect of the incident with Police Station, Vartaknagar, Thane. In the complaint lodged, the complainant has named the accused as person responsible for causing the death of his daughter. On the basis of complaint lodged, P.I.-Vijay Shankar Jagtap (PW 16) registered offence u/s. 376(1) and 302 of IPC against appellant accused vide C.R. No. 376 of 2009. PI-Jagtap instructed PSI-Meghna Burande (PW 15) to visit the place of incident. She visited the place of incident and conducted an inquest panchanama (Exh. 47) of the dead body of victim girl in presence of panch witnesses and then referred the dead body for postmortem. Dr. Sadhana Thorat (PW 13) and Dr. Shinde (PW 14) conducted an autopsy of the dead body of deceased and issued P.M. report vide Exh. 62. PI-Jagtap visited the spot of incident. He inspected the spot in presence of panch witness Umesh Gound (PW 1). On spot, he noticed one big stone with stains of blood over it, some small stones, dried leaves with stains of blood over them. He also noticed one slack (Article F) of the deceased lying on the spot. He obtained the sample of the earth and earth mixed with blood from spot of incident. He seized those articles lying on the spot. He also noticed five coupons of the canteen running in the premises of Indian Smelting and Refining Company Limited, Thane lying nearby to the place where the dead body of deceased was found. He seized those five coupons. All the articles found on spot were seized and sealed in presence of panch witnesses under seizure-cum-spot panchanama-Exh. 10. On 24/12/2009, at about 3.15 p.m., API-Tombe produced the accused at police station. He arrested the accused vide panchanama-Exh. 51 in presence of panch witness-Satishchandra Palhak (PW 9). The clothes which were on the person of the accused were seized and sealed in presence of panch witnesses vide panchanama-Exh. 51. He recorded the statements of Radhakrishna Chenappa Shetti (PW 3), Kum. Suman Hiralal Rajbhar (PW 5), Kum. Aarti @ Rani Varma (PW 6). Rajesh Rajbhar (PW 8), Chandrakumari Madhesia (PW 10) and some other witnesses. The appellant accused was referred for medical examination as well as for obtaining sample of his blood, semen, pubic hair and nail clippings, Dr. Sadhana Thorat (PW 13) examined the accused and obtained the samples as per requisition. The clothes of the deceased brought from the hospital were also seized and sealed in presence of panch witnesses. On 31/12/2009, the muddemal property as well as viscera was sent to Chemical Analyzer along with forwarding letter-(Exh. 74).

On completion of investigation, the charge sheet was prepared and filed in the court of Judicial Magistrate First Class, Court No. 2, Thane. Since the offence u/s. 376(1)and 302 of IPC being exclusively triable by Court of Sessions, the case was committed to Court of Sessions, Thane. On committal of case, it was assigned to the file of Ad-hoc District Judge-3 and Additional Session Judge, Thane. On 18/02/2012, the learned Ad-hoc Additional Session Judge framed charges against the appellant. The accused was charged for committing offences punishable under sections 376 and 302 of IPC. The accused pleaded not guilty to the said charges and claimed to be tried.

In order to prove it''s case, the prosecution has examined seventeen witnesses. The appellant has not examined arty witness in support of his defence. From the cross-examination of the prosecution witnesses and statement recorded u/s 313 of Cr.P.C., the defence of accused appears to be of total denial and false implication. On conclusion of trial, the learned Additional Session Judge, found the accused guilty of offence u/s. 376(2)(f) and 302 of IPC and sentenced him to undergo imprisonment for life and pay fine of Rs. 5,000/- and in default, to undergo further R.I. for six months and for offence u/s. 302 of IPC awarded death sentence subject to confirmation by this Court.

In view of the reference received u/s. 366 of Cr.P.C., the case is registered as Confirmation Case No. 5 of 2013. The appellant/accused being aggrieved by the judgment and Order passed by the learned Additional Session Judge, Thane has preferred appeal, which is registered as Criminal Appeal No. 1286 of 2013. Since the Confirmation case and Appeal are arising out of the same judgment and order, they are taken up for hearing and disposal together.

We have heard Mr. Pankaj Kavale the learned counsel for the appellant and Mrs. Mankuwar Deshmukh the learned APP for the State. With their assistance, we have minutely scrutinized the oral and documentary evidence on record. We have also considered the reasons and findings recorded by the learned Additional Session Judge in convicting the appellant for committing offence u/s. 376(2)(f) and 302 of IPC. We have also considered the reasons and findings recorded by learned Additional Session Judge in awarding capital punishment to appellant/accused.

If we consider the overall case of the prosecution, the defence of accused, the oral and documentary evidence adduced by the prosecution, the cross-examination of prosecution witnesses and grounds raised in appeal then the defence has riot disputed the factum of incident. Defence has also not disputed that the deceased was minor in age and at the relevant time her age was about 8 years. Defence has also not disputed the fact that the deceased was found to be missing on 24/12/2009 at about 8.30 p.m. and her dead body was discovered at about 8.00 a.m. on 25/12/2009 in firing range ground. So also defence has not disputed that the deceased was raped and murdered. The defence of accused is that of total denial and false implication. In the nutshell, the accused has denied his involvement in commission of offence. It is, therefore, necessary to scrutinize the evidence, whether prosecution has established the complicity of accused in commission of offence and proved the guilt of accused beyond reasonable doubt.

In order to prove it''s case that the deceased was raped and murdered, the prosecution has adduced sufficient evidence to establish it''s case. Prosecution has examined Dr. Sadhana Thorat (PW 13) - the Medical Officer attached to Civil Hospital, Thane, who conducted the autopsy of dead body of victim girl. Her testimony is at Exh. 60. She has deposed that on 25/12/2009, she conducted the postmortem on the dead body of victim girl aged 8 years. At the time of conducting postmortem of victim girl, Dr. Madhukar Shinde (PW 14)-a gynaecologist and Medical Officer attached to Civil Hospital, Thane was also present with her. She has deposed that on gynaecological examination, they have recorded their findings as under:

P.V. admitted one finger easily. There was Hymeneal tear. We found bleeding in vagina. There was abrasion of labia around vagina and in groin region. We also found off white colour fluid and around external genital spreading over to anus.

The above injuries were on private part of the dead body. We on also found other injuries on rest of the body as under: Parietal contusion seen Reddish in colour, circular around the whole anus opening. Whole tear like external genital to anus, stained with blood and off white colour fluid stains.

Contusion over neck (ligature mark) seen over anterior part of neck starting from just below left angle of mandible crossing mid line of neck, ending at right lateral part of neck. Ligature mark situated above thyroid cartilage measuring about 8 x 1 c.m. on cut section underlying tissues are congested, contused and edematous.

Nostrils are reddish.

There was hemorrhage over Sclera.

There was contusion just below medial end of clavicle on left side measuring about 4 x 2 c.m. and right side measuring about 2 x 2 c.m.

Contusion over forehead on left side extending up to left zygomatic area measuring about 10 x 4 c.m.

Contusion on right zygomatic area, measuring about 3 x 2 c.m. on palpation by lateral temporal bones were found fractured.

P.W. No. 13 has deposed that the injuries mentioned herein above were anti mortem. On internal examination, they found fracture of bilateral temporal region and skull-brain. They have further noticed clotted blood throughout cerebellum. On examination of lung, they have found hemorrhagic patches on both lungs. P.W. No. 13 has opined that the cause of death of deceased was due to strangulation associated with head injury and rape. The postmortem report is at Exh. 62.

P.W. No. 13 was cross-examined at length. If we consider the cross-examination of P.W. No. 13, then it is mostly confined to medical examination of accused. In cross-examination P.W. No. 13 has admitted that the white colour fluid which was found on the private part of the deceased victim girl and the sample of which was obtained by her may be suspected semen. She has further admitted that the ligature marks are normally caused due to rope or similar object. She has further admitted that in the present case, the rope or piece of cloth may have been used for strangulation. She has categorically admitted the ligature mark noticed on the body of the deceased which is referred as injury No. 3 in Column No. 17 of the postmortem report, is not possible due to strangulation by hand. She has admitted that the age of contusion can be ascertained by it''s colour and she has not recorded the colour of contusion in postmortem report (Exh. 62). She has further admitted that in absence of the colour of the contusion, it is difficult to determine the age of the contusion. She has further admitted that looking at the injuries referred in postmortem report, there is every possibility of blood stains on the clothes of offender.

Prosecution has examined Dr. Madhukar Shinde (PW 14). His testimony is at Exh. 65. He has corroborated the testimony of Dr. Sadhana Thorat (PW 13). He has deposed that at the time of examination of dead body of deceased, he found the hymen was torn and there was bleeding in vagina. He found abrasion on the private part of the deceased. White colour fluid was found spread from vagina to anus. The vagina was torn up to anus. He has deposed that the vagina was torn due to forcible intercourse. He has categorically deposed that forcible sexual intercourse was attempted on deceased. He has admitted in the cross-examination that looking to the forcible intercourse, the blood stains and vaginal fluid may appear on the person of offender. Although P.W. No. 14 has denied the suggestion that in such cases, there must be injuries on the private part of the offender but he has admitted that in such case the injuries on the private part of the offender are possible.

Thus, if we consider the testimonies of Dr. Sadhana Thorat (PW 13) and Dr. Madhukar Shinde (PW 14) and postmortem report (Exh. 62), then the case of prosecution that deceased was subjected to forcible sexual intercourse before causing her death as well as the cause of her death due to strangulation associated with head injury has not been disputed by defence. We have, therefore, no hesitation in reaching to the conclusion that the prosecution has adduced sufficient evidence to prove that the deceased was raped and murdered and she died on account of homicidal death. Thus the reasons and findings recorded by learned Additional Session Judge on this aspect are based upon due appreciation of evidence on record and calls for no interference in exercise of appellate jurisdiction.

We have already discussed in forgoing paras the prosecution''s case as well as the defence of the accused. The defence has not disputed the over all case of the prosecution except involvement of accused in commission of offence. The learned Additional Session Judge has relied upon the following incriminating circumstances in convicting the appellant/accused:

(1) The accused was last seen together at about 8.30 p.m. in the locality where the deceased victim girl and the accused reside. Immediately thereafter deceased victim girl disappeared.

(2) The coupons of the canteen of the company where the accused is working were found at the place of incident. Similar coupons were also found in the pocket of his shirt at the time of his arrest on 25/12/2009.

(3) Nail marks were found on the both forearm on dorsal aspect on the neck and on mandible area of the accused. The age of such nail marks is 24-48 hours which corresponds to the time period when the deceased victim girl was found missing.

(4) Blood stains on the shirt and the underwear of the accused were found. As per the report of C.A., the blood group of stains found on the shirt and underwear of the accused were inconclusive. However, it is the human blood.

(5) There is no reason as to why the blood appear on the underwear of the accused unless he has committed the rape upon the deceased victim girl.

(6) There is evidence of panch witness to inquest panchanama and woman PSI-Burande who conducted the inquest panchanama as well as Dr. Sadhana Thorat, Dr. Shinde that they found blood coming out of the private part of the deceased. The vagina found ruptured up to anus. This itself shows that at the time of forceful intercourse there would have been bleeding, as a result of which the underwear of the accused would have been stained with blood.

Mr. Kavale-the learned counsel for the appellant by referring the reasons and findings recorded by the learned Additional Session Judge and evidence on record strenuously contended that the entire reasons and findings recorded by learned Additional Session Judge in convicting the appellant are perverse and based upon improper appreciation of evidence and in disregard of settled principles of law as to appreciation of evidence in a case based upon circumstantial evidence. The learned counsel has submitted that there are no eye-witnesses to the incident. The entire case of the prosecution is based upon circumstantial evidence. In a case based upon circumstantial evidence, it is incumbent upon the prosecution to establish chain of evidence so complete as 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 in question must have been done by the accused and accused alone. The learned counsel has further submitted that in a case based upon circumstantial evidence, the court is duty bound to ensure that the suspicion however grave never take the place of legal proof. The learned counsel has argued that the reasons and findings recorded by the learned Additional Session Judge are wholly based upon conjecture and surmises. The learned counsel has submitted that the prosecution could not establish a single circumstance referred above to prove the complicity of accused in commission of offence. The learned counsel has submitted that the reasons and findings recorded by learned Judge are not only perverse, but same are also not sustainable in law.

On the other hand, the learned APP for the State has supported the judgment of the trial court. The learned APP has submitted that the prosecution has proved each and every circumstance as relied by prosecution to prove the guilt of appellant by leading cogent, convincing and reliable evidence. The learned APP has submitted that the prosecution has examined Kum. Suman (PW 5), Kum. Aarti (PW 6) and Rajesh (PW 8)-the witnesses who had last seen the accused and deceased together at 8.30 p.m. on 24/12/2009 i.e. about 10 to 11 hours prior to recovery of the dead body of the deceased. Learned APP has further submitted that the injuries which were found on the body of the accused, existence of stains of human blood found on the clothes of the accused and stains of semen found on the underwear of the accused establishes chain of events so complete that it leaves no Scope for raising any doubt as to complicity of accused in commission of offence. The learned APP has submitted that the evidence adduced by prosecution is more than sufficient to prove the guilt of accused beyond reasonable doubt. The learned APP has further submitted that the reasons and findings recorded by the learned Additional Session Judge are based on due appreciation of evidence on record and Cannot be termed as perverse so as to call for interfere in exercise of appellate jurisdiction.

So far first circumstance relied by prosecution is concerned, the prosecution has relied on the testimony of four witnesses viz. Kum. Suman Hiralal Rajbhar (PW 5)-a minor girl aged about 10 years, Kum. Aarti Varma (PW 6)-minor girl aged about 9 years, Rajesh Rajbhar (PW 8) and Shivaji Salwa Khot (PW 12) as witnesses who had last seen the appellant and deceased together on 24/1272009 at about 8.30 p.m. near the house of the deceased in Lokmanyanagar locality. Out of four witnesses examined by the prosecution, the prosecution witness-Shivaji Salwa Khot (PW 12) has not supported the case of the prosecution and he was declared hostile to the prosecution.

Prosecution has examined Kum. Suman Rajbhar (PW 5)-a minor girl aged about 10 years to establish the circumstance that the deceased and appellant were last seen together in the locality on 24/12/2009 at about 8.30 p.m. It appears from record that the learned Additional Session Judge has allowed P.W. No. 5 to depose with the assistance of her mother, as it was disclosed before the trial Court that due to congenital anomaly, she was unable to speak clearly. The learned Additional Session Judge has allowed the mother of the witness to act as interpreter and to tell the court the answers given by the witness, as the court found it difficult to understand the answers given by the witness. It is evident from record that the oath was administered to the mother of the witness and thereafter, the evidence of P.W. No. 5 has been recorded. The testimony of P.W. No. 5 is at Exh. 20. P.W. No. 5 has deposed that on the day of incident, in the evening while she was playing outside her house along with Priti (deceased) and Rani @ Aarti (PW 6), the accused came there. He told them that he has received his salary and asked them to accompany him for having chocolate. Therefore, all of them went with the accused to shop of Mama (PW 12) located near their houses. She has further deposed that they were playing goti outside their houses. While they were playing goti her brother Rajesh (PW 8) came there. Accused asked him as to whether he has Kolhapuri (i.e. gutkha). Since her brother asked her to accompany him to go to their house, she went to her house and Rani (PW 6) also went to her house. She has deposed that she does not know as to what had happened after she left for her house.

The learned counsel for the appellant has cross-examined this witness at length. In the cross-examination, the learned counsel has brought on record the over all level of intellectual capacity, understanding and memory of the witness. In the cross-examination, of P.W. No. 5, it has been brought on record that once she failed in class as she could not remember her lessons. It is further brought on record through her cross-examination that she remembers lesson after she was taught the lesson three times. In cross-examination, she was unable to tell the name of the school in which her brother was studying. It is further brought through her cross-examination that she does not like chocolate. She had toothache. She had never eaten chocolate. She was unable to tell the taste of the chocolate. It is also brought on record through her cross-examination that her mother and father told her in the morning that accused had committed the murder and he is not a good person. In her cross-examination, P.W. No. 5 failed to state the colour and the name of the chocolate purchased from the shop of Mama (PW 12). It is further brought on record through her cross-examination that the shop from where the chocolates were purchased was located at an audible distance from her house. The learned Judge has noted the demeanor of the witness as well as the whisper of the words in the ear of witness by the mother during recording of evidence and subsequent conduct of witness when she stopped giving answers to questions put to her in cross-examination.

Prosecution has examined Kum. Aarti Ramchandra Varma (PW 6) as another witness to prove the circumstance of last seen together. Her testimony is at Exh. 23. In her evidence, she has deposed that she knows the accused as he was residing behind her house. She used to call him as Uncle. She has further deposed that she is also known as ''Rani''. She was playing along with Priti (deceased) and Suman (PW 5) at a distance of two houses from her house. While they were playing, accused came there. He gave one rupee to Priti. Thereafter, she left for her house. Priti was with accused.

P.W. No. 6 was cross-examined at length by learned counsel for the appellant. In the cross-examination, she has deposed that the house of Priti is not visible from her house. She has further deposed that accused was residing in same chawl in which Priti was residing. She has further deposed that sister of accused was residing with him. She has deposed that a number of people in the locality used to watch them while they used to play. She has further deposed that on the day of incident, they were playing ''langadi'' in front of house of one Payal. She has further deposed that generally the doors of the houses in the chawl used to remain open during the day time. However, some people use to close the door of their houses during afternoon hours, while sleeping. She has further deposed that there are several houses in the locality. In her cross-examination, she has admitted that she does not know the place where Priti had gone and with whom she had gone. She has further deposed that Priti''s father used to give her money and accused also used to give her Parle-G chocolate. He used to give her different chocolates. She has further deposed that as they used to play in a lane outside their house, the accused used to give chocolates to them. The accused had never scolded or beaten her. She has further deposed that as she had to sleep, she went to her house. She has further deposed that Suman (PW 5) was not eating chocolate. The witness was specifically suggested that after giving one rupee to Priti, the accused went to his house. However, the witness has not responded to that question. In reply to the question, she has deposed that she went to her house. She has further deposed that after she went to her house, the brother of Suman came there and he took her sister to his house. She has again stated that while she was going towards her house, Suman''s brother came there and Suman went along with him. She has admitted in the cross-examination that the people from the locality used to love children and the neighbouring persons occasionally gave them chocolate and biscuits. In the cross-examination, she has admitted that twice she has come to court to give evidence and her mother told her that she has to depose before the Court. She has denied the suggestion that she was told as to what depose before the Court.

Prosecution has examined Rajesh Hiralal Rajbhar (PW 8), whose testimony is at Exh. 48. He is another witness relied by the prosecution to establish the circumstance of last seen together. He has deposed that on 24/12/2009, he was given night duty due to heavy work load in the company. After completing day time duty, as he was to again attend night duty, he came to his house at about 8.30 p.m. to take dinner. At that time, his sister Suman (PW 6) and her friend Aarti (PW 5) as well as Priti (deceased) were present in the lane near his house. At that time, accused was also present at that place. He asked for gutkha. He gave him gutkha. In the meantime, the mother of Aarti (PW 5) called her. Therefore, she proceeded towards her house. He too asked Suman to accompany him. She, therefore, followed him. When he left towards his house, Priti (i.e. deceased) and Chandrashekhar (i.e. accused) were present in the lane. After finishing dinner, he again left his house to attend his duty. On next day while he was coming from duty, he found the crowd gathered at the open place near the locality and noticed the dead body of Priti. Thus, if we consider the overall testimony of Rajesh Rajbhar (PW 8), the only relevant fact which has been brought on record through the testimony of this witness is that at about 8.30 p.m., he had seen the deceased and accused present in the lane outside his house.

In order to corroborate the testimony of P.W. 5, 6 and 8 and also to establish the fact that deceased was last seen in the company of accused on 24/12/2009, the prosecution has examined Shivaji Khot (PW 12). His testimony is at Exh. 58. He has deposed that he runs a grocery shop in the name of "Jyotirling Kirana Store" at Lane No. 1, Lokmanyanagar, Pada No. 4 which is also known as ''Santosh Patil Nagar''. He has deposed that he knows the complainant-Rajeshkumar (PW 2), his wife as well as his children. He has further deposed that on 24/12/2009, the daughter of Rajeshkumar (PW 2), who was aged about four to five years came to his shop and purchased chocolate from his shop. When she visited his shop for purchasing chocolate, she was alone and nobody accompanied her. On 25/12/2009, he found people running towards military ground, therefore, he too visited the place. He found the dead body of same girl who had visited his shop on earlier day and purchased chocolate. The witness was declared hostile to prosecution. The learned A.P.P. after seeking permission from the Court put the question in the nature of cross-examination to said witness. The witness has categorically denied the suggestion that on 24/12/2009 at about 8.30 p.m., the accused along with Priti came to his shop and accused purchased chocolates and biscuits for her, handed over the same to her and thereafter both of them left his shop. Thus, through cross-examination of this witness, the prosecution could not elicit any evidence to find favour to case of prosecution. It is also pertinent to note that even the witness was not confronted with his previous statement made to the Investigating Officer.

Thus, even if we consider the testimonies of aforesaid witnesses relied by the prosecution to establish the circumstances of last seen together as truthful and reliable still on the basis of their evidence, at the most it can be said that the prosecution has established the fact that on 24/12/2009 at about 8.30 p.m., the deceased and appellant were last seen present in the lane near the house of Suman (PW 5).

There is material contradictions in the testimonies of P.W. No. 5 and 6. Aarti (PW 5) has deposed that accused had taken all the three girls together to nearby shop for purchasing chocolate. Whereas the testimony of Suman (PW 6) is altogether different and in material contradiction with the testimony of P.W. No. 5. According to P.W. No. 6, the accused had given one rupee to Priti to purchase chocolate. She has not stated a single word that either Priti or all of them had gone to the shop of P.W. No. 12 for purchasing the chocolate. Besides this, there are number of contradictions in the testimonies of these witnesses. Through the testimony of Rajesh Rajbhar (PW 8) the prosecution has only established the fact that he had seen the accused and three girls i.e. Priti, Aarti and Suman together in the lane in front of his house and when he left for his house the accused and Priti were present in the lane. The evidence of these witnesses is noway sufficient to establish the case of the prosecution that on and after 8.30 p.m. the deceased was carried by the accused towards firing range ground where her dead body was discovered on next day morning after the girl was found missing. The prosecution witness-Khot (PW 12) has categorically deposed that Kum. Priti (deceased) had come alone to his shop for purchasing chocolate and that nobody accompanied her. He has categorically denied that at about 8.30 p.m. the accused had visited his shop along with Priti and purchased biscuits and chocolate. There is no evidence to show that from the place where the deceased and appellant were seen on 24/12/2009 at 8.30 p.m. they were seen together proceeding towards the place where the dead body of deceased was found or any other place or direction. The recovery of the dead body of deceased was after about 10 to 12 hours after she was alleged to have last seen together in the company of appellant that too in the locality i.e. outside their house. In our view, mere presence of appellant and deceased in the locality at 8.30 p.m. outside their house cannot be treated as an incriminating circumstance to form basis for convicting a person.

Mr. Pankaj Kavale-the learned counsel for the appellant by referring the testimonies of P.W. Nos. 5 and 6 strenuously contended that the testimonies of these child witnesses cannot be relied for the sole reason that their testimonies are found to be in material contradiction with each other and in view of evidence brought on record the possibility of they being tutored cannot be ruled out. He has further argued that there is no consistency as to the material fact deposed by P.W. Nos. 5 and 6. The version given by P.W. No. 5 of appellant and deceased last seen together is altogether different than the version given by P.W. No. 6. He has further pointed out that the child witnesses examined by the prosecution are from the same locality. Due to the incident of rape and murder of the deceased, the parents of the witness were carrying feeling of hatred and animus against the accused. It has come on record through cross-examination of P.W. Nos. 5 and 6 that the said witnesses were told by their respective parents that the accused had murdered the deceased. He has pointed out from the deposition of P.W. No. 5 that her mother, who was allowed to remain present during the recording of evidence of P.W. No. 5 was trying to suggest the answers to P.W. No. 5 and was also found to be whispering in the ear of said witness. He has further submitted that the testimony of P.W. No. 8 cannot be relied as he is an interested witness being close to father of deceased and residing in same locality. P.W. No. 12 has not supported the case of the prosecution. The learned counsel has further argued that there is no corroboration to the testimonies of P.W. No. 5, 6 and 8 from independent witness. The learned counsel for the appellant has contended that it is a settled position in law that as the child witness being most susceptible to tutoring, their testimonies needs to be evaluated carefully and same should be accepted if adequately corroborated. In support of his submission, the counsel has placed reliance on the judgments of this Court in the case of Narayan Kanu Datavale and others Vs. State of Maharashtra, , Lalsing Sutarya Pawara Vs. The State of Maharashtra and the judgment of Apex Court in the case of K. Venkateshwarlu Vs. The State of Andhra Pradesh,

On the other hand, the learned A.P.P. for the State has strenuously contended that there is no material contradiction in the testimonies of P.W. Nos. 5 and 6 so as to discard and disbelieve their evidence. She has further argued that the testimonies of P.W. Nos. 5, 6 inspires full confidence. The learned A.P.P. has further argued that the testimony of Rajesh Rajbhar (PW 8) remained unshaken and unshattered in the cross-examination. The learned A.P.P. has submitted that there is settled position in law that the child witness is a competent witness and Court can very well rely upon the testimony of such witnesses if inspires confidence. In support of her contention, the learned A.P.P. has placed reliance on the judgments of the Apex Court in the case of State of M.P. Vs. Ramesh and Another, , Dattu Ramrao Sakhare and Others Vs. State of Maharashtra, , Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat,

We have discussed in foregoing paras the facts deposed by both the child witnesses as well as the material evidence brought on record by the defence through their cross-examination. It is a well settled position in law that the child witness is a competent witness. However, the court is expected to take precaution before acting upon the testimony of such child witness as there is every possibility that such witness might act under the influence of someone and so also such witness may be tutored, coerced or induced to depose against the person. Therefore, as a rule of caution, the Court is expected to insist for corroboration for the testimony of such witness depending upon the facts and circumstances of case and evidence adduced.

In the case of K. Venkateshwarlu vs. State of Andhra Pradesh, relied by the learned counsel for the appellant, the Apex Court has considered the broad principles to be borne in mind while evaluating and assessing the evidence of child witness. In Para. 9 of the judgment, the Apex Court has observed as under:

Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.

In the case of Dattu Ramrao Sakhare Ors. vs. State of Maharashtra relied by the learned APP for the State, Apex Court has held that evidence of child witness can be considered, provided the witness is found to be reliable and there is no likelihood that witness was tutored. The Apex Court has further observed that as a rule of prudence it is desirable to have corroboration to such evidence from other dependable evidence on record. In Para. 5 of the judgment, the Apex Court has observed as under:

The entire prosecution case rested upon the evidence of Sarubai (P.W. 2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered u/s 118 of the evidence Act provided that such witness is able to understand the question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored. There is no practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record.

In the case of Ratansingh Dalsukhbhai Nayak vs. State of Gujrat relied by learned APP for the State, the Apex Court has observed that the child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily. The court must carefully scrutinize their evidence and only after reaching a conclusion as to the truthfulness in the testimony of such witness, the Court may accept such testimony. In Para. 7, the Apex Court has observed as under:

The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

In the case of State of M.P. Vs. Ramesh and Another, relied by learned APP for the State, the Apex Court after considering the earlier decisions on the point of competence and reliability of testimony of child witness has recorded its conclusion in Para. 14 as under:

In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.

Keeping in mind the broad principles to be followed while evaluating and assessing the evidence of child witnesses and scrutinized the testimony of Kum. Suman (PW 5) and Kum. Aarti (PW 6), we are of the view that it is unsafe to rely upon the testimonies of these witnesses without corroboration so as to guarantee the truthfulness of facts deposed by them as true and reliable. We have already discussed in forgoing paras the evidence of said two witnesses including the material evidence brought through their cross-examination. The learned counsel for the appellant has rightly pointed out that there is no consistency in the testimony of P.W. Nos. 5 and 6 as to the material facts deposed by them as to fact relating to deceased was last seen together in the company of appellant/accused on 24/12/2009 at about 8.30 p.m. The material fact deposed by Kum. Suman (PW 5) reads as under:

On the day of incident in the evening I along with Priti and Rani were playing beside my house. The accused came there. He told that he had received the salary and asked us to accompany him for having chocolate. I along with Priti and Rani went for the chocolate with the accused. We went to the shop of Mama. The shop is situated near my house. We were playing Goti. In the mean time my brother Rajesh came there. The accused asked him whether he has Kolhapur: My brother asked me to accompany to our house. Rani went at home (Ld. Advocate pointed out that the mother of the witness had given hint of her Only Priti and accused were there. I do not know what happened there.

So far as the material facts deposed by Kum. Aarti (PW 6) as to the deceased and appellant were last seen together, reads as under:

I know the accused before the Court. He resides in the chawl behind my house. I call the accused uncle. His name is Shekhar. Priti is not there. I along with Priti and Suman were playing. I am also known as Rani. We were playing at a distance of 2 houses from my house. While we were playing accused came there. He gave one rupee to Priti. As it was being late, I went to my house. Priti was with accused. Priti is no more alive.

After carefully scrutinizing the relevant fact deposed by P.W. No. 5 and 6, we are of the view that there is a material contradiction in the testimonies of these witnesses. As per the version of P.W. No. 5-Kum. Suman, the accused asked all of them to accompany him for giving them chocolates and all of them went to shop of Mama (PW 12) with accused. Whereas P.W. No. 6-Kum. Aarti is concerned, she has deposed that while they were playing near their houses, accused came there and gave one rupee to Priti. She has not said anything about visiting the shop of Mama (PW 12) with accused. If we examine the testimonies of these two witnesses in the light of the testimony of Shivaji Khot (PW 12)-the grocery shop-keeper in the locality, then he has stated that the victim girl alone visited his shop on 24/12/2009 for purchasing chocolate. He has categorically stated that nobody was accompanied her when she visited his shop. He has specifically denied the suggestion that accused accompanied with said girl when she visited his shop for purchasing chocolate. Thus the testimony of P.W. No. 12 totally contradicts the testimony of Kum. Suman (PW 5), who has deposed that all of them visited the shop of P.W. No. 12 along with accused. If we consider the over all testimony of P.W. No. 5, then the inference can safely be drawn that the possibility of this witness being tutored cannot be ruled out. We have already discussed in the forgoing paras that the witness was allowed to be deposed in presence and assistance of her mother. The learned Additional Session Judge has taken note that while recording the testimony of P.W. No. 5 her mother was found to be giving hints to witness and whispering something in her ear. P.W. No. 5 has deposed that her father and mother told her that accused is not a good person and he has committed murder. Through cross-examination of P.W. No. 5, the defence has brought on record that her over all understanding and intellectual capacity was not good. Once she failed in the class as she could not remember her lessons. She has further stated that she remember the lessons after same is repeated for three times. It is also brought through the cross-examination that she was unable to tell the name of school in which her brother was studying. Hence, considering the over all testimony of P.W. No. 5 and assessing her intellectual, mental capacity as well as her memory, demeanor and observations recorded during the course of recording testimony of P.W. No. 5, according to us, it is highly unsafe to rely upon the testimony of prosecution witness-Suman (PW 5).

So far as the testimony of Kum. Aarti @ Rani (PW 6) is concerned, we are of the view that her testimony can be safely relied as her testimony appears to be natural and consistent with the case of the prosecution to the limited extent to establish the fact that on 24/12/2009, at about 8.30 p.m. the accused was present in the lane nearby to his house where the deceased and two other girls were playing. We have noticed that there is no tendency to make exaggeration on the part of P.W. No. 6 in deposing the fact relating to the incident. So also, her testimony found to be plain and not influenced by any person including her family members. So also, her testimony finds due corroboration from the testimony of P.W. No. 8 and P.W. No. 12. P.W. No. 6 has deposed that on the date of incident, the accused gave one rupee to Priti while they were playing. She has not stated that all of them together went to shop of Mama with accused to purchase chocolate. She has also not deposed that deceased went along with appellant to shop of Mama (PW 12). P.W. No. 12 has categorically deposed that the deceased girl alone visited his shop. He has denied the suggestion that appellant accompanied with deceased girl when deceased girl visited his shop. P.W. No. 6 has deposed to very limited extent to effect that in her presence, the accused gave one rupee to Priti and thereafter, she left for her house and at that time, the deceased and accused were present at that place. In the cross-examination, she has deposed that while she was going towards her house, Rajesh Rajbhar (PW 8) came there and Suman (PW 5) also left for her house with her brother-P.W. No. 8. The testimony of P.W. No. 6 also finds corroboration through the testimony of Rajesh Rajbhar (PW 8), who has also deposed on the same lines. It is pertinent to note that P.W. No. 5 has deposed in her cross-examination that she had never eaten chocolate as she had problem of toothache. In the cross-examination, P.W. No. 6 has categorically deposed that Kum. Suman (PW 5) not used to eat chocolate. If we consider the over all cross-examination of the witness, then there is nothing to suggest that P.W. No. 6 had any tendency to make exaggeration or she was tutored. We are, therefore, of the view that the testimony of P.W. No. 6 can be relied. Through the testimony of P.W. No. 6, the prosecution has proved the fact that on 24/12/2009 in the evening, the accused had given one rupee to deceased victim girl for purchasing chocolate and they were seen present near the house of P.W. No. 6, when she left for her house.

Rajesh Hiralal Rajbhar (PW 8) - the another witness examined by the prosecution on the point of last seen together has supported the case of the prosecution to the limited extent that on 24/12/2009 at about 8.30 p.m. he had seen his sister Kum. Suman (PW 5), Aarti (PW 6) and victim girl playing together in a lane outside his house and at that time, the accused was also present at that place. He asked for gutkha (mixture of tobacco and betel nut) and he gave it to accused. He has further deposed that as mother of Aarti (PW 6) called her, she proceeded to her house and at the same time, Kum. Suman (PW 5)-his sister also accompanied him to his house. At that time, deceased-victim girl and accused were present in the lane. The witness was cross-examined at length. However, nothing substantial has been brought on record through his cross-examination so as to disbelieve and discard his evidence. According to us, P.W. No. 8 is a most natural witness to incident. He cannot be termed as got up witness. Only for the reason that he was residing in the same locality and cordial relations with the father of deceased, the testimony of this witness cannot be discarded. So also, if we consider the over all testimony of this witness, then it cannot be said that he was highly interested to see the accused being convicted. So also, there is no evidence brought on record to suggest that he had any reason to falsely depose against the accused or anyway interested to see the accused being convicted. There is no evidence that there was any enmity in between the accused and P.W. No. 8. We are, therefore, of the view that through the testimony of Rajesh Rajbhar - P.W. No. 8, the prosecution has established the fact that on 24/12/2009 at about 8.30 p.m., the deceased victim girl and appellant were seen present in a lane nearby to Santosh Chawl, Lokmanyanagar, Thane.

Now the next question poses for our consideration that the fact proved by the prosecution that on 24/12/2009 at about 8.30 p.m. the deceased and accused were seen together in the lane near the house of deceased and the accused had given her biscuits and chocolate can be treated as an incriminating circumstance of last seen together to form a basis to convict the appellant. We have already discussed in forgoing paras that there is no eyewitness to the incident and entire case of the prosecution is based upon circumstantial evidence. Prosecution has heavily relied upon the circumstance of last seen together as a basis to connect the appellant/accused in commission of offence of rape and murder of victim girl. It is a well settled position in law that where the case is entirely based upon circumstantial evidence, the court must take great care while evaluating circumstantial evidence and ensure that the circumstances on which the prosecution relies are fully consistent with sole hypothesis of the guilt of the accused and inconsistent with the innocence of accused. When a case based upon circumstantial evidence, it must satisfy the following tests:-

01) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

02) those circumstances should unerringly point towards the guilt of the accused.

03) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else;

04) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence.

The Apex Court in the case of Hanumant Govind Nargudkar and Ann vs. State of Madhya Pradesh, AIR 1952 SC 343 has laid down that in a case where the evidence is of circumstantial nature, the circumstance from which the conclusion of guilt is to be drawn should in first instance be fully established and all the facts so established should be consistent only with the hypothesis of guilt of accused. The principles laid down in the said case has been consistently followed in subsequent decisions of Apex Court.

The Apex Court in the case of Dhananjay Chatterjee alias Dhana Vs. State of W.B., has observed in Para. 7 of the judgment as under:

It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. Since the instant case is based on circumstantial evidence and the sentence awarded by the trial court and confirmed by the High Court is that of death, we have to consider the circumstances carefully bearing the principles noticed above in mind.

In the case of Md. Mannan @ Abdul Mannan Vs. State of Bihar, the Apex Court has reiterated the principles to be borne in mind while evaluating the evidence in the case based upon circumstantial evidence. The Court has observed as under:

In our opinion to bring home the guilt on the basis of circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in a fanciful manner. In order to sustain conviction circumstantial evidence must be complete and must point towards the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard-and-fast rule can be laid down to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case.

The Apex Court in the case of State of U.P. Vs. Satish, has observed in Para. 22 of the judgment as under:

The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.

The Apex Court in the case of Shyamal Ghosh Vs. State of West Bengal, has considered the scope and ambit of application of last seen theory. It is held that, in order to apply the theory of last seen, it is incumbent on prosecution to establish the possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to the light. There must be reasonable proximity of time between these two events. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of crime becomes impossible. If the time gap is very long, then it is not only difficult, but may even not be proper for the Court to infer that the accused has been last seen alive with the deceased and responsible for the commission of offence.

In administration of criminal justice, the courts are expected to always borne in mind the following principles:

The accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him guilty of offence with which he is charged.

If two views are possible on the basis of evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted.

Where the court entertains reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favour of the accused.

The court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on the ground or on the basis of conjectures and surmises.

The case of the prosecution must be judged as a whole having regard to the totality of the evidence.

In appreciating the evidence the approach of the court must be integrated and not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in mind in coming to the conclusion as to the guilt or innocence of the accused.

In reaching to the conclusion about the guilt of the accused, the court has to appreciate, analyze and assess the evidence placed before it by yardstick of probabilities, it''s intrinsic and animus of witnesses.

The court has to keep in mind that the accused ''must be'' and not merely ''may be'' of guilty of an offence. The mainly distance between ''must be'' and ''may be'' is long and divides vague conjectures from sure conclusions.

Suspicion, however grave it may be, cannot take the place of legal proof.

The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, the benefit of doubt must be given to the accused. However, the Court must borne in mind that the reasons of doubt should not be trivial or merely a probable. It must be fair doubt i.e. based upon the reasons and common sense.

Keeping in mind the above discussed principles laid down by the Apex Court and principles to be followed in appreciation of evidence in a case based wholly upon circumstantial evidence, we proceed to analyze the evidence adduced by the prosecution and the reasons and findings recorded by the learned Additional Session Judge in convicting the appellant. We have already discussed in the forgoing paras that the prosecution has relied upon the testimonies of four witnesses to establish the circumstance of last seen together as against the appellant/accused. We have also observed in forgoing paras that out of four witnesses, the P.W. No. 12 has not supported the case of the prosecution and the testimony of Suman (PW 5)-the child witness found to be not reliable. We have found the testimony of Aarati (PW 6) and Rajesh Rajbhar (PW 8) reliable to establish the fact to the limited extent that on 24/12/2009 at about 8.30 p.m., the victim girl and accused were seen present in the lane outside the house of accused and deceased. But the prosecution has adduced no evidence to prove that the accused took the deceased to shop of P.W. No. 12 for purchasing biscuits and chocolate or both of them were last seen together going towards the place from where the dead body of the deceased was recovered on next day morning. P.W. No. 12-Khot has categorically deposed that deceased i.e. the victim girl alone visited his shop and accused was not accompanied with her. Nothing has been elicited in the cross-examination of P.W. No. 12 to find favour to the case of the prosecution. So also the evidence of P.W. No. 6 - Aarati is concerned, she has also deposed to a limited extent that while she was playing along with Suman (PW 5) and victim girl at the distance of two houses from her house, the accused came there and gave one rupee to Priti i.e. (the victim girl). She has further deposed that when she left for her house, Priti and accused were present in the lane. P.W. No. 8- the another witness relied by the prosecution to prove the circumstance of last seen is concerned, he has deposed that on 24/12/2009 at about 8.30 a.m. while he was proceeding towards his house, his sister Suman Rajbhar was playing in the lane near his house and the accused who was present there asked him to give gutkha (mixture of tobacco and betel nut). He gave gutkha to the accused. In the mean time, the mother of Aarati called her. Therefore, she proceeded to her house and P.W. No. 6 also accompanied him to his house. At that time deceased-victim girl and Chandrashekhar were present in the lane. Thus the testimony of P.W. No. 8 also does not travel beyond establishing the fact that on 24/12/2009 at about 8.30 p.m. deceased as well as accused were seen by him present in the lane when he left for his house.

If we consider the overall evidence of the witnesses examined by the prosecution to establish the circumstance of ''last seen together'', then there is no iota of evidence to show that the appellant/accused and deceased were last seen going together towards the place where the dead body of deceased was recovered on next day. None of the witness has deposed that they had seen the accused and deceased visiting the grocery shop. So also, there is no evidence as to show that the accused and deceased were seen going together from the locality towards the firing range area where the dead body of the deceased was recovered on 25/12/2009. So also there is no evidence that accused and deceased were seen together nearby the place from where her dead body was recovered.

Rajesh (PW 8) has deposed in his cross-examination that the dead body of deceased was found on 25/12/2009 at about 8.00 a.m. in the isolated place known as firing range ground located at short distance from Lokmanyanagar. Rajesh (PW 8) has deposed in his cross-examination that his house is located at walking distance of 5 to 10 minutes from the edge of the locality beyond which the said ground is located. He has further deposed that there are about 50 houses in between his house and outer edge of the ground. He has further deposed that if one goes towards to firing range ground from the lane outside his house, he has to proceed from the locality. He has further deposed that the accused was residing with his sister in the house adjoining to his house. He has categorically admitted in cross-examination that there was nothing unusual to see the accused present in the lane on 24/12/2009 at 8.30 p.m. He has further deposed in the cross-examination that he do not know as to who came in the lane after he went to his house. He has further deposed that after taking meal, while he was proceeding towards his work place, he did not see the accused present in the lane. Thus, if we consider the over all testimony of P.W. No. 8, then the presence of the appellant/accused at 8.30 p.m. on 24/12/2009 in a lane outside his house cannot be treated as unusual and incriminating circumstance to connect the appellant with the commission of offence. It is quite natural for a person like appellant residing in a locality to stand in a lane outside his house and to talk with the children playing in the lane as well as offering biscuits/chocolate to such children. There is no evidence to show that from the lane outside the house of deceased and accused, they were seen together proceeding towards the firing range ground from where the dead body of the deceased was recovered on next day i.e. after about 12 hours after the deceased was found to be missing.

Chandrakumari (PW 9)-the elder sister of the deceased has deposed in her evidence that the deceased went out of house at about 8.00 p.m. for playing with her friends. She has deposed that when she came out of her house to call her younger sister for dinner, she found her sister was not present outside the house as well as in the locality. She, therefore, reported this fact to her parents. Thereafter, her father Rajeshkumar (PW 2) went in search of her younger sister i.e. the deceased girl.

Prosecution has examined Rajeshkumar (PW 2) - the father of the deceased as P.W. No. 2. His testimony is at Exh. 14. P.W. No. 2 has deposed that at about 9.30 p.m. while he was searching his missing daughter, the accused met him in the Lokmanyanagar locality i.e. the place where the accused as well as deceased were residing. He inquired from accused as to whether he had seen his daughter. In response, the accused told him that his daughter met him at about 8.30 p.m. and he had purchased toffee and biscuits for her from the shop of Mama. He has further deposed that at about 11.00 p.m. while he was searching his daughter, he again met the accused at Pada No. 4 at Lokmanyanagar and at that time also he had a talk with the accused on the same issue and the accused told him that he does not know as to where Priti had gone after getting toffee and biscuits. In the cross-examination, P.W. No. 2 has categorically admitted that when he met accused at 9.30 p.m. as well as 11.00 p.m., he did not suspect anything against the accused. He has admitted in the cross-examination that when he met accused at 9.30 p.m. as well as at 11.00 p.m. he found that the accused was wearing same clothes. He did not notice anything unusual on his clothes. He has further admitted in the cross-examination that he also visited the shop from where the accused purchased eatable for his daughter, located nearby to his house and the shop owner also did not disclose anything unusual to him. He has deposed that when he met accused at 9.30 p.m. at that time he had talk with him for about two minutes. He further deposed that at 11.00 p.m. he met with accused at his residence. He has categorically deposed that he has visited the house of accused on 24/12/2009 at 11.00 p.m. P.W. No. 2 has deposed that in the midnight when he visited police station and reported about his missing daughter, he has not expressed suspicion against the accused. He has further admitted that giving an eatable by an accused to his daughter was a normal conduct, therefore he did not suspect anything against him. He has deposed in his cross-examination that the house of accused is at a distance of 20 minutes walk from the place of incident.

Thus, even if we presume the case of the prosecution as true and correct and the testimony of witnesses examined by the prosecution as reliable to establish the fact that the deceased and accused were seen together at 8.30 p.m. on 24/12/2009 in a lane outside their house in the light of the testimony of Aarti (PW 6) and Rajesh (PW 8), still the facts so established by the prosecution cannot be treated as a incriminating circumstance to establish the complicity of accused in commission of offence. It is pertinent to note that at about 9.30 p.m. when the father of deceased (PW 2) was searching his daughter, he met with accused and inquired about his missing daughter. He met the accused in the locality. Thus, through the testimony of P.W. No. 2 itself, the defence has conclusively established that the accused was very much present in the locality at 9.30 p.m. We have already discussed in the forgoing paras, the testimony of P.W. No. 2. P.W. No. 2 has admitted in cross-examination that when he met accused at 9.30 p.m., he had found nothing unusual on the basis of clothes on the body of accused as well as from his physical appearance. It has come on record through the testimony of Rajeshkumar (PW 2) i.e. father of the deceased girl that second time when he met the accused at 11.00 p.m. he met him at his residence. At that time also, he found nothing unusual from the clothes as well as his appearance. He had a talk with the accused for about two minutes. He has further admitted that when he visited the police station at midnight, that time also he had not suspected anything against the accused. P.W. No. 2 has admitted that there was nothing unusual in giving toffee and biscuits by an accused to his daughter. P.W. No. 2 has further deposed in his cross-examination that except the fact of giving of biscuit and toffee to his daughter by accused, there was no reason for him to suspect against him of the alleged offence. All these facts on record sufficient to establish the presence of accused in the locality up to 11 p.m. and thereby create strong circumstance of innocence in favour of accused.

The fact that accused was very much present in the locality at 9.30 p.m. and 11.00 p.m. proved through P.W. No. 2 and there is no evidence to show that during the intervening period of 9.30 p.m. to 11.00 p.m., the accused was not present at his house or any evidence to show that from 11.00 p.m. onwards the accused was not present at his house again raises strong circumstance of innocence of accused. It has come on record that the family members of the deceased as well as large number of people from the locality were searching the missing girl till late night. It is nowhere the case of the prosecution that accused was found to be missing from his house after 11.00 p.m. So also, it is no where the case of the prosecution that accused was found to be absconding from his house on 25/32/2009. On the contrary, from the testimony of P.W. No. 2 it is established that on 25/12/2009, when the dead body of the deceased was recovered, the accused was very much present in the locality, as he deposed that on his expressing suspicion against the accused, the persons residing in the chawl and his neighbour apprehended the accused and handed over him to police. They had beaten the accused. This fact again goes to show that the accused was very much present in the locality and he has not made any attempt to abscond. Till midnight of 24/12/2009 i.e. lodging of missing report, nothing unusual was noticed or heard by P.W. No. 2 against the accused to remotely connect him with commission of offence of rape and murder of his daughter. Only after the dead body of the deceased was recovered on 25/12/2009, the accused was apprehended and beaten and then taken to police station by the people from the locality, on the basis of suspicion expressed by father of deceased (PW 2). There is no iota of evidence that accused was seen going towards firing range ground with victim girl on and after 8.30 p.m. of 24/12/2009 or he was seen with the deceased nearby to place where dead body of deceased was recovered. We are, therefore, of the view that the prosecution could not establish the link between accused and recovery of dead body of deceased from firing range ground. So also no circumstance of last seen together established by prosecution to establish the complicity of accused in commission of offence.

It is pertinent to note that as per the case of the prosecution, the girl had left her house at about 8.00 p.m. for playing with her friends. The deceased was very much seen present in a lane outside the house till 8.30 p.m. The victim girl was found to be missing by her family members sometime after 8.30 p.m. and before 9.30 p.m. The father of the victim girl (PW 2) met with the accused at 9.30 p.m. in the locality itself. At that time, he found nothing unusual from the conduct of accused. He again met with accused at 11.00 p.m. at his residence. At that time also, the father of the victim girl; did not notice anything unusual from the conduct of the accused. It has come on record that the firing range ground is big ground of about 4 to 5 kilometers in area and isolated place located at the extreme end of the locality. It has also come on record through the evidence of P.W. No. 8, that there were number of houses on the way going towards firing range ground. The people from the locality usually sits outside their houses. It has come on record that it takes about 20 minutes from the locality to reach the firing range ground from where the dead body of the deceased was recovered. We have already discussed in the forgoing paras the evidence of Dr. Sadhana Thorat (PW 13) and Dr. Madhukar Shinde (PW 14) that victim girl was brutally raped and murdered. The penetration was so forceful that it has created common passage connecting the vagina and anus. The girl was strangulated. The existence of ligature mark reveals that the deceased was strangulated either by using the rope or some cloth. The fracture injury to the skull and the blood on the big stone and the small stones surrounding the deceased suggestive of fact that the head of the deceased might have been banged against stone or hit by stone. The profused bleeding was noticed from the spot. If we consider the probable time of commission of act of rape to be occurred after the girl was found to be missing on and after 8.30 p.m., then it is highly improbable for an accused to have committed such brutal act with in a span of 30 to 40 minutes, the girl was found to be missing. If we consider the distance between the locality and place of incident to be walkable distance of about 20 minutes, then about 40 minutes required for any person visiting the place from the locality and to come back from that place. We have already discussed that accused was very much present in the locality at 9.30 p.m. This fact is established through none else than the father of victim girl. It is, therefore, difficult to accept the case of prosecution that in such short span the accused had taken the missing girl to firing range ground, committed vaginal and carnal intercourse with her and then caused her death by strangulation as well as by banging her head over the stone or by hitting her head by stone. All these circumstances brought on record itself rules out the complicity of accused in commission of offence. At 9.30 p.m. as well as 11.00 p.m., nothing unusual was seen from the physical appearance as well as the position of clothes of accused by the father of the victim girl. So also, it is difficult to believe that on and after 9.30 p.m., when the family members and large number of persons from the locality were searching the missing girl, the accused might have taken the victim girl to firing range ground and committed the act of rape and murder.

The medical examination of accused was conducted on 25/12/2009 by Dr. Sadhana Thorat (PW 13) and Dr. Shinde (PW 14). As per the evidence of both these witnesses, the vaginal penetration as well as the attempted act of carnal sexual intercourse committed with victim girl was so forceful that the vagina was found to be torn up to anus and white colour fluid (suspected semen) was found spread from vagina up to anus. Both these witnesses have admitted that looking to the tender age of the victim girl i.e. about 8 years, there is every possibility of existence of injuries over the private part of the offender. The medical examination of accused has revealed that no injuries were found on the private part of the accused. There is no other corroborative evidence strong enough brought on record by the prosecution to establish the complicity of accused in commission of offence. We are, therefore of the view that the mere fact established by the prosecution that accused seen present in the lane outside the house of accused and deceased at 8.30 p.m. cannot be accepted as an incriminating circumstance of ''last seen together'' to establish the complicity of accused in commission of offence.

The very presence of accused in the locality immediately after the deceased was found to be missing as well as when the body of deceased was recovered at the firing range ground in itself a conduct which establishes the innocence of the accused and leads to draw strong inference that there is every possibility that act in question might have been committed by person other than accused. Thus, the evidence on record as adduced by the prosecution noway establishes that none else then accused had committed an act in question.

It is pertinent to note that the prosecution has not established the probable time at which the deceased was raped and murdered. Although the prosecution has examined Dr. Sadhana Thorat (PW 13) and Dr. Madhukar Shinde (PW 14) who conducted the autopsy on the dead body of deceased, they have not deposed anything as to probable time of death of deceased. On the contrary, in the cross-examination, Dr. Thorat has admitted in cross-examination that in the postmortem report (Exh. 62) she has not mentioned colour of contusion, therefore she is unable to tell the age of the injury i.e. the contusion. In the postmortem report (Exh. 62) the column in respect of the probable time of the death of the deceased has been left blank. The prosecution has adduced no evidence to establish the probable time of the death of the deceased. Absence of evidence as to probable time of rape and murder of deceased itself fatal to the case of the prosecution. In a case based upon the circumstantial evidence wherein the prosecution has relied the circumstance of last seen together, the proximity of time at which the deceased and accused were last seen together and the time at which the deceased was found to be dead plays a very significant role. This vital piece of evidence is lacking in the case. We have already discussed in forgoing paras that the deceased was found to be missing sometime in between 8.30 p.m. to 9.30 p.m. The father of the victim girl who was searching the victim girl in the locality at about 9.30 p.m. met the accused. This fact leads to draw inference that the girl might have been found missing in between 9.00 p.m. to 9.30 p.m. The place where the dead body of the deceased was found to be located at a distance of 20 minutes walkable distance from the place where the appellant/accused and deceased were allegedly seen together. If we consider the fact that it takes about 20 minutes to visit the place where the incident had occurred and further if we consider the fact that some time was required for a person to come back, then it rules out the possibility that accused had taken the victim girl to firing range ground and then raped and caused her murder and then came back to his house before 9.30 p.m. So also, the fact that the father of the victim girl and the people from the locality were searching the victim girl up to midnight and accused was found at his house at 11.00 p.m. by the father of victim girl again rules out the culpability of accused in commission of offence during late night. The conduct of the appellant/accused was found to be normal at 9.30 p.m. as well as 11.00 p.m. as per own version of father of the victim girl. Nothing unusual was noticed to suspect against the accused by P.W. No. 2 when he met the accused at 9.30 p.m. as well as 11.30 p.m. In absence of probable time at which the deceased died, it is unfair to connect accused with such serious crime of rape and murder of a minor girl that too merely on the basis of suspicion expressed against him by the father of the victim girl. There appears no strong basis to have raised such suspicion against the accused. On 24/12/2009 till midnight the father of the deceased had not suspected any role of accused in enticing and kidnapping of his daughter.

It is a well settled position in law that in a criminal trial the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of defence. It is also settled position in law that where there is any infirmity or lacunae in the prosecution case, the same cannot be cured or supplied by a false defence or a plea which is not accepted by a court. It is always to be borne in mind that in a case based upon circumstantial evidence, if two views are possible on the basis of evidence on record, one pointing to the guilt of the accused and other innocence, the accused is entitled to have the benefit of one which is favourable to him. In this context the learned advocate for the appellant has rightly placed reliance on the judgment of Apex Court in the case of Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, In para. 17 of the judgment, the Apex Court has observed as under:

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 ''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. In such cases, while keeping in mind the distance between ''may be'' true and ''must be'' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.

The learned counsel for appellant further relied on the judgment of Apex Court in the case of Malleshappa Vs. State of Karnataka, wherein the Apex Curt has held that in a case based upon the theory of last seen together mere non-explanation of any circumstance appearing against accused and even false defence taken by the accused not sufficient to convict the accused in view of settled law that prosecution has to stand on it''s own leg in order to prove the offence against the accused. The Apex court has held that the circumstance of last seen together does not by itself and necessarily lead to interference that it was accused who committed the crime.

In a case based upon circumstantial evidence, there is always danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of circumstantial nature, the circumstance from which the conclusion of guilt is to be drawn, should be in first instance be fully established and all the facts so established, should be consistent only with the hypothesis of the guilt of the accused.

Thus, on considering the evidence in it''s totality, we are of the view that the prosecution has utterly failed to establish the complicity of accused in commission of offence, on the basis of the circumstance relied that accused was seen with the deceased at about 8.30 p.m. on 24/12/2009 in the locality. In fact circumstance so relied in itself cannot be treated as incriminating circumstance to form the basis to establish the complicity of accused in commission of offence. The evidence as discussed in forgoing paras as to the presence of accused at 9.30 p.m. and 11.00 p.m. in the locality as well as in his house itself act as a strong circumstance to establish the innocence of accused in alleged act of rape and murder of the deceased.

The reasons and findings recorded by the learned Additional Session Judge on this aspect found to be perverse as based on improper appreciation of evidence on record. The courts of law are expected to decide the case on the basis of evidence before the Court. There is no scope for moral conviction in the administration of criminal justice. The learned Additional Session Judge has failed to take into account the relevance of the proximity of time between the alleged time of missing of deceased-victim girl and probable time of death of the deceased. We have discussed in the forgoing paras the precedents of law which has consistently laid down the principles that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead, is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. Where there is a long gap between time at which the deceased found to be dead and possibility of other person coming in between exists, the theory of last seen together cannot apply. In absence of any positive evidence to conclude that the accused and deceased were last seen together, it would be hazardous to come to the conclusion of guilt of the accused. The Apex Court in the case of Mousam Singha Roy and Others Vs. State of West Bengal, has observed as under:

The Supreme Court is not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like murder goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is the settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.

Thus on close scrutiny of the evidence on record, we have no hesitation to record that the circumstance as relied by the prosecution i.e. the theory of last seen together cannot be applied in the present case and presence of accused at 8.30 p.m. in the locality where the deceased was playing cannot form basis to convict the appellant.

The next circumstance relied by the prosecution is the recovery of coupons of canteen of the company where the accused was working, found at the place of incidence and similar coupons were found in pocket of shirt of accused at the time of his personal search. In order to establish this circumstance, the prosecution has relied upon the testimonies of Umeshkumar Gound (PW 1)-witness to spot-cum-seizure panchanama (Exh. 10), Radhakrishna Chenappa Shetti (PW 3)-the manager of canteen situated at Indian Smelting and Refining Company Limited, where the accused employed through Contractor, Satishchandra Madhusudan Pathak (PW 9)-the panch witness to panchanama in respect of arrest of accused (Exh. 31) and Harish Rao (PW 11)-the person working with Indian Smelting and Refining Company Limited. The five canteen coupons allegedly found from the spot have been produced in evidence as Article H (Exh. 18) and 14 canteen coupons which were allegedly found from the pocket of the shirt of the accused are produced at Exh. 19.

Prosecution has examined Umeshkumar Gound (PW 1)-the panch witness to spot-cum-seizure panchanama (Exh. 10). His testimony is at Exh. 9. He has deposed that on 25/12/2009 on the request made, he acted as a panch witness to panchanama carried out at firing range ground located towards north of the slum. He deposed that the dead body of the victim girl was lying on the spot. There were injuries over her head and face. In his presence, police seized the blood mixed earth, simple earth, underwear of the deceased and then made panchanama. He has further deposed that Shrikrishna Yadav was another panch witness, who was present along with him. It appears from record that after recess, when further examination-in-chief of P.W. No. 1 was recorded, he has deposed the existence of five coupons of canteen (Article H) lying on the spot and seizure of same by police. In the cross-examination, he has admitted that he was knowing the father of the deceased since last eight years and the father of deceased is his friend as well he is his neighbour. He has further deposed that father of the deceased girl and another panch witness-Shrikrishna Yadav are his neighbours. He has deposed that when he reached on the spot, number of persons were already present on the spot. There were about 80 persons gathered at the place of the incidence who might have gathered at that place about half an hour prior to his arrival. He has categorically admitted that the coupons (Article H) do not bears any coupon numbers and any person serving in the Company can possess coupons like Article H (Exh. 18). He has also admitted that the possibility of coupons (Article H) might have fallen from the pocket of the persons gathered on the spot cannot be ruled out. He has admitted that persons cannot hit a person single-handedly with stone (Article A), he has further admitted that during the night time the place of incidence remains isolated. Thus, if we consider the testimony of P.W. No. 1, then the witness has admitted that he was knowing the father of the deceased since last eight years and the father of deceased was his friend. He has also admitted that the coupons which were seized were not bearing any serial number and distinctive marks of identification and similar coupons can be possessed by other employees of the Company. He has also admitted that the possibility of such coupons being fallen from the pocket of people gathered on the spot cannot be ruled out.

Prosecution has examined Radhakrishna Chenappa Shetti (PW 3) whose sister was running canteen in Indian Smelting and Refining Company Limited where the accused was working through Contractor. His testimony is at Exh. 17. He has deposed that on 26/12/2009, police visited his canteen which stands in the name of his sister as Contractor and demanded the register of issuance of coupons. Police had obtained the xerox copies of some of the pages of the register. At the time of his visit to Police Station, the police had shown him some coupons which were issued from his canteen. In the examination-in-chief itself he has stated that he do not remember the number of coupons shown to him by police and when those coupons were issued. Although this witness has deposed that the coupons were issued in the name of Chandrashekhar, but, in his examination-in-chief itself, he has deposed that he do not know the accused before the Court.

In the cross-examination, the aforesaid witness has deposed that there were about 100 to 150 workers employed in the company and most of them obtained such coupons from the canteen. He has categorically admitted that the coupons issued from the canteen does not bear the name of the person to whom those were issued. The coupons also not bears any serial numbers. He has categorically admitted that he is unable to say to whom the coupons-Exh. 18 i.e. Article H and coupons - Exh. 19 (allegedly shown to be recovered during personal search of the accused) were issued out of the workers who obtained the coupons from the canteen. He has further admitted that the workers can exchange the coupons amongst themselves as the coupons does not bear the name of the worker. He has further admitted that the coupons can be carried by the workers out of the factory as well to their home. He has further admitted that the similar coupons as that of Exh. 18 and 19 were issued to old workers as well as newly employed workers. He has admitted that in the register (Article J) the names of workers who purchased the coupons and number of coupons issued to such workers have not been recorded. He has also admitted that there may be more than one person by name Chandrashekhar working in the Company. He has admitted that he is unable to say that the coupons (Exh. 18 and 19) were issued to the person by name Chandrashekhar only. He has further deposed that he is unable to tell the exact date, month and year of issuance of coupon (Exh. 18 and 19). He has further deposed that he is unable to say as to whether the entry in respect of issuance of coupons (Exh. 18 and 19) reflected in the register (Article J).

Thus, if we consider the testimony of P.W. No. 3, then it noway establishes the link between the accused and the coupons allegedly recovered from spot. The coupons are not bearing any serial numbers or any distinctive marks of identification. So also the name of the persons to whom the coupons were sold is not mentioned on the coupons relied as evidence to prove complicity of accused in commission of offence. There is no evidence to show that these coupons allegedly recovered from spot were issued to accused. The said witness has not identified the accused as a person to whom the alleged coupons were issued. The witness has deposed that in the register there is entry of sale of coupons to one Chandrashekhar. However, he has failed to identify the accused as a person to whom the coupons were issued. He has further admitted that there may be more than one person by name Chandrasekhar working in the Company. Thus, the testimony of P.W. No. 3 is noway help the prosecution to establish the circumstance of recovery of coupons from the spot and personal search of accused, so as to connect him with the offence. It is pertinent to note that in the arrest panchanama the recovery of coupons is shown from the pocket of the shirt of the accused and it is mentioned that the coupons (Exh. 19) were lying stapled. Whereas the coupons i.e. Exh. 18 (Articles H) were lying to be in loose and scattered condition near the dead body of the deceased. It is very difficult to believe that five coupons (i.e. the small piece of printed paper), which were fallen from the shirt of culprit, remain on the spot for hours together. Therefore, the possibility of such coupons being fallen on the spot from the pocket of person gathered on the spot cannot be ruled out under the facts and circumstances of the case. Otherwise also in absence of any evidence adduced by the prosecution to show that those coupons were sold to accused, the recovery of coupons is of no relevance to establish the complicity of accused in commission of offence. In view of this evidence, we are of the view that alleged recovery of coupons of canteen cannot be treated as an incriminating circumstance to connect the appellant/accused with commission of offence.

Prosecution has examined Satishchandra Pathak (PW 9)-the panch witness to arrest panchanama (Exh. 51) to prove the alleged recovery of 14 coupons from the pocket of shirt of accused. His testimony is at Exh. 50. He has deposed that on 25/12/2009, he has acted as panch witness for arrest of accused in Police Station. During the personal search of the clothes of accused 14 coupons of the canteen of Indian Smelting and Refining Company Limited were found in the pocket of his shirt. In the cross-examination, he has admitted that he is on visiting terms with the father of the deceased. He has also admitted that the girl was found to be missing at 8.30 p.m. He has further deposed that the incident took place at 8.30 p.m. and he was also searching for the victim girl since the night of 24/12/2009. He has further deposed that 100 to 150 persons from locality were searching the girl. He has deposed that he do not know at what time the accused was brought to Police Station and who brought the accused. He has further deposed that he is unable to state which clothes accused was wearing when he was brought to the police station. In the cross-examination, he has admitted that the coupons (Exh. 19) were stapled at the time of it''s seizure. Thus, if we consider the testimony of P.W. No. 9 in the light of cross-examination, then the alleged recovery of coupons is relevant to connect the appellant with the commission of offence. Canteen coupons which were found from pocket of his shirt found to be stapled. The accused was not arrested from the spot of incident. The personal search of the accused was taken at Police Station. The coupons at Exh. 19 reflects that they are not bearing any serial numbers, the name of the person to whom same were issued or any other distinctive mark so as to connect the appellant/accused with the alleged recovery of coupons recovered from the spot. We are, therefore, of the view that the circumstance of alleged recovery of coupons noway establishes the complicity of accused in commission of offence. For these reasons also, the reasons and findings recorded by the learned Additional Session Judge are not sustainable in law.

It is pertinent to note that the learned Additional Session Judge though observed in the judgment (Para. 25) that the evidence adduced by the prosecution does not lead to conclusion that the five coupons (Exh. 18) found at the place of incident were issued to accused only, still, the learned Additional Session Judge while recording the conclusion (Para. 48) treated the recovery of canteen coupons from the spot as one of the incriminating circumstance leading to conclusion of guilt of accused in commission of offence of rape and murder of deceased. This inconsistencies itself make out a case of improper appreciation of evidence on the part of the learned Additional Session Judge and recording of finding of guilt against the accused. We are, therefore, of the view that prosecution could not establish any link between the recovery of coupons and involvement of accused in commission of offence. The reasons and findings recorded in this behalf by the learned Judge appears to be based upon improper appreciation of evidence on record and hence not sustainable in law.

The next incriminating circumstance relied by the prosecution is in respect of existence of nail marks on the dorsal aspect of both the forearm, neck and mandible area of the accused. In order to establish this circumstance, the prosecution has relied upon the evidence of Dr. Sadhana Thorat (PW 13) and report of medical examination of accused (Exh. 61). She has deposed that on 25/12/2009 at about 6.15 p.m., the accused was brought before her for collection of semen and blood sample, nail clippings as well as medical examination of injuries on the person of accused. On medical examination of accused, she found multiple abrasions of nails over dorsal aspect of both the forearms, left thumb, left side of the neck and mandible region. Each of the abrasion was measuring about 1/4 c.m. She has opined that the age of injuries was between 24 to 48 hours. She has further deposed that the sexual characters of accused were found to be well developed and there was nothing to suggest that he was unable to perform sexual intercourse. She has deposed that the certificate (Exh. 61) was issued under her signature. She has produced the copy of MLC register for perusal of the Court. P.W. No. 13 has further deposed that the nail injuries are possible while resisting the rape upon a person.

The learned counsel for the accused has cross-examined the witness at length. In the cross-examination P.W. No. 13 has admitted that in a Medico Legal Case, the examination of the subject (i.e. person) is important for giving guidelines to the investigation depending upon the history. She has further admitted that normally when the patient is conscious and there are injuries on his person, history of the injuries is asked to such person. She has further deposed that she has not asked the accused as to how he sustained injuries. She did not feel it necessary to ask the history to accused. She has admitted that it is necessary to mention in the injury certificate as to on which part of the body the injury is found. She has further admitted that it is necessary to mention the nature of injury and size of injury in the injury certificate. She has deposed that certificate (Exh. 61) was issued by her in response to query made by the police officer. She has admitted that in the injury certificate-Exh. 61, she has not mentioned as to on which part of the body the injuries were found. She has offered explanation that as police has not asked her to state on which part of the body, the injuries were found, she has therefore, not mentioned in certificate-Exh. 61, the location of injuries.

In her further cross-examination P.W. No. 13 has admitted that the person doing labour work may sustain abrasion depending upon his nature of work. She has categorically admitted that in the event if person is assaulted and beaten by the mob of persons, the person may sustain abrasions or nail marks. She has further admitted that if a person caught hold by hand on his forearm by force, the nail marks may appear on his forearm. The witness has further admitted that on examination of the private part of the accused, she did not find any injuries on his private part. She has further admitted that in the event of rape is committed on a girl of tender age of 9 to 10 years, the injuries on the private part of the offender are possible. She has further deposed that the injuries which she has mentioned in certificate-Exh. 61 would have occurred between about 6.15 p.m. of 23/12/2009 to 6.15 p.m. of 24/12/2009. She has farther admitted that till 02/01/2012 no one from Vartaknagar Police Station approached and had asked for injury certificate in respect of injuries on the person of accused. She has further admitted that semen is discharged during night fall by male person and the night fall is a normal thing that occurs in male person. She has admitted that due to night fall, the semen appears on the undergarment of the person. She has categorically admitted that night fall is a common thing in common man. In her further cross-examination, the witness has admitted that if person is educated then his signature is obtained on MLC register, otherwise his thumb impression is obtained. She has admitted that the signature appearing on the register of annexure to Exh. 61 is of police constable, who brought the patient. She has admitted that in annexure to Exh. 61, she has initially written the past history as "NAD" 1 (i.e. Not detected abnormality), which was cancelled by her. She has admitted that in a case of sexual offence of rape there is every possibility of existence of vaginal fluid on the person of offender. She has further deposed that the off white colour fluid which was noticed on the private part of the victim girl was preserved and vaginal swab was obtained. She has deposed that the fluid which was found on the private part of the victim girl may be suspected semen.

P.W. No. 13 has deposed in her cross-examination that the ligature marks which are normally caused due to rope or similar object. She has categorically deposed that in the present case, the rope or piece of cloth may have been used for strangulation. She has categorically admitted that in the present case the ligature marks mentioned in the postmortem are not possible due to strangulation by hand. She has further admitted that as she has not mentioned in postmortem report the colour of the contusion found on the body from the body of the deceased, now it is not possible for her to tell the age of contusion. She has admitted that as there was a heavy loss of blood of the victim, while inflicting injuries as referred in Column No. 17 of the postmortem report (Exh. 62), there is every possibility of existence of blood stains on the clothes of assailant.

Prosecution has examined Dr. Madhukar Shinde (PW 14)-the gynaecologist who was also present at the time of postmortem of dead body of the deceased girl and assisted Dr. Sadhana Thorat (PW 13) to conduct the autopsy of victim girt. He has deposed that he has examined the dead body of the accused for the purpose of gynaecological examination. He has deposed that on examination of the dead body of the deceased, he noticed bleeding in vagina, and found abrasions on the part of the deceased. The vagina was torn up to anus. He has deposed that he noticed white colour fluid spread from vagina up to anus. He has categorically deposed that the torn of the vagina was due to forceful sexual intercourse attempted upon deceased. In the cross-examination, the witness has admitted that in the case of forceful intercourse blood stains and vaginal fluid may appear on the person of the offender. Although, P.W. No. 14 has denied the suggestion that in such cases there must be injuries on the private part of the offender, but admitted that injuries on the private part of the offender are possible.

Mr. Kavale-the counsel for the appellant by referring the testimony of P.W. No. 13 and 14 and more particularly the material/evidence brought through their cross-examinations vehemently contended that there is no cogent, convincing and reliable evidence adduced by the prosecution to establish the circumstance that the injuries which were found on the accused were caused while committing rape and murder of the deceased and same can be treated as incriminating circumstance of guilt of accused. He has pointed out that no certificate of injury was secured and produced along with the charge sheet by the prosecution for the period of more than two years of the incident. Dr. Thorat (PW 13) admitted in her cross-examination that till 02/01/2012, no one from Police Station, Vartaknagar approached her for obtaining injury certificate. He has submitted that the certificate produced at Exh. 61 appears to be issued on 08/01/2010 that too in response to the query made by police as per letter dated 02/01/2010. He has pointed out that in the certificate produced vide Exh. 61, there is no mention of nature of injuries, the parts of the body on which injuries were found, the dimensions of the injuries detected after examination of accused. In the certificate at Exh. 61, it is only mentioned that primary, secondary sexual character and genitals are well developed, hence, there is nothing to suggest that he is unable to perform sexual intercourse and further it is mentioned that injuries due to nails and age of the injuries between 24 to 48 hours. The time of examination of accused is mentioned as 6.15 p.m. The learned counsel has, therefore, submitted that the prosecution has first time come out with the case of existence of multiple injuries on the dorsal aspect of the forearm, thumb, neck and mandible at the time of recording of the evidence of prosecution witness. He has further submitted that there is no signature of accused on the MLC register on which the alleged noting has been made about the examination of the accused. He has also pointed out that in the MLC papers produced by P.W. No. 13 at the time of her evidence, overwriting is visible and certain words appears to have been scored out. He has further pointed out some of the words appears to have been later on introduced in the MLC papers produced as Annexure to Exh. 61. The corrections are not initialed nor date of making such changes has mentioned. It is also not mentioned the name of the person whose thumb impression was obtained on the MLC certificate. He has, therefore, submitted that it is not desirable for the Court to place reliance upon such evidence produced at the fag end of the trial in a serious case relating to offence of rape and murder.

The learned counsel has further pointed out that Dr. Sadhana Thorat (PW 13) has categorically stated in her examination-in-chief that the age of the injuries was about 24 to 48 hours. In the cross-examination, the said witness has categorically deposed that the injuries found on the person of the accused would have been occurred in between 6.15 p.m. of 23/12/2009 to 6.15 p.m. of 24/12/2009. By relying on this evidence, the learned counsel has pointed out that this evidence itself establishes that the injuries which were found on the body of the accused were not caused during alleged act of rape and murder of deceased for the sole reason that the girl itself found missing after 8.30 p.m. of 24/12/2009. The learned counsel has further pointed out that as per the testimony of Rajeshkumar (PW 2)-the father of the victim girl, he met with accused on 24/12/2009 at 9.30 p.m. as well at 11.00 p.m. while he was searching his missing daughter. He had a talk with him for abut two minutes. During his talk with the accused, he found nothing abnormal from his appearance. The accused was very much present in the locality, when P.W. No. 2 met him on 24/12/2009. He has categorically admitted in the cross-examination that he did not notice anything unusual from appearance and conduct of accused. So also, till visiting police station and reporting about missing of his daughter in the late midnight he had no suspicion against the accused. The learned counsel has further pointed out that P.W. No. 2 has categorically admitted in the cross-examination that on 25/12/2009 at about 10.00 a.m. he got the knowledge that police arrested accused for murder of his daughter. He has categorically admitted that person residing in the chawl and neighbours apprehended the accused and handed over him to police. He has admitted in the cross-examination that he himself and persons from the locality had grave anger against the accused and the public had beaten the accused. He has further deposed that as he had shown suspicion against the accused, the people from the locality caught hold of the accused and the mob beat the accused before taking him to police station. By referring this evidence, the learned counsel has submitted that the evidence on record clearly spells out that accused was caught and was beaten up by the people from the locality and they themselves took accused to police station and handed over him to police.

The learned counsel has further pointed out that prosecution has examined Satishchandra Pathak (PW 9)-the panch witness to arrest-cumseizure panchanama in respect of arrest of accused (Exh. 51) made in the police station. P.W. No. 9 has deposed that on 25/12/2009, he was called at police station and in his presence the police had taken search of the clothes of the accused. At the time of arrest of accused he noticed some blood stains on the hips, legs and pant of accused. The pant which the accused was wearing was stained with blood and mud at the side of hip and legs and there were blood stains over it. He has further deposed that 4th button from the bottom of his shirt was missing. There were abrasions over the cheek, neck and forearms of the accused. The accused was wearing blue colour underwear on which there were stains of blood and semen. The learned counsel for appellant has pointed out that in cross-examination the witness has deposed that he is unable to tell the time at which the accused was brought to police station and what clothes the accused was wearing when he was brought to police station. It is further pointed out that in the panchanama (Exh. 51) it is mentioned that the scratch marks were seen on left side of the cheek, neck and hands of accused.

By referring the testimony of P.W. No. 2, the learned counsel for appellant has pointed out that as per the version of P.W. No. 2, the accused was caught, beaten and taken to police station by the people from the locality. Whereas, P.I.-Jagtap (PW 16)-the Investigating Officer has given altogether different version of arrest of accused. P.I.-Jagtap has deposed that he had sent the team of police personnel in search of accused and API-Tombe (PW 17) produced the accused at 3.15 p.m. in police station and then the accused was arrested. It is pointed out that in the cross-examination, P.W. No. 16 has admitted that no panchanama of arrest was made at the place where the accused was arrested. P.W. No. 16 has admitted that he has no personal knowledge as to physical condition of accused as he was apprehended by P.S.I.-Thombare. The learned counsel has pointed out that P.S.I.-Tombe (PW 17) has given altogether different story about the arrest of the accused. P.S.I.-Tombe (PW 17) deposed that while they were searching the accused, the accused was found sitting behind a tree near the hillock known as Mama Bhanje Dongar and from that place he brought accused to police station. He has admitted in the cross-examination that he has not made panchanama of the place where accused was found. By referring the testimony of these three witnesses, the learned counsel has argued that the false and concocted story has been cooked by the Investigating Officer that accused was absconding and he was arrested from the place nearby to firing range ground. He has submitted that there is no reason to disbelieve the testimony of P.W. No. 2-the father of the victim girl that accused was caught, manhandled and beaten by the mob from the locality and handed over to police at about 10.00 a.m. It is pointed out that the position of clothes and physical condition of an accused as reflected in the panchanama (Exh. 51) clearly reveals that accused was beaten by the mob before he was produced at police station. It is, therefore, contended that the injuries on the person of accused cannot be treated as incriminating circumstance or provides link in commission of offence.

On the other hand, the learned APP for the State has submitted that the testimony of P.W. No. 2 cannot be relied as the facts deposed by him are not based upon his personal knowledge, but same are based upon what he has heard from the other persons. In nutshell, it is contended that the facts deposed by P.W. No. 2 that the accused was apprehended by the people from the locality and he was assaulted before taking to police station, is a hear-say evidence and same cannot be taken into consideration.

We have already discussed in the foregoing paras that the prosecution could not established the circumstance of last seen together as incriminating circumstance to be relied against the accused. We have also observed that the presence of accused at about 8.30 p.m. in the lane outside the house of accused and deceased cannot be treated as a circumstance of last seen together to establish complicity of accused in commission of offence of rape and murder of deceased. According to us, the testimony of P.W. No. 2 cannot be treated as hear-say evidence. The learned counsel has rightly pointed out that P.W. No. 2 had met accused at 9.30 p.m. and 11.00 p.m. on 24/12/2009 and inquired about his missing girl while he was searching his daughter. P.W. No. 2 has admitted in his cross-examination that when he met accused he has not noticed anything abnormal from the conduct of the accused as well as from the clothes of accused. If the accused would have committed such act of rape and murder and the position reflected panchanama (Exh. 51) would have existed at 9.30 p.m. or 11.00 p.m. on 24/12/2009, then same could not have been gone unnoticed by the father of the victim girl (PW 2), as well as the persons in the locality, who were searching the missing girl. The existence of injuries over cheek, neck, forearm, the existence of blood on the shirt and pant of the accused also could not have gone unnoticed by P.W. No. 2 as well as other persons from the locality on 24/12/2009 at 9.30 p.m. as well as 11.00 p.m. It is, nowhere the case of the prosecution that the act of rape and murder was committed after 11.00 p.m. We have already discussed in foregoing paras the evidence of Dr. Thorat (PW 13). She has admitted in the cross-examination that the injuries which were found on the body of the accused are possible if the person is caught with hand and beaten by the mob. P.W. No. 13 has deposed that the injuries on the body of the accused were caused prior to 6.15 p.m. of 24/12/2009. It is, therefore, not proper to link the injuries on the person of accused with commission of rape and murder of the deceased. The position reflected in the panchanama (Exh. 51) as to clothes and condition of accused as well as missing of 4th button from the bottom of his shirt leads us to accept the submission of the learned counsel for the appellant that the injuries found on the body of accused were possible due to the beating of accused by the mob, who caught, beaten and taken him to police station as established through testimony of Rajeshkumar (PW 2)-the father of victim girl.

It is pertinent to note that in C.A. report (Exh. 78) pertaining to analysis of pubic hairs, nail clippings of the accused, it is mentioned that no semen as well as blood was detected on the pubic hair of accused. So also, in the nail clippings of accused, no blood was detected. As per C.A. Report (Exh. 78), the blood group of accused was detected as that of Group ''A''. As per the testimony of Dr. Thorat (PW 13) and Dr. Shinde (PW 14), there was profused bleeding from the injuries over the body of the deceased including her private part. No injuries were found on the private part of the accused. As per the testimony of said witnesses, if the minor girl of eight to nine years old is subjected to such forcible sexual intercourse, there is every possibility of injuries being caused to private part of the offender. As per the testimony of both the witnesses and postmortem report (Exh. 62), there was vaginal intercourse as well as attempt to make carnal intercourse. No injury was found on the private part of the accused. Had the accused would have been involved in the act of rape on victim girl, then certainly the blood and the spermatozoa ought to have detected on the pubic hair of accused. Dr. Thorat (PW 13) as well as Dr. Shinde (PW 14) have deposed that white colour fluid was noticed on the private part of the deceased. The vaginal swab, nail clippings, anal swab and hair of victim girl as well as her blood was sent for examination of Chemical Analyzer. As per report of Chemical Analyzer at Exh. 77, no semen detected on the vaginal and anal swab of deceased sent for analysis. The blood of the deceased was found to be of blood group ''B''. In the hair and nail clipping of the deceased, the human blood was detected. However, the blood group could not be determined. Thus, there are no positive findings that in the nail clippings of the deceased, the blood of group ''A'' as that of accused was detected.

It is evident from the spot panchanama (Exh. 10) and inquest panchanama (Exh. 47) that there was a profused bleeding from the body of the deceased. The blood was found to be collected on the ground where the body of deceased was lying. The hands of the deceased were found to be smeared with blood. We are, therefore, of the view that mere detection of human blood (the blood group of which could not be determined) in the nail clippings of deceased cannot be treated as an incriminating circumstance to rope in accused with commission of offence. While appreciating the evidence and recording the finding of guilt against the accused, the learned Additional Session Judge has completely ignored this material evidence.

It is pertinent to note that the victim girl was of tender age i.e. 8 to 9 years old. As per the gynaecological examination of the victim girl the vagina of the victim girl was found with torn hymen. So also, parietal contusion seen reddish in colour, circular around the whole anus opening. Whole tear like external genital to anus, stained with blood and off-white colour fluid. Dr. Shinde (PW 14)-a gynaecologist has categorically deposed that the vagina was torn up to anus and same was due to attempted forceful sexual intercourse. He has further opined that forceful sexual intercourse was attempted upon the deceased. In the cross-examination, he has admitted that in forceful intercourse, the blood stains and vaginal fluid may appear on the offender and there is possibility of injuries on the private part of the offender. Dr. Thorat (PW 13) has deposed in her cross-examination that she did not find any injuries on the private part of the accused during the course of his medical examination. In the facts and circumstances of the case and taking into consideration the fact that the offender has committed an act of sexual intercourse in such a brutal manner that the vagina of the deceased was torn up to anus and not only he made penetration from vagina but also attempted to penetrate his penis from the anus of victim girl, there is every possibility that some injuries may be caused to the penis of the offender. Had the accused would have committed such act of rape and sodomy, then in all probabilities some injuries or at least swelling ought to have been noticed on the private part of the accused during his medical examination. Dr. Thorat (PW 13) has categorically stated that no injury was noticed on the private part of the accused. She has further admitted in her cross-examination that the injuries which were found on the body of the accused were possible due to beating by the mob. In view of this evidence on record, we are of the view that through the evidence of P.W. Nos. 13 and 14, the defence has brought on record the probability to accept the case of the defence that the injuries which were found on the body of the accused are possible due to beating at the hands of mob which apprehended, manhandled and had beaten the accused before taken him to police station. The arrest panchanama (Exh. 51) supports the contention of the defence. The learned counsel for the appellant has relied upon the ruling in the case of Rahim Beg and Another Vs. State of U.P., in support of his contention that under given facts and circumstances of the case, the absence of injuries on the male organ of the accused establishes his innocence. In our view, the ruling cited by the learned counsel have square applicability to the facts of the present case.

The another circumstance relied by prosecution that accused has not offered any explanation in his statement recorded u/s. 313 of Cr.P.C. as to injuries found on his person. In our view, mere non-explanation of injuries on the person of accused in his statement recorded u/s. 313 of Cr.P.C. is noway establishes any circumstance to establish the complicity of accused in commission of offence. We have already discussed in the foregoing paras that through the cross-examination of prosecution witnesses, the defence has brought on record ample material to explain the injuries found on the body of the accused so as to negate the circumstance relied by the prosecution to establish the culpability of accused in commission of offence. It is settled position in law that the statement recorded u/s. 313 of Cr.P.C. cannot be read as a substantive evidence. The evidence brought through the cross-examination stands on higher footing than the explanation if any offered by an accused in his statement recorded u/s. 313 of Cr.P.C. The learned counsel for the appellant has relied upon the judgment of the Apex Court in the case of Malleshappa Vs. State of Karnataka, wherein, the Apex Court has held that non-explanation of circumstance not necessarily leads to draw an interference that it was the accused who alone has committed the crime. On the other hand, the learned APP for the State in support of her submission relied upon the judgment of Apex Court in the case of Brajendrasingh Vs. State of Madhya Pradesh, , Rohtash Kumar Vs. State of Haryana, and Geetha vs. State of Karnataka reported in (2010) 10 SCC 72.

We have thoroughly considered the rulings relied by the learned APP for the State as well as the learned counsel for the appellant. We have already discussed in forgoing paras that by way of cross-examination, the defence has brought on record that accused was caught, manhandled and beaten by the mob/people from the locality and then taken to police station. We have also discussed in the forgoing paras the material evidence brought on record through cross-examination by the defence. Dr. Thorat (PW 13) has admitted in her cross-examination that the injuries which were found on the body of the accused are possible due to accused being caught, beaten by the mob. It is also brought on record through the cross-examination of P.W. No. 13 that the injuries which were noticed on the part of the body of the accused may be even prior to when the girl was found missing. There is evidence on record to show that after the girl was found missing, the accused was very much present in his house as well as in the locality. The father of the victim girl met accused twice after girl was found missing. He noticed nothing unusual from the appearance of accused. No injury was found on the private part of the accused in the medical examination of accused conducted on 25/12/2009. No certificate of injury was produced for the period of more than two years of filing of charge sheet. First time the evidence regarding the injuries over the body of the accused was adduced during the course of recording of evidence by producing the MLC i.e. at the time of recording of testimony of Dr. Sadhana Thorat (PW 13). The evidence in that respect is not beyond shadow of doubt. There is no signature of the accused appearing in the MLC register. P.W. No. 13 has admitted that certain contents were scored out and some contents were written. There are no initials and date recorded below the contents scored out and contents which were added in the MLC register. On the face of the alleged notings in the MLC register which was produced at the time of trial, it is unsafe to rely upon such evidence. We are, therefore, of the view that the substantive evidence brought through the cross-examination of the prosecution witnesses stands on much higher footings than the explanation of injuries by an accused in the statement recorded u/s. 313 of Cr.P.C.

The Honourable Apex Court in the case of Mohan Singh Vs. Prem Singh and Another, laid down the object and scope of section 313 of Cr.P.C. The Apex Court has observed as under:

Statement of accused u/s. 313 of Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence laid by prosecution to accept or reject. It is further not a substitute for evidence of prosecution.

In the case of Dehal Singh Vs. State of Himachal Pradesh, the Apex Court has again considered the scope and ambit of Section 313 of Cr.P.C. and observed as under:

Statement u/s. 313 of Cr.P.C. is demonstration to appreciate the truthfulness or otherwise of the case of prosecution and it is not a evidence. Statement of an accused u/s. 313 of Cr.P.C. is recorded without administering oath and therefore, said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. The appellant have not chosen to examine any other witness to support their plea and in case none was available they were free to examine themselves in terms of Section 315 of Cr.P.C., which, inter alia, provides that person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement u/s. 313 of Cr.P.C. as evidence as the accused cannot be cross-examined with reference to those statement. However, when an accused appears as witness in defence to disprove the charge, his version can be tested by his cross-examination.

In the case of Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, after considering earlier decisions of the Apex Court as to object and scope of section 313 of Cr.P.C. the Apex Court has summarized the law on the issue of scope and purport of Section 313 of Cr.P.C. in criminal trial. In Para. 36 of the judgment, the Court has observed as under:

In view of the above, the law on the issue can be summarized to the effect that statement u/s 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him u/s 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution''s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement u/s 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required u/s 315 Cr.P.C.

Thus, it is well settled position in law that the statement u/s. 313 of Cr.P.C. cannot be treated as evidence and same cannot be used to fill up the gap left by the prosecution witnesses. The evidence brought on record through the cross-examination of prosecution witnesses to support the case of the defence which includes to explain the circumstance appearing against the accused stands on higher footings than the explanation of accused u/s. 313 of Cr.P.C.

Perusal of the statement of accused u/s. 313 of Cr.P.C. reveals that the following questions were put to the accused on the basis of testimony of Dr. Sadhana Thorat (PW 13):

Q. 57: It is the evidence of P.W. No. 13 Dr. Sadhana Thorat that on 25.12.2012 at about 6.15 p.m. she examined you brought by API-Thombare of Vartak Nagar police station. She found multiple nail abrasions on both your forearms on dorsal aspect on left thumb and the left side of neck and mandible region. What have you to say about it?

Ans.: My samples were collected however, there were no injuries on my person.

Q. 58: It is further her evidence that the age of injuries on your person was 24 to 48 hours. What have you to say about it?

Ans.: It is false.

Q. 59: It is further her evidence that on your physical examination there was nothing to suggest you were unable to perform sexual intercourse accordingly she issued certificate Exh. 60. What have you to say about it?

Ans.: I do not know.

Q. No. 60: It is further her evidence that she had mentioned the injuries on your person in her register, the copy of which she has produced at Exh. 61. What have you to say about it?

Ans.: I do not know.

If we consider the above stated questions put to the accused in his statement recorded u/s. 313 of Cr.P.C., then it cannot be said that accused has not offered any explanation as to circumstance of injuries appearing against him. The accused has fairly stated that samples were collected but denied that there were injuries on his person. The answer to other three questions put to the accused cannot be said to be non-explanation of circumstance appearing against accused. We have already discussed in forgoing paras that the injury certificate describing the various injuries on the body of the accused, it''s dimension, colour of the injures etc. was not procured by the Investigating Officer till filing of the charge sheet as well as till the Court proceed with the trial. P.W. No. 13 has deposed about the injuries on the basis of MLC register brought at the time of recording of her evidence. Therefore, the submission advanced that accused had failed to offer explanation as to injuries found on his body cannot be treated as an additional link to establish the culpability of accused in commission of offence.

The law is well settled that when any circumstance specifically within a knowledge of the accused, if he failed to offer explanation as to that circumstance appearing against him, then only that circumstance can provide additional link to fill up the gap of circumstance appearing against him. Thus, in our view, the non-explanation of alleged circumstance is not much relevant in present case. We are, therefore, of the view that, the reason and findings recorded by the learned Additional Session Judge as to circumstance No. 3 are not sustainable in law as same being recorded without proper appreciation of evidence on record. The findings are recorded by ignoring the important evidence brought by defence through the cross-examination of witness to support the case of the defence. The learned judge has totally ignored the evidence brought during the cross-examination of Rajeshkumar (PW 2)-the father of the victim girl, who has categorically admitted that on 24/12/2009 he met accused twice after his daughter found missing. The accused was very much present in the locality as well as in his house when he met with the accused. P.W. No. 2 had visited the accused at his house. He had a talk with accused for about two minutes. From the appearance of the accused, he had not found anything unusual. The accused was apprehended and beaten by the mob on the suspicion expressed by the father of the victim girl. The accused was taken to a police station at about 10.00 a.m. and handed over to police. Still the panchanama of arrest shown to be made at 3.15 p.m. The false story was put forth to rope in the accused by showing that he was hiding behind the tree in Mama Bhanje mountain area nearby the firing range ground, where the dead body of deceased was recovered and then brought to police station. PSI-Tombe (PW 17) has admitted that no panchanama was made at the place where the accused was apprehended. We are, therefore, of the view that the reasons and findings recorded by the learned Additional Session Judge as to circumstance No. 3 are without proper appreciation of evidence on record and same are perverse.

The circumstance Nos. 4 to 6 relied by the prosecution as the chain of events establishing the guilt of accused are based upon the evidence of seizure of clothes and report of Chemical Analyzer. We are, therefore, discussing these circumstances together to reach a proper conclusion. In order to establish these circumstances, the prosecution has mainly relied upon the testimony of Satishchandra Pathak (PW 9)-the panch witness to arrest-cum-seizure panchanama of accused made vide Exh. 51 and reports of Chemical Analyzer. We have already discussed in forgoing paras the evidence of Satishchandra Pathak (PW 9). His testimony is at Exh. 50. He has deposed that on 25/12/2009, he was called by the police at Police Station, Vartaknagar to act as panch witness in respect of arrest of accused. He has deposed that the name of the person arrested was Javahar Gupta. The witness has again stated that the name of that person was Sanjay Gupta. The further testimony of this witness shows that he has stated that he does not know the name of the person correctly, but his surname was Gupta. It is pertinent to that that the witness has nowhere stated that in his presence the police asked the name of the accused and accused has told his name. Thus the evidence of this witness as to arrest panchanama and seizure of clothes is very much doubtful. In his further examination-in-chief, the witness has said that police took search of clothes of person arrested and in his personal search 14 coupons of canteen were found in the pocket of his shirt and the person told police that he was employed with Indian Smelting and Refining Company Limited. The witness has deposed that there were blood stains on his hips, legs as well as on his pant. The witness has again stated that on the pant of that person, there were stains of blood and mud. At the side of hip and leg there were blood stains. Forth button from the bottom of his shirt was missing. He had abrasions over his cheek, neck and both arms. He was wearing blue colour underwear. There were blood stains and stains of semen on his underwear. In the cross-examination, the witness has deposed that he has studied up to 12th Std. and he can read the contents of panchanama (Exh. 51). He has admitted that father of the victim girl was known to him since last eight years and they resided in the same locality. He has admitted that he was on visiting terms with the father of victim girl. He has further stated that when he was called to act as panch witness, at that time he was present outside the police station. He has further stated that he himself taken part in search of missing girl since 24/12/2009. Beside him 100 to 150 persons from the locality were searching the missing girl. He has deposed that sister of accused resided in same locality. He has deposed that he do not know as to who brought the accused in police station and what clothes the accused was wearing when he was brought to police station. He has further stated that he do not know as to whether the accused was beaten at the police station or before he was brought to police station.

If we consider the testimony of this witness, it appears that the witness was close to the father of the victim girl and the possibility of witness being interested to see the accused being convicted cannot be ruled out. The witness cannot be said to be independent panch witness to recovery of the clothes of the accused. P.W. No. 9 was himself searching the missing girl throughout night of 24/12/2009. He was present outside the police station when he was called to act as a panch witness. It is, therefore, not safe to rely upon the testimony of such witness as to recovery of clothes of accused which has been treated as one of the incriminating circumstance against the accused to draw the conclusion of guilt against him. It is pertinent to note that panchanama was made at police station. As per the panchanama-Exh. 51, the panchanama was started at 15.50 hours and concluded at 16.40 hours of 25/12/2009. As per the testimony of P.W. No. 2, the accused was apprehended and beaten by the people from the locality and taken to police station on 25/12/2009 at about 10.00 a.m. Whereas the arrest of accused shown to be made after 3.00 p.m. As such, the position as that of the body of accused and the clothes on his person as exists at 3.15 p.m. cannot be said to be same as it was immediately before he was apprehended by mob and taken to police station. P.W. No. 2 has categorically deposed that the people from the locality have apprehended the accused on his expressing suspicion against the accused and handed over to police. He has further deposed that he himself and persons from the locality had grave anger against the accused and the public had beaten the accused. He has further deposed that as he had expressed suspicion against the accused, people apprehended accused from locality, the mob beat him up and then took him to police station. Therefore, the position of the clothes, the existence of injuries on the body of the accused cannot be conclusively said to be outcome of his involvement in commission of offence of rape and murder of deceased. The existence of the blood on the clothes of accused and condition of the clothes cannot be conclusively said to be because of his involvement in the commission of offence. In the light of evidence brought on record through the cross-examination by the defence, the probability of the injuries on the person of accused, the blood on the clothes of accused cannot be ruled out due to beating at the hands of mob who apprehended the accused on the suspicion expressed against him by the father of the victim girl. The existence of mud, missing of fourth button of the shirt can also be due to the reason that the accused was manhandled and beaten by the people from the locality. This aspect of the evidence has not at all taken into consideration by the learned Additional Session Judge while recording conclusion as to circumstance Nos. 4, 5 and 6.

It is pertinent to note that Dr. Sadhana Thorat (PW 13) has categorically admitted that the injuries which were found on the body of the accused were possible due to accused being caught and beaten by mob. No injures were found on the private part of the accused. In the cross-examination of the Dr. Sadhana Thorat (PW 13), the defence has specifically brought on record that the existence of semen on the underwear cannot be treated as unusual circumstance as there are various reasons for discharge of semen. The witness has admitted that there can be discharge of semen due to night fall. Dr. Thorat (PW 13) has admitted that night fall is a normal phenomena in a male person and due to that reason the semen may appear on the undergarment of the person. The rape was committed on a girl of tender age i.e. 8 to 10 years whose sexual character were not fully developed. From the testimonies of P.W. Nos. 13 and 14 coupled with postmortem report (Exh. 62), it is evident that the girl was subjected to rape i.e. vaginal intercourse and attempted penetration through anus. The evidence on record shows that the penetration was so forceful that the vagina was torn up to anus. In our view, in such circumstances, there is every possibility that the offender of such act may have some injury over his private part. No such injury was found on the examination of the private part of the accused. All these circumstances creates a strong probabilities in favour of accused to establish the innocence of accused, which has been completely ignored by the learned Additional Session Judge, while appreciating the evidence.

It appears that in present case, the entire investigation has been carried out only on the basis of suspicion expressed by the father of the victim girl as against the accused. The investigating agency had not carried out any fair independent investigation to rule out the possibility of act being committed by any person other than accused. The defence of the accused and the evidence brought in support of the defence through the cross-examination of witnesses has been completely overlooked and brushed aside by the learned Additional Session Judge.

As per the prosecution case, at the time of arrest of the accused they had seized one half bush shirt which was on the person of accused. As per the testimony of P.W. No. 9 and arrest panchanama (Exh. 51), no blood stains were seen on the bush shirt of accused at the time of it''s seizure. Besides, police has seized a black colour pant with small lining lying on the person of accused on which some blood stains and mud was seen on the backside and both side bottom of the pant. They have also seized one blue colour elastic underwear with dried semen and blood stain over it. The said seizure of clothes was made on 25/12/2009.

As per the testimony of PI-Jagtap-Investigating Officer, the clothes of deceased, the clothes of accused, the articles seized from the spot, the vaginal and anal swab, sample of blood and nail clippings of deceased, the sample of blood and semen of accused, pubic hairs and nail clipping of the accused were sent to Chemical Analyzer along with forwarding letter dated 31/05/2009 (Exh. 74). So also, the viscera of the deceased was also sent to Chemical Analyzer. The reports of Chemical Analyzer are at Exh. 76 to 79. As per C.A. report (Exh. 76) in the viscera of the deceased no poison was detected. As per C.A. report (Exh. 77), on analysis of blood sample of the deceased, her blood group was found to be of group ''B''. On analysis of vaginal and anal swab, no semen was detected. On examination of pubic hairs and nail clippings of the deceased, they were found to be stained with human blood. However, the blood group of same could not be determined as test results were inconclusive. So far as the examination of blood, semen, pubic hairs and nail clippings of the accused are concerned, the Chemical Analyzer has issued C.A. report vide Exh. 78. As per report, the blood sample of accused was found to be of group ''A''. On pubic hairs, no semen or vaginal fluid was detected. No blood was detected in nail clippings of accused. Thus, if we consider the C.A. report Exh. 77 and 78, then both the C.A. reports noway connect the accused with commission of offence of rape and murder of the deceased. The non-existence of semen and vaginal fluid on the pubic hairs of the accused leads to establish the circumstance of innocence of accused. Similarly, non-detection of blood in the nail clippings of the accused also favours the case of accused to establish his innocence in the case. It is pertinent to note that as per P.M. report (Exh. 62) and testimony of autopsy surgeon the abrasions were found on the body of the deceased. However, non-existence of blood in the nail clippings of the accused supports the case of the defence to establish innocence of accused. As per testimonies of P.W. Nos. 13 and 14, the white colour fluid was found to be spread in vagina up to anus as well as over the private part of the deceased. P.W. No. 13 has deposed that white colour fluid which was noticed on the private part of the deceased may be suspected semen. The nonexistence of blood as well semen on pubic hairs of accused also favours the case of accused to establish his innocence. The existence of blood in the nail clippings of deceased itself not sufficient to establish complicity of accused in commission of offence. The blood of accused was found to be of blood group ''A'' whereas the blood group of deceased was found to be of group ''B''. As per C.A. report (Exh. 77), the blood group of blood found in the nail clippings of deceased could not be determined as the test result found to be inconclusive. It has come on record that on 25/12/2009, when the dead body of deceased was recovered from firing range ground, the blood was oozing from her private part and other part of the body. There was profused bleeding occurred from the body of the deceased. It is, therefore, but natural that the human blood was found in the nail clippings of the deceased. Therefore, the existence of human blood in the nail clippings of deceased noway sufficient to establish the case of the prosecution and to prove the involvement of the accused in commission of offence of rape and murder of deceased. Therefore, the findings of trial court in this regard are not sustainable in law.

The report of Chemical Analyzer pertaining to analysis of articles found from the spot, the clothes of the accused seized by the police and the clothes of the deceased is at Exh. 79. As per the report-Exh. 79, the blood found on the stone (Exh. 6) was human blood of group ''B'' as that of deceased. Similarly the blood which was found on the grass stalks, the yellow colour metal wire and thread with pendant (Exh. 4, 12 and 13) i.e. articles lying on the person of deceased were found to be stained with blood of group ''B''. So far as the slacks of the deceased (Exh. 5), which was lying on the spot near to dead body of deceased is concerned, no blood was detected. So far as the frock of the deceased (Exh. 31), the blood stains as well as semen stains were detected. However, the blood group of the blood as well as semen could not be determined as the results of analysis found to be inconclusive. Thus the articles seized from the spot and the clothes of the deceased are concerned, the C.A. report (Exh. 79) noway helps the prosecution to establish the complicity of accused in commission of offence.

As per C.A. report (Exh. 79) on half bush shirt (Exh. 8) seized from accused under seizure panchanama (Exh. 51) is concerned, the human blood of blood group ''B'' as that of blood group of deceased shown to be detected. However, if we consider the panchanama of seizure of clothes of accused (Exh. 51) made at the time of his arrest, then it establishes that no blood was seen on the shirt of accused. Whereas report of Chemical Analyzer shows that shirt was stained with blood and that too of blood group ''B''. Thus, if no blood stains were seen on the shirt of the accused at the time of his arrest, still the report of Chemical Analyzer show the existence of blood and that too of blood group ''B'', then it raises serious doubt as to the seizure of the clothes of accused. In such circumstances, the possibility of tampering of clothes of accused cannot be ruled out. Similarly, as per the panchanama of seizure of clothes of accused (Exh. 51), at the time of arrest of accused, the stains of blood were noticed on the back side of the pant (Exh. 9) as well as on the bottom of both the legs of the pant of the accused. However, as per C.A. report-Exh. 79, only two small blood stains that too on front right portion were detected on the pant of accused. So also, the blood group of same could not be determined. Similarly, on the underwear of the accused (i.e. Exh. 10) no blood as well as semen stains detected as per the report of Chemical Analyzer (Exh. 79). Whereas the testimony of P.W. No. 9 and the seizure panchanama (Exh. 51) reveals that the blood as well as semen stains were noticed at the time of seizure of the underwear. Thus, the seizure of the clothes of the accused and report of Chemical Analyzer are totally contradictory with each other. We have already discussed in the foregoing paras that the testimony of P.W. No. 9 found to be not reliable. In such circumstances, the possibility of clothes sent to Chemical Analyzer being tampered cannot be ruled out. Otherwise also the C.A. report (Exh. 79) itself does not help the prosecution to establish the complicity of accused in commission of offence.

We have already discussed in forgoing paras that the defence has established the fact that on 25/12/2009, the accused was apprehended by the people from the locality on the basis of suspicion expressed by Rajeshkumar (PW 2)-the father of the deceased. People had anger against the accused. P.W. No. 2 has stated that the mob has beaten the accused and then taken to police station. The position of clothes and the missing of fourth button of shirt as reflected in panchanama (Exh. 51) with injuries over hands, neck, mandible supports the case of the defence that accused was severely beaten by the mob. In such circumstances, the existence of blood on the shirt and pant cannot be ruled out due to the injures caused to accused. In this regard, the defence version appears to be probable and reasonable.

In view of the scrutiny of evidence on record, we are of the view that no incriminating circumstances have been established by prosecution against the accused on the basis of the seizure of clothes and report of Chemical Analyzer. The reasons and findings recorded by the learned Additional Session Judge in this behalf appears to be totally based upon misreading of the evidence and ignoring the defence of accused. In a case based upon circumstantial evidence, the court is expected to cautiously analyze the evidence. There is a presumption that accused to be treated as innocent till the guilt is proved against him beyond reasonable doubt. In a case based upon the circumstantial evidence, Court is expected to closely scrutinize the evidence to arrive to a proper conclusion as to whether the incriminating circumstances are conclusively prove the guilt against the accused and it rules out possibility that none else than accused had committed the offence. The reasons and findings recorded by the learned Additional Session Judge in this behalf to base it''s conclusion as to circumstances Nos. 4, 5 and 6 appears to be based on mere conjectures and surmises.

The learned APP for the State has submitted that the negative report of the Forensic Science Laboratory i.e. the blood group of blood found on the clothes of the accused showing inconclusive result is not sufficient to draw the conclusion that accused is not guilty of offence. In support of her contention, the learned APP has relied on the judgment of Apex Court in the case of Rajendra Pralhadrao Wasnik Vs. The State of Maharashtra, wherein it is held that the inconclusive report of Forensic Science Laboratory not necessarily leads to draw the conclusion that accused is not guilty. In the present case, the learned Additional Session Judge has relied on said judgment and observed that as the blood group of blood found in the nail clippings could not be determined treated as sufficient to conclude that the nail marks were not caused during the resistance offered by the deceased. In fact the learned Judge has totally misplaced in evaluating the evidence and relying upon the said judgment. In the case relied the Apex Court while dealing with the submissions advanced on behalf of the appellant in the case cited that report of Forensic Science Laboratory does not connect the accused to the commission of offence and claimed that accused is entitled for benefit of doubt, the Honourable Apex Court has observed that merely on the basis of Forensic Science Laboratory report found to be inconclusive, not necessarily leads to irresistible conclusion that accused is not guilty cannot be drawn particularly when the prosecution has established it''s case on the basis of circumstantial evidence as well as by direct and oral evidence. The ratio laid down in the case relied is not applicable under the facts of the case as in the present case, the prosecution could not establish any circumstances to establish the guilt of accused. We have already discussed in detail and observed as to how circumstances relied by the prosecution do not lead to establish the guilt of accused. Therefore, the ruling relied have no bearing upon the facts of the present case. We are, therefore, of the view that reasons and findings recorded by the learned Additional Session Judge as to Circumstance Nos. 4 to 6 are perverse and not sustainable in law in view of discussion made in the foregoing paras.

As discussed in foregoing paras, the present case is wholly based upon the circumstantial evidence. We have already discussed in forgoing paras the basic principles to be kept in mind while dealing with case wholly based upon circumstantial evidence. The investigating agency has not thoroughly and properly investigated the case. The case was registered against the accused merely on the basis of suspicion expressed by complainant that the accused was seen present in the lane outside the house at 8.30 p.m. on 24/12/2009 and purchased chocolate and biscuits for her and therefore, he must have kidnapped, raped and murdered his daughter. The investigating officer has failed to take into consideration that accused was very much present in the locality when the family members of the missing girl and people from the locality were searching the missing girl. The victim girl appears to have been missing after 8.30 p.m. on 24/12/2009. It has come on record that P.W. No. 2 i.e. the father of the victim girl met accused at about 9.30 p.m. near to his house while he was searching his daughter. He had talk with the accused for two minutes. He inquired from him about his missing daughter. The accused told him that at 8.30 p.m., he had purchased toffee and biscuits for her from the nearby shop. Thereafter, he do not know as to where she has gone. At 11.00 p.m., P.W. No. 2 again met accused at his house while he was searching his daughter. At that time also the accused told same fact to him. It has come on record that large number of people from the locality were searching the missing girl till late night. P.W. No. 2 also visited the police station in the midnight and orally reported about his missing daughter. Till that time, he has not expressed suspicion against the accused. On the next date i.e. on 25/12/2009, at about 8.00 a.m. the missing girl was found in a dead condition in the nearby firing range ground. At about 10.00 a.m., the father of the victim girl lodged report expressing his suspicion against the accused. As per the testimony of P.W. No. 2, the accused was apprehended by the people from the locality on his expressing suspicion against the accused. The accused was apprehended in same locality. He was beaten by the people from the locality and taken to police station. As per the facts deposed by P.W. No. 2, the accused was taken to police station at about 10.00 a.m. The very presence of accused at his residence on 24/12/2009 at 9.30 p.m. and 11.00 p.m. i.e. after the girl was found missing even after recovery of her dead body itself operates as a strong circumstance to prove the innocence of the accused.

If we accept the prosecution case, that on 24/12/2009 at 8.30 p.m. the victim girl was found present outside her house in the lane and subsequent thereto her sister-Chanda (PW 2) came out of her house to call her for dinner and at that time she found her younger sister was not present outside the house and thereafter, her family members went in search of victim girl, then it can be safely presume that the girl was found to be missing at about 9.00 p.m. It has come on record that the father of the victim girl while searching his daughter, met with accused at 9.30 p.m. in the locality in which he was residing. The house of the accused was located nearby to the house of father of the victim girl. It has come on record that the father of the victim girl again met with accused at 11.00 p.m. at his residence while he was searching his daughter. If we consider this evidence on record, then it makes out a strong circumstance in favour of the accused to prove his innocence.

We have already discussed in the foregoing paras that the girl was found to be brutally raped and murdered. She was subjected to vaginal and anal intercourse. The penetration was so forceful that vagina was torn up to anus. The girl was strangulated. There was a serious injury found on her head besides other bodily injuries. The head of the girl was either banged against the big stone found on the spot or she was hit by stone over her head. As per the testimony of autopsy surgeon, the ligature mark seen around the neck of the deceased suggestive of fact that strangulation was probably done by use of rope or the cloth. The autopsy surgeon has categorically deposed that the strangulation was not caused due to pressing of hand over the neck of the deceased. No object used for strangulation was recovered throughout the investigation nor any attempt was made to recover the same.

The dead body of the deceased was recovered from isolated place i.e. the open space known as firing range ground. No attempt has been made by the investigating agency to ascertain as to whether any person from locality had seen the victim girl going towards firing range ground with any person, although large number of houses were existing from the place where the deceased was last seen and the road/way going towards firing range ground. There is no evidence to show that the deceased was seen going towards firing range ground with accused. Even the prosecution witness-Shivaji Khot (PW 12)-the grocery shop-keeper has not supported the case of the prosecution that the victim girl visited his shop with accused and accused purchased chocolate and biscuits for her. On the contrary, P.W. No. 12 has deposed that the daughter of P.W. No. 2 has come alone to his shop. P.W. No. 6-Aarti has deposed that accused had given one rupee to deceased girl for purchasing chocolate. She has also not stated that she had seen accused and deceased going towards shop of P.W. No. 12 or towards firing range ground. Thus, except the fact that on 24/12/2009 at about 8.30 p.m., the deceased and accused were seen present in the lane nearby to their house, no other evidence of last seen together has been brought on record by the prosecution. The presence of accused and the victim girl in the lane nearby to their house is a most natural circumstance and by no stretch of imagination same can be treated as incriminating circumstance.

The investigating Officer has not made any attempt to call for the team of Chemical Analyzer to obtain the sample and to send articles found on spot for DNA Test. So also, dog-tracking squad unit was not summoned to trace the moments of culprits from spot of incident. No attempt was made to find out the whereabouts of accused on and after 8.30 p.m., so as to ascertain, whether the investigation was going in proper direction. It has come on record that even the certificate of injury on the body of the accused was not procured till recording of evidence of the prosecution witnesses. The injury on the body of the accused were first time tried to be proved by producing the MLC register at the time of recording of evidence of Medical Officer-Dr. Sadhana Thorat. In the certificate obtained in response to the query-Exh. 61, there is no reference of injuries found on the body of the accused at the time of his medical examination. It is also established that the concocted story has been cooked to show abscondance of accused and his arrest from the place nearby to place where the dead body of the deceased was recovered. The falsity in the case of the prosecution in regard to arrest of accused has been exposed through the testimony none else than the father of the victim girl, who has categorically deposed that the accused was apprehended by the people from the locality after he expressed suspicion against him and the accused was beaten by the mob and taken to police station when he lodge complaint at about 10.00 a.m. Whereas the attempt has been made by the investigating officer to show that accused was found to be hiding behind the tree in the Mama Bhanje mountain area, when police party went in search of accused and the arrest of accused is shown to made at about 3.15 p.m. on 25/12/2009 at police station. No panchanama was prepared at the place where accused alleged to be hiding himself. No independent witness is examined on this aspect. The investigating officer (PW 16) has totally acted in negligent manner in conduct of investigation of case. He could not tell as to when and how the accused was arrested. He has only deposed that accused was brought to police station by PSI-Tombe (PW 17). Whereas API-Thombe (P.W. No. 17) has deposed that accused was hiding behind one tree near Mama Bhanje mountain, when he went in search of accused. It has come on record that P.W. No. 17 was busy in investigation till 1.00 o''clock. In cross-examination, he has deposed that he started from police station at 10.30 a.m. to arrest the accused. The place of incident was three and half kilometers from police station. He has deposed that first he visited place where the dead body of deceased was found. He has further deposed that he called a vehicle to carry the dead body of deceased to hospital. He remained on the spot of incident for about one hour. Then, he went on his motorcycle to civil hospital. He remained there for one hour. From civil hospital, he left for police station at about 12.30 p.m. He has further deposed that from police station, he again went to spot of incident. Before apprehending accused, he interrogated one person by name Hiralal Patil. It is pertinent to note that P.W. No. 17, who claimed to have apprehended the accused behind the tree has deposed in his cross-examination that he is unable to tell the exact place from where he apprehended the accused. It is pertinent to note that the father of victim girl i.e. P.W. No. 2 has deposed that accused was apprehended by people from locality. He was beaten and taken to police station by the people from the locality at about 10.00 a.m., when he lodged complaint about the incident against the accused. P.W. No. 17 has admitted that no entry in respect of his leaving police station and coming back to police station was taken in the station diary. Thus, if we consider the testimony of P.W. Nos. 16 and 17 in the light of evidence brought through the cross-examination of father of victim girl i.e. P.W. No. 2, then it establishes that false story of abscondence and apprehending accused from place nearby the place of incidence has been cooked by the investigating agency.

We have discussed in the foregoing paras as to how attempt has been made to show the recovery of five loose coupons of canteen from the spot of incident so as to anyhow rope in accused in commission of offence. It is highly impossible that five lose coupons in the form of small chit remain by the side of the body of deceased fallen from the pocket of culprit remain on the spot i.e. the open ground for hours together after the commission of offence. The attempt has been made to link up fourteen coupons found to be in stapled condition seized from the spot to anyhow connect the accused with commission of offence. We have already discussed in foregoing paras that none of the coupons which were recovered from the spot as well as coupons shown to be recovered from accused bears any serial number or distinctive mark to connect the accused with the commission of offence. We have also discussed in the foregoing paras the discrepancies in respect of seizure of clothes of accused which were shown to be seized vide seizure panchanama (Exh. 51) and the report of Chemical Analyzer at Exh. 79. Although at the time of seizure of clothes, no blood stains were seen on the bush shirt of the accused, in the C.A. report the human blood of blood group ''B'' is shown to be detected. Though in the panchanama on the underwear of the accused the existence of blood and semen stains was shown, the C.A. report (Exh. 79) reflects that no such blood and semen stains detected on the underwear.

In the facts and circumstances of the case, it is useful to refer the decision of the Apex Court in the case of Tanviben Pankaj Kumar Divetia Vs. State of Gujarat, wherein the Apex Court has observed as under:

The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance 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. This Court was clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof.

Thus upon re-appreciation of entire evidence, we are of the considered opinion that none of the circumstance relied by the prosecution can be treated as incriminating circumstance forming chain of events so complete that it leads to draw conclusion of guilt of the accused. So also, the evidence on record do not establish that it is an accused and accused alone committed the act of rape and murder of the deceased and involvement of person other than accused cannot be ruled out. So also, the circumstances taken together cumulatively do not form chain so complete that there is no escape from the conclusion that within all human probabilities that the crime was committed by the accused and none else. The evidence on record is not sufficient to prove the guilt of accused beyond reasonable doubt. There is no clinching and credible evidence to convict the accused for offence punishable u/s. 376(2)(f) and 302 of IPC. The reasons and findings recorded by the trial court are found to be perverse and based upon improper appreciation of evidence on record and not sustainable in law. We are of the view that prosecution has failed to prove the guilt against the accused beyond reasonable doubt. In the result, the accused deserves to be given benefit of doubt. In the result, the appeal of the accused deserves to be allowed and conviction of the appellant is liable to be set aside. We, therefore, pass the following order:

ORDER

I) Criminal Appeal No. 1286 of 2013 filed by the appellant-original accused is allowed.

II) The judgment and order dated 16/05/2013 passed in Session Case No. 159 of 2010 by Ad-hoc Additional Session Judge-3, Thane convicting the appellant/accused for offence punishable u/s. 376(2)(f) and 302 of the Indian Penal Code is hereby set aside. The accused is acquitted of both these offences. The appellant/accused be set at liberty forthwith, if not required in any other case.

III) In view of the appeal filed by appellant is allowed, the reference made vide Confirmation Case No. 5 of 2013 stands disposed of in terms of decision in Criminal Appeal No. 1286 of 2013.

IV) The original record and proceeding of Session Case No. 159 of 2010 be remitted back to Sessions Court, Thane.