JUDGMENT 1. - By his judgment dated May 31, 1988, the learned Sessions Judge, Jaipur District, Jaipur convicted the accused Gopal alias Sukhpal under section 302 & 376 I.P.C. and sentenced him to imprisonment for life with fine of Rs. 1,000/-, in default of the payment of fine to further undergo 6 month's rigorous imprisonment on the first count and 10 years rigorous imprisonment with a fine of Rs. 500/-, in default of the payment of fine to further undergo four month's like imprisonment. The accused has come up in appeal and challenge his conviction. 2. Briefly summed-up, the prosecution case is that the deceased victim Kanchan aged about 11 or 12 years at the time of the incident was the sister of PW 1 Hanuman resident of Sambhar, Distt.-Jaipur. As usual, Kanchan took the goats for grazzing to her filed situate near the railway crossing gate in the morning on 12-7-1985. PW 1 Hanuman was then working in Sambhar Salts. His younger brother Phool Chand (PW 3) went to the field and found the goats grazzing there. A 'Kucha Ghar' is situate in the field. Phool Chand did not find her sister Kanchan and found Kanchan lying dead therein. Blood was oozing out from her mouth and nostrils. He rushed to his brother Hanuman and apprised him of what he had seen. Hanuman collected many persons and took them to the `Kucha Ghar' situate on the field. They all saw Kanchan lying dead with blood oozing out from her mouth and nostrils. Her Saree was found tied around her neck. They noticed some foot-prints in the field. They followed the foot-prints and proceeded further. The foot-prints took them all to the house of the appellant. Hanuman went to police station Sambhar Lake and verbally lodged report Ex. P. 1 of the incident at about 3.00 P.M. The police registered a case and proceeded with the investigation. The Investigating Officer Mohan Lal (PW 14) arrived on the spot, inspected the site, prepared the site plan and the inquest report of the victim's dead body. He lifted the blood stained soil from there. He also got the photographs of the foot prints prepared. The Investigating Officer lifted the foot-prints found near about the place of incident by preparing the moulds. The accused was arrested on that very day. He lifted the blood stained soil from there. He also got the photographs of the foot prints prepared. The Investigating Officer lifted the foot-prints found near about the place of incident by preparing the moulds. The accused was arrested on that very day. The post mortem examination of the victim's dead body was conducted on 14-7-1985 by PW 10 Dr. Tiwari the then Medical Officer Incharge, Govt. Hospital, Sambhar. The Doctor noticed as many as 18 external injuries as mentioned in the post mortem examination report Ex.P. 17. The Doctor also noticed the vagina bleeding and the hymen teared and ruptured. The injuries were ante-mortem. The Doctor was of the opinion that the cause of death of Kanchan was asphyxia due to strangulation. He was also of the opinion that Kanchan was raped before her death and she had put resistance and struggle before death. 3. The medical examination of the accused was conducted on 12-7-1985 soon after his arrest. The report of his examination is Ex.P.16. No injuries or marks of struggle were found on his person including the penis. The Doctor, therefore, could not express any opinion whether the accused had performed the act of sexual intercourse within 12 hours preceding his medical examination. After when the specimen of the accused's foot-prints were taken, the chance foot-prints found on the spot and the specimen footprints of the accused were sent for scientific examination to the State Forensic Science Laboratory Rajasthan, Jaipur. They were found similar and identical with one another. On the completion of the investigation, the police submitted a crime report against the appellant in the court of the Chief Judicial Magistrate, Jaipur District, Jaipur, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charges U/ss. 302 & 376 IPC against the accused to which he pleaded not guilty and faced the trial. In support of its case, the prosecution examined 15 witnesses and filed some documents. In defence, the accused examined one witness. On the conclusion of trial, the learned Sessions Judge held both the charges duly brought home to the accused. He was of the opinion that the rape and murder were committed in a single transaction and they were the integral parts of each other. The appellant was consequently convicted and sentenced as mentioned at the very outset. On the conclusion of trial, the learned Sessions Judge held both the charges duly brought home to the accused. He was of the opinion that the rape and murder were committed in a single transaction and they were the integral parts of each other. The appellant was consequently convicted and sentenced as mentioned at the very outset. Aggrieved against his conviction, the accused has taken this appeal. 4. We have heard Mr. S. R. Surana, learned counsel for the appellant and the learned Public Prosecutor, Mr. O.P. Sharma. We have also gone through the case file carefully. 5. Before proceeding further, it may be pointed out that the opinion of PW 10 Dr. Tiwari about cause of death of the deceased victim Kanchan was not challenged before us by the learned counsel. So also the opinion of Dr. Tiwari that Kanchan was raped before she was strangulated to death was not challenged. We, therefore, need not touch the evidence of Dr. Tiwari in details. Suffice it to say that Kanchan was first raped and was then throttled to death. The rape and the murder were committed in a single transaction and both are the integral parts of each other. 6. Admittedly, there is no direct evidence against the accused and the entire prosecution case rests squarely on circumstantial evidence. The learned Sessions Judge convicted the appellant on the following sets of circumstantial evidence:- 1. Two marks of the right foot sandal were found on the spot of which moulds were prepared by Plaster-in-Paris. On the information of the accused, a pair of sandals was recovered. The chance foot-prints found near the place of incident tallied with the specimen foot-prints taken of the accused's right foot wearing the sandal, and 2. Mucus type fluid material was found on the cornaglands of the appellant's penis when his medical examination was conducted just after his arrest on 12.7.1985. 7. In assailing the conviction, it was strenuously contended by Mr. Surana that both these sets of circumstantial evidence in the first place do not stand proved and even if taken as proved, they were wholly insufficient to raise an inference that the appellant was the perpetrator of the crime. It would be proper to deal with these contention of seriatim. 8. The contention of Mr. Surana that both these sets of circumstantial evidence in the first place do not stand proved and even if taken as proved, they were wholly insufficient to raise an inference that the appellant was the perpetrator of the crime. It would be proper to deal with these contention of seriatim. 8. The contention of Mr. Surana is that the house of the accused is situate only at a distance of 400 yards from the place of incident. The place of incident has been shown in site plan Ex.P.2. It is not clear as to from where the moulds of the chance foot-prints were taken. PW 9 Hanuman who is a Motbir of memos Ex.P. 14 & Ex.P. 15 pertaining to the taking of moulds clearly stated that the investigating officer first placed sandals near about the place of occurrence and then prepared the models of the foot-prints caused by the sandals. This is sufficient to throw away the entire evidence relating to foot-prints. We have best owed our thoughtful consideration to the contention and find much substance in it. 9. Ex. P-14 and Ex. P-15 are the memos about the preparation of the moulds of the foot-prints. These documents show that the moulds of the footprints were taken on the very day of incident. These memos show that the moulds were prepared of the right foot-prints found in the field of the father of the deceased victim Thakarse. Site plan Ex. P 2 shows that the said field is a big one. These document Ex. P-14 and Ex. P-15 do not show as to from which place in the field, the moulds of the foot-prints were lifted. In Ex. P-2, it has been mentioned that the house of the accused is situate in the west of the place of incident somewhere at a distance of 400 yards. It was, therefore, not an unusual or unnatural phenomenon for the accused to have gone into the field of Thakarse. It was, therefore, incumbent on the part of the investigating officer to have mentioned in Ex. P-14 and Ex. P-15 as to from which place in the field, the moulds of the foot-prints were lifted. 10. The testimony of PW. 9 Hanuman has given a fatal kick to the entire evidence of the foot-prints, P.W. 9 Hanuman is a Motbir victim of Ex. P-14 and Ex. P-15. P-14 and Ex. P-15 as to from which place in the field, the moulds of the foot-prints were lifted. 10. The testimony of PW. 9 Hanuman has given a fatal kick to the entire evidence of the foot-prints, P.W. 9 Hanuman is a Motbir victim of Ex. P-14 and Ex. P-15. In his cross-examination, he admitted- " ;g lgh gS fd igys lSafMy dk tehu ij fu'kku yxk;k o fQj eksyM mBk;k --------okLrfod ckr ;g Fkh fd mUgksaus ( Fkkusnkj ) us lSaMy j[kdj eksyM mBk;k FkkA " This witness was not declared hostile. He remained firm and consistent that the investigating officer first got the sandal mark fixed on the soil and then prepared the moulds of that print caused by the sandal. If it is, the entire evidence relating to foot-prints becomes highly suspicious and no credence can be given to it. Such evidence is insufficient to sustain the conviction. 11. The recovery of the pair of sandals at the instance of the accused is equally suspicion and disturbing. The appellant was arrested on 12.7.1985 itself after some hours of the incident. His memo is Ex. P-11. It was on 23.7.1985 that the accused gave informations recorded in Ex. P-21 and Ex. P-22 to the investigating officer Beliya Ram (PW. 13). One information is in respect of a pair of sandals and the other is in respect of the paint. Even if it is accepted that the pair of sandals was recovered at the instance of the accused, it is not sufficient to show that it belonged to him. There is no evidence connecting the appellant with the sandals. No evidence was adduced to show that he used to wear these sandals or that they belonged to him. It is quite interesting note that he kept the sandals burried in a field as is shown is Ex. P-21. The pair of sandals was not a valuable article which would be burried deep in the soil. The accused was arrested on 12.7.1985. It is a disturbing feature that no information could be gathered from him from 12.7.1985 to 23.7.1985 in respect of the sandals. The recovery of the sandals does not appear to be genuine. 12. The moulds of the chance foot-prints and the specimen foot-prints were sent for scientific examination to the State Forensic Science Laboratory Rajasthan, Jaipur. The report received from there is Ex. P-28. The recovery of the sandals does not appear to be genuine. 12. The moulds of the chance foot-prints and the specimen foot-prints were sent for scientific examination to the State Forensic Science Laboratory Rajasthan, Jaipur. The report received from there is Ex. P-28. The opinion expressed in Ex. P-28 is that all the three Plaster-in-Paris casts tally with one another and the sole impression on these three casts was caused with the right foot sandal. 13. It was contended by Mr. Surana that the report Ex. P-28 is extremely vague and highly laconic. No datas have been given on which the opinion is based. As such report Ex. P-28 is of no evidentiary value. The contention is not ineffective. It has considerable force. 14. The fact that foot marks corresponding to that of the accused were found near the spot of occurrence is relevant. The expert's evidence relating to the comparison of the foot marks is admissible U/s 45 of the Evidence Act. When the features of the chance foot mark bears the same combinations of features of the specimen foot mark first, it then becomes a valuable piece of evidence based on an identity-inference. The expert is required to state the datas on which he bases his conclusions before his opinion becomes admissible in evidence. An expert is required to specify the features on which he bases his opinion of identity. The two moulds i. e. the chance and the specimen, should be measured lengthwise, breathwise and part-by-part. If they tally in all material points, then only an opinion can be formed. An expert is expected to give complete datas on which he bases his conclusion or opinion. The expert opinion not based on any datas is no opinion and deserves little or no consideration. 15. In the instant case, report Ex. P-28 of the State Forensic Science Laboratory is highly laconic. It does not disclose the datas on which the opinion is based. It does not disclose what similarities were found in the three Plaster in Paris casts and what were the dis-similarities in them. 16. Apart from that, the expert evidence is only an opinion. It is not conclusive. Mere fact that foot marks found on the spot of incident tally with those of accused's shoes is not sufficient for conviction. A conviction based on such evidence is not free from risk. 17. 16. Apart from that, the expert evidence is only an opinion. It is not conclusive. Mere fact that foot marks found on the spot of incident tally with those of accused's shoes is not sufficient for conviction. A conviction based on such evidence is not free from risk. 17. We may point out that main piece of circumstantial evidence on which the conviction has been made is the evidence of the foot-prints. For the reasons discussed above, the evidence of the foot-prints in the instant case is not conclusive and is wholly insufficient to warrant the conviction of the appellant. 18. The second set of evidence is that mucus type fluid material was found on the cornaglands of penis which according to Dr. Tiwari (PW 10) suggested that the accused had committed sexual intercourse. The learned Sessions Judge was much impressed with this set of evidence. However, he did not take the full report of Dr. Tiwari into consideration. Report Ex. P 16 is a detailed one. PW 10 Dr. Tiwari stated that he found no signs of struggle on the person of the appellant, no blood stains or semen stains on pubic hairs, due to emission of semen or blood and no signs of scratches or laceration on the penis of the appellant. Dr. Tiwari unambiguously admitted that he was unable to form an opinion whether the accused had committed sexual intercourse within 12 hours preceding his examination which he conducted at 9.30 PM on 12.7.1985 i.e. the day of occurrence itself. The offence is stated to have been committed on 12.7.1985. The victim Kanchan was hardly 11 or 12 years in age at the time of incident. Looking to her tender age, it is expected there must have been marks or signs of struggle or scratches or injuries or laceration on the appellant's penis and other such similar marks suggesting his having the intercourse. The medical evidence is not only Negative but strongly suggests that the accused had not committed any sexual intercourse on 12.7.1985. We have already stated above that rape and murder were committed in a single transaction and one formed the integral part of the other. If the prosecution evidence fails to show that the accused committed sexual intercourse with Kanchan, the inference of murder cannot be raised against him. 19. We have already stated above that rape and murder were committed in a single transaction and one formed the integral part of the other. If the prosecution evidence fails to show that the accused committed sexual intercourse with Kanchan, the inference of murder cannot be raised against him. 19. It is unfortunate that a girl of 10 or 11 years in age became the victim of rape and murder and the miscreant goes untraced. An accused can be convicted only on evidence it is immaterial whether the evidence is direct or circumstantial. Suspicion however, grave and spacious it may be is no substitute for proof required to convict an accused. Here in the instant case, the circumstantial evidence adduced by the prosecution does not lead to the inevitable inference that the appellant is the perpetrator of the crime. 20. In the result, the appeal of accused Gopal alias Sukhpal is allowed. His conviction under sections 302 & 376 IPC and the sentences awarded thereunder are set aside and he is acquitted of the said offence. He is in jail and shall be forthwith set at liberty if not wanted in any other case.Appeal allowed. *******