JUDGMENT 1. - Additional District and Sessions Judge, Kotputli has made reference to this Court under Section 366 Criminal Procedure Code for confirmation of death sentence awarded to the accused, while the accused has filed two appeals challenging his conviction. D. B. Criminal Appeal No. 455/93 has been filed through Jail, while Appeal No. 453/93 has been filed as a represented appeal. 2. The incident of the case is shocking one as a girl aged five years was made victim of rape and, thereafter, murdered. The sole accused-appellant before us was tried for the offence punishable under Sections 302 and 376 IPC in Sessions Case No. 52/92 (Old No. 109/91). The learned Additional Sessions Judge convicted him both under Sections 302 and 376 IPC. Under Section 302 IPC he was sentenced to death, while under Section 376 IPC he was awarded imprisonment for life and to pay a fine of Rs. 10,000. In default of payment of fine, he was awarded further rigorous imprisonment for three years vide impugned judgment dated 28th September, 1993. 3. At the very out-set, it may be stated that there is no direct evidence against the appellant and the case rests purely on circumstantial evidence. I am conscious of the gravity of the offences and am equally conscious that in a case of capital punishment which on the face of it, is cruel and revolting, it becomes all the more necessary for the Court to scrutinise the evidence with more than ordinary care. The gravity of the offence by itself cannot over-weigh so far as the legal proof in concerned.With above cautions in mind, I now proceed to examine the facts and circumstances as put forward and the various arguments advanced before us. 4. The deceased Kumari Sona, a girl aged five years, was the daughter of PW-2, Bishan Dayal. She was missing since 4 p.m. on March 18, 1991 and when she did not return home till the evening, a search was started by her father and other relatives. The search continued in the night and also the next morning. At about 8 AM on the next day i.e. March 19, 1991, PW-4 Kishori Lal came to the house of Bishan Dayal and informed that a girl was lying dead in Mohalla-Baseri. Thereupon, Bishan Dayal and Kishori Lal went there and found Kumari Sona lying dead. The search continued in the night and also the next morning. At about 8 AM on the next day i.e. March 19, 1991, PW-4 Kishori Lal came to the house of Bishan Dayal and informed that a girl was lying dead in Mohalla-Baseri. Thereupon, Bishan Dayal and Kishori Lal went there and found Kumari Sona lying dead. Blood was coming from her mouth and vagina and a rope was tied around her neck. Bishan Dayal, then, made a report at Police Station Kotwali-Kotputli and Crime No. 108/91 was registered under Sections 376 and 302 IPC. After registration of the case, investigation commenced. Site-plan Ex. P4 was prepared of the place where dead body of Kumari Sona was found lying. The autopsy of the dead body was conducted by a Medical-Board consisting of three Doctors vide post-mortem report Ex.R14. The doctors found eight external injuries on the dead body of the girl and they opined : "In our opinion, the probable cause of death of deceased is shock (produced due to vaginal trauma and rupture of post fornix) along with asphyxia due to ligature around the neck, probably ligature has been applied during shock.-The injuries are ante-mortem in nature. Time since death 6 to 24 hrs., approximately. The vaginal injuries are clotted blood and injuries to post fornix are indicative of rape." 5. The appellant was also medically examined by the Medical-board on 4.4.91. In the opinion of the Board, there was nothing to suggest that he could not perform sexual inter-course. No opinion was given that he had performed sexual inter-course in near past or past twenty-four hours. 6. As per the prosecution, on 5.4.91-one 'Chaddi' and one 'Baniyan' of the appellant were recovered from a dried well on his information under Section 27 of the Evidence Act. The prosecution relied upon the human blood and semen found on 'Chaddhi'. 7. After completion of investigation, charge sheet came to be filed against the appellant. He was tried in the court of the learned Additional District & Sessions Judge, Kotputli for the offence punishable under Section 302 and 376 IPC. Prosecution examined 21 witnesses during trial. The statement of the appellant under section 313 Criminal Procedure Code was of simple denial. No witness was examined in defence. The learned trial Judge, after completion of the trial, convicted and sentenced the appellant as stated herein above. 8. Prosecution examined 21 witnesses during trial. The statement of the appellant under section 313 Criminal Procedure Code was of simple denial. No witness was examined in defence. The learned trial Judge, after completion of the trial, convicted and sentenced the appellant as stated herein above. 8. Before I advert to consider the prosecution evidence and the circumstances relied on by the prosecution to seek conviction of the appellant, I may state that the manner in which the learned trial Judge has decided the present case of death sentence, based on circumstantial evidence, is quite unsatisfactory. Nowhere in the judgment the learned Judge has described the circumstances relied on by the prosecution. He also did not make critical analysis of the evidence qua each circumstance before accepting the same. In a criminal case, based on circumstantial evidence, it was expected of him to set out each and every circumstance relied on by the prosecution and then to examine the prosecution evidence critically to find out whether it was proved or not by cogent and reliable evidence. Legal principles are not magical formulae and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation from a judicial court is that judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of the circumstances in order to determine whether they are compatible with any other reasonable hypothesis. In para 13 of the judgment, the learned Judge has invented his own imaginary story without classifying the circumstances and the evidence by which they were proved. Such approach is hardly appreciable in a criminal case, more so, in a case of death sentence. 9. We heard the learned Public Prosecutor Shri R.S. Agrawal, at length. We asked him to narrate the circumstances on which prosecution relies upon for seeking conviction of the appellant. Mr. Agrawal narrated the following incriminating circumstances and contended that the guilt of the accused was well proved by them : i. That the accused and deceased were last seen together; ii. that the accused made a query from PW-5 Kalu Ram and PW-9 Santosh about the punishment in such cases and this reflected his guilty mind iii. presence of semen on the 'Chaddi' (underwear) of the appellant; iv. that the accused made a query from PW-5 Kalu Ram and PW-9 Santosh about the punishment in such cases and this reflected his guilty mind iii. presence of semen on the 'Chaddi' (underwear) of the appellant; iv. the presence of B-Group human blood on 'Chaddi' of the accused tallied with blood group of the deceased; v. false explanation given by the accused that he was on duty at Moti-Talkies on 18th and 19th March, 1991; vi. that the accused fled away from the town of Kotputli and was arrested at Behror. 10. As mentioned earlier, the fate of this case depends entirely on circumstantial evidence. It is now well settled that before a Court can act on circumstantial evidence, the circumstances proved must be complete and of a conclusive nature so as to be fully inconsistent with the innocence of the accused and are not explanable by any other hypothesis except the guilt of the accused. 11. Mr. A.K. Gupta, learned counsel appearing for the accused-appellant, relied upon a catena of decisions of the Apex Court and this Court to lay emphasis on the condition to be fulfilled by the prosecution to establish the guilt against an accused on circumstantial evidence. No useful purpose shall be served to refer all these judgments, but, we would like to refer to two decisions of the Apex Court in Sharad Birdhi Chand Sarda v. State of Maharashtra, (1984) 4 SCC 116 and Joharlal Das v. State of Orissa, AIR 1991 SC 1388 . 12. In Sharad Birdhi Chand's case (Supra), after making a close analysis of some decisions of the Apex Court it was observed that following conditions must be fulfilled before a case against an accused can be said to be fully established : 1. the circumstances from which the conclusion of guilt is to be drawn should be fully established; 2. the facts so established should be consistent with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved; and 5. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved; and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 13. In Joharlal Das v. State of Orissa , (Supra), it has been held "The Circumstantial evidence in order to sustain conviction must satisfy three conditions (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. Further in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused." 14. In the background of legal position as expounded above, it is to be decided whether the prosecution has succeeded in proving the guilt against the appellant ?Circumstance No. 1 15. Prosecution has examined PW 6 Amin and PW 7 Kumari Shalu, a girl of 4 years to prove the circumstances of last seen. However, PW. 6 Amin has not supported the prosecution version and we have no hesitation to exclude his testimony after going through it. The statement of Kumari Shalu was recorded in Court on March 23, 1992, i.e. after one year of the occurrence. On the day of her examination in Court she was four years old, as such, she was only three year old at the time of occurrence. It is impossible for a girl of three years to remember any fact for one year however significant that might be. On the day of her examination in Court she was four years old, as such, she was only three year old at the time of occurrence. It is impossible for a girl of three years to remember any fact for one year however significant that might be. Kumari Shalu has stated that she had gone to the shop of one Gona for purchasing balloons alongwith Kumari Sona and her cousin sister Phugla. At that time Kumari Sona told her that she would go to her uncle and they went to the shop of Gona. While returning, a boy met them on the way who asked Kumari Sona to wash her feet which were got smeared with mud. He took Kumari Sona to his house for cleaning her feet, but she returned home after waiting for Sona for some time. This statement, otherwise also, is so vague that it does not prove firmly that the appellant had taken Kumari Sona to his house immediately before her death. Then there is no evidence on record that she was murdered in the house of appellant. In the absence of this evidence, even if we accept her statement that Kumari Sona had gone with the appellant to his house for washing her mud smeared feet, it could hardly be an incriminating circumstance unless it was proximate with the time and place of her death. There is also no evidence on record to show that Kumari Sona was not seen alive after she had gone with the appellant to wash her feet. Thus, on critical scrutiny of the evidence. of Kumari Shalu it is difficult to believe her testimony with several infirmities narrated above. Hence, Circumstance No. 1 is not proved and it is excluded from consideration.Circumstance No. 2 : 16. Two witnesses, namely P.W.5 Kalu Ram and P.W. 9 Santosh have been examined to prove this circumstance. P.W. 5 Kalu Ram has stated that 2-3 days after the occurrence, he and his friend Santosh had gone to Hira-Moti Talkies to see a movie from 3 p.m. to 6 p.m. The appellant met them there and enquired about the punishment that could be awarded to an offender in a case of the present nature where a girt was raped and murdered. On this query he replied that he had no concern with it as he was engaged in his own business, but, his friend Santosh replied that punishment could be of 20 or even 40 years of life imprisonment. Thereafter, they went in Cinema hall to see the movie. He also stated that at the time of making query there was no facial change of the appellant. In other words, he was in a normal condition. In cross-examination he further stated that the appellant resided in his neighbourhood and they were acquainted with each other but having no intimacy. He, then, stated that except the above, the appellant did not have any such talk with him and he narrated the above fact to the police after 2-3 days. PW.9, Santosh, however, did not support the prosecution case and he was declared hostile. Thus, to prove circumstance No. 2, there remains the sole testimony of P.W.5, Kalu Ram.After carefully considering the evidence of Kalu Ram, I am of the view that if such query was even made by the appellant, it could hardly lead to any inference towards a guilty mind. From the statement of Kalu Ram it transpires that the deceased Kumari Sona, the appellant and P.W. 5 Kalu Ram resided in the same locality and every-body knew of the ghastly incident of rape and murder of Kumari Sona. Hence, such query could be made out of anxiety by any person of the locality. People may have anxiety to know about the punishment that could be awarded to the wrong-door of such gruesome offence. Such query could be made innocently by any person of the locality and the learned trial court committed an error in treating this circumstance as an incriminating one against the appellant. Further, the evidence of Kalu Ram shows that the appellant had no facial change or disturbed mind when this query was made by him. The presence of the appellant at Moti Cinema hall was quite natural as he was working there. Though, it is doubtful that such a query was in fact made by the appellant from the witnesses Kalu Ram and Santosh, I am of the opinion that such query even if made by the appellant did not indicate his guilty mind. This circumstance, therefore deserves to be excluded.Circumstance No. 3 : 17. The Investigating Officer (PW. 21) has stated that on appellant's information Ex. This circumstance, therefore deserves to be excluded.Circumstance No. 3 : 17. The Investigating Officer (PW. 21) has stated that on appellant's information Ex. P-23, a 'Chaddi' and 'Baniyan' were recovered from a dried well and they same were seized vide memo Ex. P 24.The report of Forensic Science Laboratory (in short FSL) Ex. P 27, showed that human semen was detected on 'Chaddi' while no semen was detected on 'Baniyan' or newspaper. Another report of FSL (Ex. P 28) showed that no semen was detected in vaginal swab, vaginal smear and 'Kurta' or Kumari Sona. The above articles, seized during investigation, were neither exhibited nor identified by any witness in the Court. The appellant was a grown up young man of 22-24 years of age, from dried stain of semen on his under-wear no compelling inference can arise that the stain was caused during the course of the sexual assault committed by him on the girl. In normal course also semen could be found on the under-wear of a grown-up young man. A similar view has been taken by the Apex Court of the Country in Shankar Lal Gyarsi Lal Dixit v. State of Maharashtra, AIR 1981 SC 765 . In that case also the accused was facing the charge that he committed rape upon a girl of five years and then murdered her.Circumstance No. 4 18. Circumstance No. 4 has been wrongly relied upon by the prosecution for conviction of the appellant. As per the prosecution case, a 'Chaddi' (UNDER WEAR) and a 'Baniyan' were recovered from a dry well on the information of the appellant and they were seized vide memo Ex. P 24. Vide F.S.L. Report, Ex. P 30 human blood of 'B' group was detected on the 'Chaddi' and blood of the same group was also detected on the clothes, vaginal swab and vaginal smear of the girl. On behalf of the State, it was emphatically contended that presence of human blood of 'B' group which tallied with the blood group of the girl was telling conclusive circumstance to prove the guilt of the appellant. 19. As stated earlier, the 'Chaddi' and Baniyan' seized by the Police during investigation were not produced in the trial Court nor these articles were exhibited. Further, no evidence has been led that these articles belonged to the appellant. The articles have not been got identified by any witness. 19. As stated earlier, the 'Chaddi' and Baniyan' seized by the Police during investigation were not produced in the trial Court nor these articles were exhibited. Further, no evidence has been led that these articles belonged to the appellant. The articles have not been got identified by any witness. Further, the 'B' group blood is not uncommon and in the instant case, no effort was made by the prosecution to know whether the blood of the appellant was of the game blood group or not. This circumstance may be a strong incriminating circumstance, but it alone could not be of a conclusive nature. In the facts and circumstances of the case, no inference of conclusive nature can be drawn that the appellant raped and murdered Kumari Sona. in Shankar Lal's case (supra) human blood of B-group was found on the pant of the accused and the same blood group was of the-deceased, but in the opinion of their Lordships, no compelling inference could be drawn against the accused that the blood stain was caused during the course of rape committed by him on the girl and that probability of two human beings having the same blood group cannot be; ruled out. In view of this, I am not convinced by the argument of the learned Public Prosecutor that conviction of the appellant could be sustained on this circumstance alone.Circumstance No. 5 20. To prove this circumstance, P.W. 3 Pooran Mal has been examined by the prosecution. His statement was recorded in the Court on 23.3.92 wherein he has stated that the appellant was working under him in a Cinema-hall and on 18th and 19th March, 1991 he was on leave as some ceremony was to take place at bride's residence in connection with his betrothal. - In cross-examination he has admitted that no attendance register was maintained by him in this connection. He has also deposed that the appellant was being called by him to work whenever his service was needed for writings on boards. The evidence of this witness is not inspiring at all and hardly assists the prosecution to draw any inference against the appellant. He has also deposed that the appellant was being called by him to work whenever his service was needed for writings on boards. The evidence of this witness is not inspiring at all and hardly assists the prosecution to draw any inference against the appellant. Then, the statement of P.W. 5 Kalu Ram shows that the appellant had met him at Moti Cinema Talkies 2-3 days after the occurrence which means that he did not flee away.Then, P.W. 8, Manoj has testified about ceremony at the residence of bride's house in connection with her betrothal with the appellant. This witness has also stated that there was no gloomyness on the face of the appellant at that time. His testimony proves that no abnormal sign was visible on appellant's face at that time in connection with his betrothal some ceremony had taken place at bride's house which was attended by him. Hence, if the appellant had taken leave for two days on 18th and 19th March, 1991 from his employer it was not without any purpose and no inference can be drawn from it.Then, from denial of facts by the appellant in his statement under Section-313 Cr.P.C about his absence from duty on 18th and 19th March, 1991, no inference could be drawn against him. It is well settled that prosecution must stand or fall on its own legs. It cannot derive any strength from any weakness of the defence. When various links in chain are in themselves incomplete, then a false plea or a false defence may (sic Ed.) be called into aid to lend assurance to the Court. In other words, before using it as an additional link it must be proved that all the links in chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity in the prosecution case, the same could be cured or supplemented by false defence or a plea which is not accepted by the Court (see Sharad Chand Birdhi Sarda's case).Hence, the above circumstance relied upon by the prosecution has no relevance as a link to connect the appellant with the crime.Circumstance No. 6 : 21. After going through the entire evidence I find that this circumstance is not proved at all. There is no evidence on record that the appellant had fled away after incident from the town of Kotputli. After going through the entire evidence I find that this circumstance is not proved at all. There is no evidence on record that the appellant had fled away after incident from the town of Kotputli. On the contrary, the evidence of P.W. 5 Kalu Ram and PW.8 Manoj is to the effect that he was in the town of Kotputli and was performing his work in a normal way. No inference could be drawn against the appellant by the mere fact that he was arrested in the town of Behror which is hardly at a distance of 30-35 Kilometers from Kotputli. Then this circumstance has not been put to the appellant in his statement under section-313 Criminal Procedure Code No circumstance in respect of which an accused was not examined under Section 313 Criminal Procedure Code can be used against him and this is a settled proposition of law now. This view was taken by the Apex Court as back as in the year 1953 in the case of Hate Singh Bhagat Singh v. State of M.P., AIR 1953 SC 468 and a catena of subsequent decisions. In Shambhu Balu Chaugula v. State of Maharashtra, (1976) 1 SCC 438 , the Apex Court of the country has held : "The fact that the appellant was said to be absconding not having been put to him under Section 342 (now 313) Criminal Procedure Code could not be used against him." This circumstance, therefore, has to be ignored safely. 22. Thus, a critical scrutiny of the circumstantial evidence, as discussed above would show that the only circumstance proved against the appellant is the presence of a stain of semen and blood on his 'Chaddi' (Under-wear) and that the blood was of B-group. This circumstance alone could hardly lead to irresistible conclusion that the appellant committed rape and then murdered Kumari Sona. No compelling inference can arise that the stain of semen and blood on the under-wear of the appellant was caused during sexual intercourse with the girl. The prosecution has, therefore, failed to prove its case against the appellant beyond reasonable doubt and the appellant deserves to be acquitted.The reference for confirmation of death sentence made by the learned Additional Sessions Judge is therefore declined and the appeals filed by the appellant are allowed. The prosecution has, therefore, failed to prove its case against the appellant beyond reasonable doubt and the appellant deserves to be acquitted.The reference for confirmation of death sentence made by the learned Additional Sessions Judge is therefore declined and the appeals filed by the appellant are allowed. The judgment of the learned Additional Sessions Judge is set aside and the appellant is acquitted of all the charges. He be released and set at liberty forthwith if not required in any other case. 23. Gyan Sudha Misra, J. - Having gone through the evidence on record in support of the prosecution case. I have not been able to persuade myself that the finding can be recorded against the prosecution case so as to justify an order of acquittal in favour of the accused-appellant. It is no doubt true that in a case of circumstantial evidence, the chain of events should be so inextricably linked with each other that it should conclusively point to the guilt of the accused, but judicial precedents are not wanting where convictions are based on the basis of a single piece of evidence provided that it is weighty and conclusive. In my opinion, the instant matter is one such case where the conclusive evidence against the accused is surrounded by corroborative evidence. Accordingly, I record the reasons which appeal to me, thus, respectfully dissenting from the judgment and order of learned brother Tibrewal J. However I refrain from narrating the case of the prosecution along with the circumstantial evidence once again, as I feel that no useful purpose will be served by reiterating them herein.2. Thus, recapitulating the prosecution case and the circumstantial evidence narrated previously in the judgment and order of Hon'ble Tibrewal J., the most incriminating circumstance, in my opinion, against the accused-appellant is the recovery of under-wear and baniyan (Ex. P24) at the instance of the accused-appellant himself in presence of PW/19 Mali Ram on which stains of semen and blood have been found which was sent to the Forensic Science Laboratory and as per its report vide Ex. P/30 human blood of B/group was found on the 'chaddi' and blood of the same group was detected on the clothes, vaginal swab and vaginal smear of the deceased girl. P/30 human blood of B/group was found on the 'chaddi' and blood of the same group was detected on the clothes, vaginal swab and vaginal smear of the deceased girl. From this report of FSL, the obvious inference which comes out is that the blood found on the under-pant of the accused was the blood of the deceased girl Sona. It may be relevant to state herein that the Advocate for the defence refused to cross-examine the prosecution on the FSL report, although, such an opportunity was granted to him. In my opinion when the under-wear and baniyan were seized on information furnished by the accused in presence of independent witness PW/19, Mali Ram and thereafter it was sent to the Forensic Science Laboratory for report and the defence counsel refused to question the correctness of the FSL report, it cannot, now, be stated by this Court that the seized articles were not exhibited, if admittedly it was sent to the Forensic Science Laboratory which sent its report which has not been questioned by the defence.3. It is also undoubtedly true that in the case of Shankar Lal Gyarsilal Dixit v. State of Maharashtra, reported in AIR 1981 SC 765 , their Lordships of the Supreme Court have been pleased to observe that mere presence of blood on the underwear of the accused is not sufficient to prove the guilt of the accused in a case under Section 376, IPC but, in my opinion, the facts of the said case are totally different from the case which is before us. It the case of Shankar Lal Gyarsi Lal Dixit (supra) recovery of the underwear was alleged to have been made from under the pillow of the accused where he was sleeping and that too just near the place of occurrence. Under that circumstance along with other circumstances, it was inferred therein that it was simply not possible that the accused-appellant would be sleeping near the place of occurrence after committing rape and that too keeping the under-wear under his pillow. The presence of the appellant, therefore, in the said case at the place of occurrence and further that the underwear belonged to the accused was found to be extremely doubtful and in such a situation the blood-stains on the underwear was not found to be conclusive evidence regarding commission of the rape.4. The presence of the appellant, therefore, in the said case at the place of occurrence and further that the underwear belonged to the accused was found to be extremely doubtful and in such a situation the blood-stains on the underwear was not found to be conclusive evidence regarding commission of the rape.4. But, it the instant case the recovery of underwear and 'Baniyan had been made from a dry well which well was covered and the articles were wrapped in a newspaper bearing the date of occurrence i.e. 18.3.1991. The well is located at some distance of the house of the accused and this recovery was made on the basis of the information furnished by the accused himself in presence of PW-19-Mali Ram which recovery is fully admissible under Section 27 of the Indian Evidence Act. The defence has not cross-examined PW-19-Mali Ram nor the Investigating Officer that this recovery was not made after the information was furnished by the accused and there is also no reason to infer that Mali Ram had any enmity with the accused so as to depose falsely. PW-19 Mali Ram has also not been cross-examined or behalf of the accused on the point of enmity and thus there is sufficient material on record to infer the underwear belonged to the accused-appellant. It may further be added that if the recovery of the underwear and Baniyan was made from a dry well which was also covered, the same could be possibly recovered only after the police got the clue and the said clue was furnished vide the confessional statement of the accused cannot be doubted without any reason. Thus there is no escape from the conclusion that the underwear and 'Baniyan' on which there were blood-stains and stains of semen, belonged to accused which could not possibly have been recovered without the information furnished by him.5. Now if the underwear belongs to the accused and the blood-stains have been found on it, which match with the blood group of the deceased-Sona, it cannot be brushed aside lightly on the ground that the same has not been tallied with the blood group of the accused. Now if the underwear belongs to the accused and the blood-stains have been found on it, which match with the blood group of the deceased-Sona, it cannot be brushed aside lightly on the ground that the same has not been tallied with the blood group of the accused. In my humble opinion, if the blood in question found on the underwear has not been matched with the blood-group of the accused, no adverse inference can be drawn against the prosecution case for I cannot figure out even remotely how the blood of the accused would come out even if he has committed sexual assault on the helpless victim who was a girl of only 5 years of age as she obviously would not have been in a position to retaliate the heinous assault on her so as to conclude that the accused was hurt in any manner, as a result of which it could be inferred that the deceased would have sustained any injury from where the blood was most likely to come out. Therefore, in my opinion, merely because the blood-stain found on the underwear, have not been matched with that of the accused, no benefit can be given to the accused in this regard. Therefore, I find force in the submission of the learned Public Prosecutor that this single circumstance regarding presence of blood on the underwear of the accused which matches with the blood group of the accused is a most weighty circumstance and forceful enough to hold that the accused committed rape on the deceased girl.6. In this regard it may further be stated that there is overwhelming corroborative circumstantial evidence in support of the conclusive evidence discussed here in above against the accused-appellant proving his heinous action. The accused according to PW-7-Kr. Shalu was last seen in the company of the accused when he took the little girl-Sona in his house on the pretext of getting her feet washed which were smeared with mud as she had fallen near the house of the accused. The accused according to PW-7-Kr. Shalu was last seen in the company of the accused when he took the little girl-Sona in his house on the pretext of getting her feet washed which were smeared with mud as she had fallen near the house of the accused. PW-6-Amin although has been declared hostile by the prosecution, it is clear from the perusal of his evidence that although he denied Sona being taken to the house by the accused but he could not specifically deny that he stated so before the Police when his statement was recorded under Section 161 Criminal Procedure Code The accused however, has denied his presence in his. house on the date of the occurrence and has taken the plea of alibi by stating that he was on duty in the 'Heera Moti' Cinema House at Kotputli where he was employed as a painter but his plea of alibi has been negatived by no less a person than his employer PW-3-Puran Mal who has stated that he was on leave the said date from which the inference in a case of circumstantial evidence can safely be drawn that the accused was over-anxious to hide his presence in his house where he was alone as all the members of his family had gone to a neighbouring township regarding his engagement ceremony. If the accused was present in the house he could have stated that after washing the feet of the deceased girl-Sona he left for such place or could have stated that she left his house after getting her feet washed. But instead he resorted to make out of plausible defence in support of his plea of alibi which cannot be sustained in view of the evidence of PW-3-Puran Mal, the employer of the appellant. The plea of alibi that he was on duty is falsified by the evidence of PW-8-Manoj also who stated that the accused was in the house after he returned from the engagement ceremony. Even if it be accepted that the appellant was not employed in the Cinema Hall on a regular basis, but the fact remains that according to the accused himself he was present in the Cinema Hall on duty which fact does not stand corroborated by the evidence of PW-3 + PW8. Even if it be accepted that the appellant was not employed in the Cinema Hall on a regular basis, but the fact remains that according to the accused himself he was present in the Cinema Hall on duty which fact does not stand corroborated by the evidence of PW-3 + PW8. The gaping hole, therefore, in the defence plea of alibi is that if the appellant was not in the Cinema Hall on the fateful day the inference will have to be drawn that he was present in his house as stated by PW-7-Kr. Shalu and PW-6-Amin.7. Coupled with the aforesaid circumstance of the accused last seen in the company of the deceased Sona, as per the evidence of PW-7-Kr. Shalu and PW-6-Amin, the mental state of the accused-appellant after commission of the heinous crime as deposed by PW5 and PW9 also highlights on the pangs of guilt of the accused. It is no doubt true that the circumstance of this nature cannot by itself be said to be having any force of evidence against the accused-appellant but the evidence of this nature definitely can throw sufficient light on the psyche of the accused after commission of the crime and in a case of circumstantial evidence they can certainly be treated as a evidence having corroborative value. In this context, I feel it is worthwhile to refer to the decision of the Supreme Court reported in the matter of Sarad Chand Birdhi v. State of Maharashtra, AIR 1984 SC 1632 where the learned Judges had considered a bunch of letters in detail written by the deceased in order to arrive at a finding as to whether the deceased lady committed suicide or she was killed by her husband and the letters were used as a part of the evidence to conclude that she committed suicide. From this it can be inferred that in appropriate cases based on circumstantial evidence the mental state of either the accused or the deceased can certainly be gathered even from incidental sources of evidence to arrive at a correct finding otherwise there would have been no reason for the learned Judges to scrutinise those letters which were written much prior to the occurrence. Thus the evidence, even though they may not be in the realm of concrete evidence, they cannot be totally ignored, more so in a case of circumstantial evidence.8. Thus the evidence, even though they may not be in the realm of concrete evidence, they cannot be totally ignored, more so in a case of circumstantial evidence.8. Although in a case based on circumstantial evidence the chain of events should be so interlinked which point to the guilt of the accused with utmost certainty but it cannot be interpreted so as to infer that in all cases... there are bound to be plethora of circumstances in order to hold that the person is guilty because even a single circumstance can be said to be a conclusive evidence in appropriate cases regarding commission of the offence by the accused. For example, in a case which is based solely on the dying declaration even before a Police Officer, has been held to be conclusive against the accused without any of other incidental circumstances, although there are numerous formalities which are required to be carried out while recording a dying declaration. So also in a case of circumstantial evidence although normally it requires a chain of circumstances so as to hold an accused guilty, but if the chain is not of a particular length, that does not mean that conviction cannot be based on a sole circumstance howsoever weighty that may be. What is important therefore is that the courts should be crafty (sic) in order to separate grain from the chaff so that the inessential may not prevail over the essential : 1. In the case in point, the fact that the accused was last seen in the company of the deceased. 2. The fact that his presence in the house has been attempted to be concealed by taking false plea of alibi which, in my opinion, is palpably false and I prefer to disagree with the finding of Brother Justice Tibrewal. 3. The fact that the underwear and `baniyan' was recovered from a dry well which was covered and could not possibly have been searched without the clue furnished by the accused. 4. And, yet another piercing evidence that the underwear of the accused which had blood stain matched with the blood group of the deceased which cannot be said to be a pure coincidence. 5. The corroborative circumstance regarding the mental state of the accused as pointed out by PW/5 Kalu Ram and PW/9 Santosh. 6. 4. And, yet another piercing evidence that the underwear of the accused which had blood stain matched with the blood group of the deceased which cannot be said to be a pure coincidence. 5. The corroborative circumstance regarding the mental state of the accused as pointed out by PW/5 Kalu Ram and PW/9 Santosh. 6. The fact that the accused absconded from the place of occurrence and was arrested at Behror can certainly be said to be a strong chain of circumstances in my opinion pointing conclusively to the guilt of the accused against whom the inference can surely and certainly be drawn that the rape was committed on the helpless victim and thereafter, she was murdered after which her body was thrown into the open plot. 9. I would further like to add that in a case of rape under Section 376 I.P.C. and that too on a girl aged 5 years, it cannot possibly be conceived that there would be a horde of circumstances and the recovery of the underwear at the instance of the accused in the presence of an independent witnesses PW-19-Mali Ram on which blood group is matching with the blood of the deceased girl is a conclusive evidence against the accused. Under the circumstance, the fact that the seized underwear and Baniyan belonged to the accused cannot be disbelieved as I am aware of cases were even a split of hair of the deceased found on the coat of the accused has been found conclusive for upholding the conviction.10. Thus on a consideration of the entire circumstances against the accused, I have no hesitation in upholding the conviction of the appellant under Section 302 and 376 I.P.C. and accordingly, his conviction on both the counts is confirmed. However in so far as the question of sentence is concerned, after having given my anxious consideration to it, I consider it proper to set-aside the death penalty awarded to the appellant and instead direct it to be converted into life imprisonment considering the fact that the accused-appellant does not appear to have committed the crime with premeditation or in a pre-planned manner. The crime appears to have been committed by the appellant in a moment of strong sexual impulse. The crime appears to have been committed by the appellant in a moment of strong sexual impulse. There is also no material to infer that the accused is a hardened criminal so that he would indulge in such crime after serving out his sentence of life imprisonment. The ends of justice therefore, in my opinion would be met if the accused is subjected to undergo life imprisonment as that is most likely to be a sufficient period for him to remorse over the offence committed. The appeal, therefore, against the conviction of the appellant is dismissed but the sentence of death penalty awarded to him is set -aside and is converted into life imprisonment. With this modification in sentence, the appeals are dismissed.ORDER OF THE COURT :In view of the difference of opinion all these matters be placed before Hon'ble the Chief Justice so as to place before another Hon'ble Judge with our opinion as required under section 392 Criminal Procedure Code *******