JUDGMENT A.D. MANE, J.:---The appellant in Criminal Appeal No. 90 of 1997, is the original accused No. 1 in Sessions Case No. 55 of 1996 on the file of the learned IIIrd Additional Sessions Judge, Ahmednagar. He was tried along with his mother for offences punishable under section 363, 376, 302 and 201 either simpliciter or with the aid of section 34 of the Indian Penal Code. The learned Additional Sessions Judge convicted the appellant for the said offence and sentenced him to suffer rigorous imprisonment for five years and to pay fine of Rs. 500/- in default to suffer rigorous imprisonment for one month for offence punishable under section 363 of the Indian Penal Code, to suffer rigorous imprisonment for ten years and to pay fine of Rs. 1,000/- in default to suffer rigorous imprisonment for two months for offence under section 376 of the Indian Penal Code, to suffer rigorous imprisonment for three years and to pay fine of Rs. 300/- in default to suffer rigorous imprisonment for 15 days for offence punishable under section 201 of the Indian Penal Code and to suffer death sentence for the offence punishable under section 302 of the Indian Penal Code subject to confirmation by this Court. The confirmation is registered for confirmation of the aforesaid death sentence. 2. In nutshell the prosecution case is as under : P.W. 10 Shantabai Sansi Pawar along with her son Satish, his wife and their children reside at Ahilyadevinagar, Ward No. 10 at Shrirampur City, District Ahmednagar. On the day of Dipavali, 23rd October, 1985 Shantabai and her son had gone to purchase articles of Pooja and crackers. When they returned to the house after shopping, Nisha, daughter of Satish, aged 3 years, was not found in the house. Shantabai and others, therefore, searched for Nisha but in vain. Nisha was not found and ultimately a report at Exh. 28 was lodged by Shantabai at City Police Station, Shrirampur. On the basis of the said report, P.W. 3 Baburao Saudagar registered the Missing Case No. 63 of 1995 on 24th October, 1995, at 11.15 a.m. On 24-10-1995 P.W. 6 Tanhabai Deokar while cutting grass in her field saw the dead body of one girl lying in the sugarcane crops. Tanhabai, therefore, narrated the said fact to her son P.W. 12 Sitaram Deokar, who, in turn, informed the said fact to the police. Tanhabai, therefore, narrated the said fact to her son P.W. 12 Sitaram Deokar, who, in turn, informed the said fact to the police. The police first registered the Accidental Death Case No. 67 of 1995 on the basis of his information (Exhibit 34). 3. P.W. 3 Saudagar Police Head Constable was entrusted with the duty of making inquiry in the accidental death case. Before he could proceed, P.W. 10 Shantabai came to the police station to make inquiry about the missing Nisha. It appears that she came to know about the rumours of finding a dead body of one girl in the sugarcane crops in the field near canal. P.W. 3 Saudagar took Shantabai to the spot along with other persons where the dead body of the girl was reported to be lying. There P.W. 10 Shantabai identified the dead body as that of her grand-daughter Nisha. Inquest panchanama (Exh. 11) was prepared with the assistance of P.W. 1 Ashok Lahunde, panch. It was noticed that there were several injuries on the dead body of the girl. One empty fertilizer's bag stained with blood was also found on the spot. It was attached under the panchanama (Exh. 12). Then the dead body of Nisha was sent to the Shrirampur Hospital for post mortem examination. 4. P.W. 2 Dr. Anil Shinde, who conducted the autopsy on the dead body of Nisha, found the external injuries as follows : 1. Over face C.L.W. on upperlip on both sides ½" x ½" in size and reddish in colour. 2. Injuries over head Contused abrasion on right side of forehead 1½" x 1". 3. A large haemotoma over right side of frontal region, reddish in colour. 4. Fracture of right frontal and right parietal bones having reddish margin. On internal examination he noticed the following injuries : 1. Both labia majora were oedematous and reddish in colour. 2. Clitoria was oedematous, reddish in colour and has abrasion over it. 1/2 cm. x 1/2 cm. 3. Hymen was torn, vagina was also torn on anterior, posterior and lateral surfaces, over posterior. 4. Aspect vagina was found to be torn and the wall between vagina and rectum was also torn. This injury was reddish in colour and blood clots were seen. In the opinion of Dr. 1/2 cm. x 1/2 cm. 3. Hymen was torn, vagina was also torn on anterior, posterior and lateral surfaces, over posterior. 4. Aspect vagina was found to be torn and the wall between vagina and rectum was also torn. This injury was reddish in colour and blood clots were seen. In the opinion of Dr. Shinde, the cause of death was due to massive cerebral haemorrhage due to head injury and she was raped before death as fortified by the post mortem examination notes (Exhibit 50). The dead body of deceased Nisha was brought home for funeral, when, it is the case of the prosecution that two boys P.W. 7 Asif Fakir and P.W. 8 Ramzan rushed to the house of P.W. 10 Shantabai and narrated to her that they saw the appellant carrying a bag on his shoulder and they had noticed that blood was dropping from the bag. On hearing them Shantabai first went to the house of the appellant but he was not found there. She, therefore, went to the City Police Station and lodged her complaint as the first information report, Exhibit 28, suspecting that the appellant with a view to commit rape on Nisha took her from her house and committed rape and then caused head injury by throwing something on her head, killed her and took the dead body in the gunny bag with a view to screen the evidence to disappear and threw the dead body in the sugarcane crop field. It was also alleged that the appellant's mother Sakharabai washed the blood-stains in her house with a view to screen the real offender and to disappear the evidence of the crime. 5. Crime No. 285 of 1995 therefore came to be registered for offences under sections 363, 376, 302, 201 read with section 34 of the Indian Penal Code. That crime was investigated by P.W. 13 Nivrati Khedkar, Police Inspector. In the course of the investigation the Investigating Officer Shri Khedkar first went to the house of the appellant and drew panchanama Exhibit 26 with the assistance of P.W. 9 Raju, panch. He collected scrapping of the wall, a piece of newspaper and a piece of quilt which, according to the prosecution, were stained with blood from the house of the appellant. He collected scrapping of the wall, a piece of newspaper and a piece of quilt which, according to the prosecution, were stained with blood from the house of the appellant. On the same day at about 5 p.m. i.e. on 24-10-1995 the appellant and his mother were arrested under the arrest panchanama, Exhibit 20. 6. The Investigating Officer attached the frock of chocolate colour stained with blood under the panchanama, Exhibit 21, which was on the dead body. 7. It has been alleged that during the investigation the appellant showed his willingness and readiness to produce the grinding stone i.e. Pata and his clothes. Therefore, in the presence of panch P.W. 11 Eknath and another panch, the statement of the appellant in the form of Memorandum (Exhibit 31) was recorded and according to the prosecution, the recovery of the grinding stone, Article 7, stained with blood was produced by the appellant from the heap of grass at a close distance from his house. The appellant also made discovery of full pant, (Article 9) under-pant (Article 10) and underwear (Article 11) from the field at the close distance from the place from where the dead body of deceased Nisha was taken. 8. It has been alleged that the appellant was examined by Dr. Shinde (P.W. 2) and he noticed some abrasion on both the knees of the appellant as per the injury certificate (Exhibit 16). It may be stated that during the investigation blood samples of deceased Nisha as well as of the appellant were obtained but neither Dr. Shinde nor the Investigating Officer corroborated about taking of the blood samples either of the appellant or the deceased Nisha. It is, however, alleged that along with other articles the blood samples of deceased Nisha and that of the appellant were sent to the Chemical Analyser who submitted his report at Exhibits 41 and 42 showing that the blood group of deceased was 'B', whereas, blood group of the appellant was 'AB' and that human blood was detected on (1) gunny bag (Article 1), (2) Wall scrapping (Article 2), (3) Piece of quilt (Article 4), (4) Piece of newspaper (Article 5), (5) frock of the deceased (Article 6), (6) grinding stone, (Article 7), (7) dry leaves (Article 8), (8) full pant (Article 9), (9), under pant, (Article 10) and (10) under-wear (Article 11). In case of under wear (Article 10) blood of Group 'AB' with semens was detected but in the case of gunny bag human blood of 'B' group was detected. In case of wall scrapping blood group could not be detected though it was found to have human blood. Similarly in the case of piece of quilt only human blood was detected without any blood group. In the case of newspaper blood group was not detected. In the case of crop, blood group 'B' was also detected as well as on the grinding stone. In case of dry leaves blood group could not be detected. On the full pant, blood group 'B' was detected. On the under-wear blood group 'B' was not detected. On the Jangayya blood group 'B' was detected. 9. On the completion of the investigation the charge-sheet was filed against the appellant and his mother and they were tried before the learned trial Judge. 10. The defence of the appellant and his mother was one of total denial. They pleaded not guilty to the charge. It was their say that they have been falsely implicated. At the trial the prosecution examined in all 13 witnesses. The prosecution sought conviction of the appellant and his mother solely on the circumstantial evidence. The learned Additional Sessions Judge came to the conclusion that the appellant was guilty of the offences under sections 363, 376, 302, 201 read with section 34 of the Indian Penal Code and convicted and sentenced him as aforesaid. However, the mother of the appellant was acquitted. The learned Additional Sessions Judge took 6 circumstances into consideration to prove the complicity of the appellant in the crime and referred to in the impugned judgment. 11. At the outset it may be stated that Mr. S.C. Bora, learned Counsel for the appellant took us through the entire evidence in regard to the appellant on the record of the case. In support of the appeal Mr. Bora learned Counsel made a great deal of criticism against the approach of the learned trial Judge in dealing with the prosecution evidence which is purely of circumstantial in nature. S.C. Bora, learned Counsel for the appellant took us through the entire evidence in regard to the appellant on the record of the case. In support of the appeal Mr. Bora learned Counsel made a great deal of criticism against the approach of the learned trial Judge in dealing with the prosecution evidence which is purely of circumstantial in nature. The learned Counsel contended that the learned trial Judge has fallen into an error in not properly scanning the material evidence before recording the conviction, as to whether the circumstances relied on by the prosecution are either proved or sufficient to sustain the conviction from the offences with which the appellant was charged. In this context, the learned Counsel argued that the learned trial Judge wrongly kept reliance on the evidence of the child witnesses. Their evidence is unworthy of credence and suffers from tutoring. Moreover not a single incriminating circumstance can be said to have been proved in the evidence of these witnesses. Lastly the learned Counsel argued that the recovery evidence relied on by the prosecution also suffers from the legal infirmity and none of the statements alleged to have been made by the appellant was admissible in evidence. The learned trial Judge, therefore, wrongly convicted the appellant by taking into account the circumstantial evidence which does not even satisfy the test of reliability. The conviction, therefore, cannot stand in law and in consequence the appellant is entitled to acquittal 12. Mr. A.M. Kanade, learned Public Prosecutor, on the other hand, made emphasis on the evidence of the child witnesses to support the circumstance that the appellant showed his abnormal conduct in hiding the shirt stained with blood when it was seen by the witnesses while returning after throwing gunny bag which he was carrying on his shoulder and from which the blood was seen dropping. The learned Public Prosecutor also submitted that there are other circumstances indicating the culpability of the appellant in the crime, for instance, the discovery of the blood-stained grinding stone which he had concealed in the grass near about his house and secondly the discovery of the blood-stained clothes of the appellant and clothes of deceased also concealed in the field near about the place where dead body of deceased was found. It is submitted that the discovery evidence furnishes a sure link in the chain of circumstances indicating that it was the appellant and none else who was the perpetrator of the crime. Thus, the learned Public Prosecutor supported the findings of the learned trial Judge to sustain the conviction of the appellant. 13. In the first place, we may mention that there is no quarrel that the girl Nisha died a homicidal death. P.W. 2 Dr. Shinde who performed the autopsy on the dead body of deceased Nisha On 24-10-1995 between 4.15 and 5.15 p.m. deposed that he noticed fracture of right parietal bone besides coverings of brain wear congested subdural and subarachnoid haemorrhage. He also found that there was injury on upper lip on external examination of the dead body he noticed both libia majora were oedematous reddish in colour, hymen was also torn, vagina was also torn on anterior, posterior and lateral surfaces over posterior. Blood cloth were also seen. In the opinion of the doctor, the injuries on the head might have been caused by blunt and hard object. Further in his opinion the deceased died due to shock due to massive cerebral haemorrhage due to head injury. This opinion of the doctor as to the cause of death of deceased thus goes unchallenged. We have, therefore, no hesitation to accept that finding of the learned trial Judge that the deceased died the homicidal death. 14. The only question which requires the consideration is whether the appellant was the perpetrator of the crime. 15. It is common ground that the conviction of the appellant was rested only on the basis of circumstantial evidence. The learned Counsel for the appellant and learned Public Prosecutor for the State pressed into service some of the rulings of the Apex Court in which the principles for evaluating the circumstantial evidence are laid down. We feel that it is not necessary to mention each of those rulings but it is suffice to say that the Supreme Court time out of number observed that while appreciating the circumstantial evidence the Court must adopt a very cautious approach and should record the conviction only if all links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence of the accused is capable of being negatived on the evidence. When a case rests entirely on the circumstantial evidence, such evidence must, therefore, satisfy three tests. Firstly the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. Secondly, these circumstances should be of definite tendency unerringly pointing towards guilt of the accused. Thirdly the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probabilities crime was committed by accused and none else, that is to say, that the circumstances should be capable of excluding any reasonable hypothesis save that of the accused's guilt. 16. Now keeping in view the aforesaid principles we may proceed to deal with the evidence of two child witnesses. P.W. 7 is Asif Fakir Mohd. Pinjari. He is aged 4 years. The second child witness is P.W. 8 Ramzan Yasin. He is 10 years of ago. Both are school going boys. In order to appreciate the evidence of these witnesses it may be stated that the learned trial Judge has put them questions to form an opinion that both these witnesses are able to understand the questions and he was satisfied that these witnesses know the sanctity of oath. Therefore, these witnesses were administered oath. In order to appreciate the sole testimony of these two child witnesses we may, however, refer to the topography of the scene of offence i.e. the house of the appellant vis-a-vis the house of P.W. 10 Shantabai grand-mother of deceased Nisha. P.W. 9 Raju is the panch to the panchanama, Exhibit 26 of the place of scene of offence namely; the house of the appellant. In the cross-examination it has been clearly stated that towards East at a distance of 10 ft. there is house of Kaushalyabai Vyawahare, next to that house at a distance of 20 ft. there is house of. P.W. 10 Shantabai where the deceased was residing. Towards West of the house of the appellant there is open ground. On the Southern portion there is also open ground. On the Northern side at a distance of 500 ft. there is a canal, running East-West and beyond canal at a distance of 1½ furlong there is sugar-cane crops field where the dead body of the deceased Nisha was found. On the Southern portion there is also open ground. On the Northern side at a distance of 500 ft. there is a canal, running East-West and beyond canal at a distance of 1½ furlong there is sugar-cane crops field where the dead body of the deceased Nisha was found. Moreover, the other panch to the discovery evidence i.e. P.W. 11 Eknath stated that on the Northern side of the house of the appellant there is house of one Bhaiya. Moreover, at a distance of 25 ft. there are other houses including the house of the mother and the father of deceased Nisha. Not only that but two more houses are situated in between the house of the appellant and the house of the deceased Nisha. These two houses are towards Eastern side of the house of the appellant. This is a Zopadpatti area. On the Western side of the open space in front of the house of the appellant there are some Babul trees. 17. This evidence clearly indicated that the house of the appellant is surrounded by the several houses in the locality. 18. It may be stated that it is the specific case of the prosecution that the place of the scene of offence was the house of the appellant. Unfortunately neither P.W. 7 Asif nor P.W. 8 Ramzan stated as to where they actually reside or whether their houses are situated in the same locality or elsewhere in the Shrirampur city. They have given their vague addresses as residents of Shrirampur. 19. Quite apart they stated that they were present in the open space near the canal. The reason for their presence at that site was that they were lighting crackers in the open ground as it was a day of Dipavali festival. There is nothing in their evidence that any other children from the Zopadpatti area or nearabout had also come and were playing or lighting the crackers on that day evening. It is common version of these two witnesses that when they were lighting crackers in the open ground that they saw the appellant going towards the canal side. They stated that the appellant was carrying one gunny bag and blood was dropping from the bag. Their version is that some time thereafter the appellant was seen coming towards his house. They saw that his shirt was stained with blood. They stated that the appellant was carrying one gunny bag and blood was dropping from the bag. Their version is that some time thereafter the appellant was seen coming towards his house. They saw that his shirt was stained with blood. At that time, according to them, when the appellant saw them he removed his shirt and kept it in his pocket. It is their version that thereafter both of them went to their respective houses. These witnesses stated that on the next day they learnt the news about missing of Nisha. P.W. 7 Asif stated that "on the next day news about missing of a girl was spread. At that time he told the mother of the girl that accused No. 1 Bharat was carrying her girl towards canal side". P.W. 8 Ramjani, however, stated that on the next day there was talk about missing of Nisha and therefore, "We told the mother and father of Nisha that the accused No. 1 Bharat had carried Nisha". 20. The evidence of these two witnesses has been criticised at great length. It is true that the evidence of a child witness is notoriously unreliable and as such close scrutiny is called for. This is more necessary when the conduct of the child witness is also abnormal and there are major discrepancies in the story. In the first place it cannot escape from our notice the major circumstance which appears from their evidence is that their version at the trial is self contradictory to what they have stated before the police. For instance they had not stated before the police that they told the mother or father the appellant was carrying the girl towards the canal side. According to them, they saw the accused carrying something in the gunny bag from which blood was dropping. That statement cannot be equated with the statement that the appellant carried the girl in the gunny bag or her dead body was in the gunny bag. It is, therefore, clear that the evidence of these witnesses demonstrates that there is improvement in their initial version. There is another circumstance which can be obtained from their evidence from their cross-examination. They do not admit that any other child from the neighbourhood was also lighting the crackers in the open ground where they were playing. It is, therefore, clear that the evidence of these witnesses demonstrates that there is improvement in their initial version. There is another circumstance which can be obtained from their evidence from their cross-examination. They do not admit that any other child from the neighbourhood was also lighting the crackers in the open ground where they were playing. In other words, they want to suggest or make the Court to believe that except these two children not a single child from the locality had come there to play or light crackers. This is indeed highly improbable. These witnesses do not dispute that there are many houses near about the open ground. It was, therefore, but natural that there would have been more children from the locality in the open ground. The evidence of these two witnesses that they alone were present, therefore also suffers from improbability. 21. There is one more circumstance which throws considerable doubt on their unnatural conduct in not disclosing to their parents what they have seen the appellant carrying the gunny bag or what they have seen when the appellant returned within 15 minutes thereafter. Their evidence shows that they are closely knowing the appellant because they knew that the appellant used to collect scrap material from heaps, fields and other places. He was also collecting bones of different animals. Not only that but according to them, the appellant used to collect scrap materials and bones of the animals in the gunny bag. Perhaps this statement may relieve them from not suspecting the appellant carrying something in the gunny bag from which the blood was dropping. But their further version is that they entertained the doubt on seeing the blood-stains on the shirt of the appellant on his return from the canal side. Therefore, they say that as soon as the appellant saw them he took out his shirt and put it in his pant pocket. Had it been a case that the appellant put his shirt in his pant pocket as it was stained with blood as unnatural to their mind, we fail to understand how these witnesses could not have disclosed this incident to anyone from their house or houses. Non-disclosure of an unnatural thing which they came cross is another circumstance which throws considerable doubt on the veracity of their evidence. 22. Non-disclosure of an unnatural thing which they came cross is another circumstance which throws considerable doubt on the veracity of their evidence. 22. Added to this, there is also a circumstance namely; that their subsequent conduct also does not appear to be natural. It is their plain version that when they learnt about the news of missing of girl Nisha, according to them, on their own they met the mother of the girl and told her that they saw appellant carrying her towards the canal side. Significantly even this aspect has also not been disclosed by the witnesses to any person from their houses. It was highly and inherently improbable for these two boys to approach the mother of the girl and narrate what they have seen. We have already pointed out above that even that version that they disclosed the name of the appellant to the mother of the deceased that the appellant was carrying her girl in the gunny bag had been shown as self-contradictory. This subsequent conduct of the witnesses coupled with other infirmities as noticed in their evidence leaves no room for doubt that the evidence of these witnesses is unworthy of credence. A child witness being of tender age is susceptible to external influence and prone to tutoring. These witnesses are found to have made improvements in the statements made by these witnesses in their examination in-chief under section 161 of the Code of Criminal Procedure and as such tutoring is clearly suspected. 23. There is further discrepancy in the prosecution evidence in regard to the evidence of these witnesses. It is the specific version of P.W. 10 Shantabai that these two witnesses approached her and disclosed what they have deposed to. But there is also clear contradiction about it in their evidence, as, according to them, they made the disclosure of these things only to the mother of girl and never disclosed the incident to PW. 10 Shantabai. The aforesaid infirmities as noticed in the evidence of these child witnesses appear to have been overlooked by the learned trial Judge and he believed their testimony, as in his opinion, these witnesses have no grudge against the appellant. We, however find that the learned trial Judge failed to scrutinise the evidence of these child witnesses and committed an error in accepting their version in support of the prosecution case. We, however find that the learned trial Judge failed to scrutinise the evidence of these child witnesses and committed an error in accepting their version in support of the prosecution case. In this context we may mention that there is missing link in the chain of all the circumstances. The prosecution has not been able to show either by direct or circumstantial evidence that the appellant or his mother took the deceased Nisha on that day evening to their house from the house of P.W.10 Shantabai nor is there any evidence to show that somebody in the locality saw the deceased Nisha going towards the house of the appellant or his mother. Significantly, there is no iota of evidence to show that the appellant or his mother was on visiting terms with PW. 10 Shantabai or the parents of Nisha. There is also absolutely no evidence to show that the deceased Nisha at any time went to the house of the appellant previously. In the absence of any evidence of this kind it was unlikely that the appellant can be said to have taken the girl Nisha to his house on that day evening. This is a clear infirmity or lacuna in the chain of the circumstances of the prosecution evidence. This lacuna in the prosecution evidence does not render any assurance to the testimony of these witnesses. Their version that they saw the appellant taking the girl near the canal cannot be believed in the circumstances of the case. 24. Lastly there is another strong circumstance which justifies the rejection of the sole testimony of these two witnesses off-hand. Their evidence suggests that they could suspect the appellant when they noticed blood stains on his shirt at the time when he was returning from the canal. Significantly the prosecution has not been able to produce the shirt of the appellant which was on his person on that day evening. In the absence of discovery of shirt which was said to have been stained with blood it is also impossible to believe that part of the evidence of these witnesses disclosing abnormal conduct of the appellant at a given time. In the absence of discovery of shirt which was said to have been stained with blood it is also impossible to believe that part of the evidence of these witnesses disclosing abnormal conduct of the appellant at a given time. We may mention at this stage that there is absolutely no independent circumstance to show that the appellant was seen wearing a shirt stained with blood when he was returning from the canal side dropping the gunny bag in the field. 24-A. Quite apart, the learned trial Judge observed that " the child witnesses are natural witnesses and their presence near the canal at the relevant time cannot be doubted". The learned trial judge further observed that "on that day evening of Dipavali festival the appellant was seen near the canal while he was carrying on his shoulder the gunny bag and these witnesses had seen that the blood was dropping from the said bag". According to the learned trial Judge, therefore, the prosecution was able to establish the circumstance that " on that day evening of Dipavali accused No. 1 Bharat was seen near the canal while he was carrying the bag (Goni) on his shoulder and it was noticed that blood was dropping from the said bag." We fail to understand how, assuming that this circumstance was established by the prosecution, it is an incriminating circumstance. The witnesses have admitted that it was a routine job of the appellant to carry bones of the animals in the gunny bags. Therefore, assuming that these witnesses were present and were playing crackers on that day evening in open ground and they have seen the appellant carrying the gunny bag from which the blood was dropping, how it can be connected with the dead body of the girl Nisha. We have shown earlier that the evidence of these witnesses when they asserted that they have seen that the appellant was carrying Nisha is utterly false. Therefore, this circumstance even if it is proved is of no assistance to the prosecution to furnish a link in the chain of the circumstances. 25. Now, we may turn to the discovery evidence. We have shown earlier that the evidence of these witnesses when they asserted that they have seen that the appellant was carrying Nisha is utterly false. Therefore, this circumstance even if it is proved is of no assistance to the prosecution to furnish a link in the chain of the circumstances. 25. Now, we may turn to the discovery evidence. The prosecution wants to rely on the discovery of (1) grinding stone i.e. pata stained with blood and (2) recovery of blood-stained pant, under -wear of the appellant stained with blood, nicker of the deceased stained with blood as alleged to have been produced by the appellant by digging the place where the dead body of deceased Nisha was found on the earlier day. On this point the evidence is that of panch PW 11 Eknath and PW 13 Nivrati Khedkar, Police Sub-Inspector. In this context it is also relevant to note that the grinding stone is usually used in kitchen for grinding purpose. The size of the grinding stone is triangle. Though the prosecution has examined the doctor who performed autopsy on the dead body of Nisha, this article was never shown to the doctor to get his opinion whether the injuries suffered by the deceased girl could be caused by this stone. In the absence of any kind of such evidence it is doubtful if this article can be termed as the article of the offence: 26. Now coming to the recovery evidence P.W. 11 Eknath stated that on 15-10-1995 he acted as panch along with another panch Vithal. Both of them are at the police station and in their presence the appellant was interrogated. He stated that at that time the appellant was present in the police station. According to him, the appellant showed his willingness to show the place where he committed rape on the girl, (2) to show the place where the grinding stone was kept, (3) to show the place where the dead body of the girl was kept and (4) the place where he concealed his blood-stained clothes. According to him, the police prepared the Memorandum in the form of statement of the appellant and that Memorandum is produced at Exhibit 31. He further stated that he along with the police, the appellant and another panch went to the spot where the appellant committed rape. That was the house of the appellant. According to him, the police prepared the Memorandum in the form of statement of the appellant and that Memorandum is produced at Exhibit 31. He further stated that he along with the police, the appellant and another panch went to the spot where the appellant committed rape. That was the house of the appellant. After entering into the house he stated that "we saw some blood-stains on the floor, we noticed that the floor was washed with cowdung". The next version is that the appellant took them outside his house and showed them one place, which was near the house of the appellant. The appellant showed the grinding stone i.e. Pata which was concealed in the grass. That grinding stone was stained with blood. It is Article No. 7. His further evidence is that thereafter the appellant showed them the place where the dead body of the girl was thrown. It was the field of one Deokar. There was sugarcane crop standing in the field. Thereafter the appellant showed them one place. It is his version that "he had buried some clothes in the field of Deokar, he took out the clothes and showed us, the pant, underpant and underwear of the girl. There were blood-stains on the underpant". They are Articles Nos. 9, 10 and 11. He stated that the police made panchanama at Exhibit 32. 27. The Investigating Officer P.W. 13 Nivrati Khedkar in his deposition gave somewhat conflicting statements as to what they have noticed in the house of the appellant. In the first place with reference to the panchanama, Exhibit 26, of the place of scene of offence which he had prepared on 25-10-1995 he stated that "I noticed some blood-stains on the wall of the house of the accused. I collected the said blood-stains from the wall by scrapping the same". Next he gave somewhat different version in his examination-in-chief. In para 5 of his deposition he stated that the appellant took him and the panchas first of all to his house, the appellant entered into his house and "showed us one grinding stone which was kept in the corner of his house" but the Investigating Officer corrects himself after he read the panchanama and stated that "he showed the place of commission of offence of rape". His next version is that "thereafter the accused came out of the house and went near the grass at a distance of 40 to 50 ft. and showed us one grinding stone. (Pata). There were blood-stains on the said grinding stone." His further version is that thereafter the accused took them in the sugarcane crops. The dead body of the girl was searched by the appellant for about 4 to 5 minutes. Lastly he pointed out one place. At that time "I found some blood-stains on one leaf of sugarcane crop." That was attached as Article 8. Then the accused took them at some distance in the said field and showed one place to them. The accused took out some clothes from the earth. The clothes were one pant, one underpant and underwear of small size. There were blood-stains on the full pant and small underwear of the girl. The witness, however, could not state as to what type of stains were on the underpant. According to him, the panchanama was prepared of all these happenings and it is Exhibit 31. 28. It can be said from the evidence of these two witnesses that the prosecution wants to rely on the statement of the appellant in Exhibit 31 which contains the composite statement of facts in regard to the discovery. It is unfortunate that the learned trial Judge failed to consider the requirements of section 27 of the Indian Evidence Act before reading the discovery evidence in the evidence. It is fallacious to treat the "fact discovered" in section 27 as equivalent to the "object produced". The fact discovered embraces the place from which the object is produced and the knowledge of the accused to this and the information given must relate distinctly to the said fact. For instance, the information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of knife. It leads to the discovery of the fact that the knife is concealed in the house of the informant to his knowledge and the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. It leads to the discovery of the fact that the knife is concealed in the house of the informant to his knowledge and the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if the said statement is added by the words "with which I stabbed" those words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. In the present case, the learned trial Judge has not shown the distinct connection between the offence and the thing discovered. We may observe that the connection between the offence and the thing discovered may be established by evidence other than the statement relating to the discovery but that does not exclude the proof of the act by the statement itself. Equally It is important to note that in order to apply section 27 the prosecution must establish that the information given by the accused has led to the discovery of some fact deposed to by him. That means that the discovery of some fact which the police had no previously knowledge from other source and the knowledge of the said fact was derived from the information given by the accused. Moreover, the discovery must be from the place of concealment and not a public place. Keeping in view these aspects in regard to the discovery evidence, let us consider if any of the statements of the appellant which are sought to be relied on by the prosecution can be said to be relevant or can be admissible in evidence. 29. It will be appropriate to refer to the statement of the appellant as per Memorandum Exh. 31. 29. It will be appropriate to refer to the statement of the appellant as per Memorandum Exh. 31. The appellant is said to have made the statement before the panchas in Marathi and it reads as under : "eh Lo[kq'hus o lR; izfrKsoj fuosnu nsrks dh fnukad 23 vkDVksCkj 1995 jksth nqikjh 3-30 ok- Pks lqekjkl vkeps 'kstkjh jkg.kkjh eqyxh ukes fu'kk Ckki lRkh'k iokj o; 3 o"ksZ fgl ifrps jkgrs ?kjkTkoGqu mpyqu usmu ek>s jkgrs ?kjkr eh frps'h T;k fBdk.h TkCjhus laHkksx dsY;k o T;k fBdk.h rhps MksD;kr nxMh ikVk ek:u frpk [kqu dsyk rh Tkkxk eh nk[kforks rlsp rks ikVk eh dk<qu nsrks- rlsp dq- fu'kk fgpk [kqu dsY;kuarj rhps izsr T;k fBdk.h usmu Vkdys rh tkxk nk[kforks- rlsp ek>s vaxkr R;kosGh usl.hl vlysyh iWUV( vaMjiWV( dq- fu'kk fgph pM~Mh T;k fBdk.h eh iq:u Bsoyh rh tkxk nk[koqu diMs dk<qu nsrks- pyk-" Reading the statement, Exhibit 31, it can be said that the accused is said to have stated before the panchas as under: "I willingly state on oath that on 23-10-1995 at about 3.30 p.m. I lifted the girl Nisha of Satish Pawar, aged 3 years, residing near my house and brought her to my house. I show the place where I forcibly had intercourse with her and murdered her by hitting the grinding stone --- Pata --- on her head. Similarly I will show the place where I murdered her. In the same way I shall take out the said grinding stone from the place where I concealed it. In the same way I will show the place where I threw the dead body after murdering Nisha. In the same way I will show the place and take out my clothes i.e. underpant and pant and nicker of Nisha from the place where I have buried them and come along with me." 30. The learned Counsel for the appellant as well as Mr. Kanade, learned Public Prosecutor for the State, do not dispute that the following statements from what has been recorded in the Memorandum, Exhibit 31, would be admissible. "(1) I will show the place. (2) I will take out the Pata from the place where I have concealed it and (3) I will show the place where the dead body is kept and (4) I will produce my clothes i.e. pant, underpant and underwear of Kum. "(1) I will show the place. (2) I will take out the Pata from the place where I have concealed it and (3) I will show the place where the dead body is kept and (4) I will produce my clothes i.e. pant, underpant and underwear of Kum. Nisha from the place where I had buried them." Now in order to see whether these statements are proved in the evidence of the prosecution we may mention that neither P.W. 11 Eknath, panch nor P.W. 13 Khedkar, P.S.I, whole-heartedly support the statements. P.W. 11 Eknath merely stated that "the appellant showed his readiness to show the stone". He does not say that "the appellant made a statement disclosing his readiness to show the place where he had concealed the stone". Similarly the panch only says that the appellant had also shown his readiness to show the place where the dead body was kept. The panch, however, stated that the appellant also showed his readiness to show the place where he concealed his blood-stained clothes. The panch does not refer to the clothes of the deceased girl. The statement that the appellant showed his willingness to show the stone in our opinion cannot be treated as an incriminating in nature. Similarly the statement that the "appellant had showed his readiness to show the place where the dead body was" cannot be regarded as discovery of the incriminating fact especially when the place from where the dead body was found was already known to the police. Now, in regard to the concealment of the blood-stained clothes of the appellant there is evidence that the appellant produced the blood-stained pant and underwear from the earth. The panch does not say that these articles were taken out by the appellant by digging the earth nor the Investigating Officer attributes any act of digging earth to the appellant but he merely says that the appellant took out some clothes from the earth. Moreover, the panch does not say that the underwear of the girl was taken out along with other clothes by the appellant. Similarly, the Investigating Officer does not say that the underwear of the small size was that of the girl. Both of them, however, say that there were blood-stains. 31. Moreover, the panch does not say that the underwear of the girl was taken out along with other clothes by the appellant. Similarly, the Investigating Officer does not say that the underwear of the small size was that of the girl. Both of them, however, say that there were blood-stains. 31. There is no dispute that the report of the Chemical Analyser (Exhibit 41) shows that blood group 'B' as that of the deceased girl Nisha was detected. We, however, hesitate to take into account this circumstance because Article 11 was neither identified as on the person of the deceased Nisha at the relevant time either by P.W. 10 Shantabai or by any other witness examined by the prosecution. Therefore, this Article 11 will have to be excluded since neither the panch nor the Investigating Officer corroborates the so-called statement of the appellant of making discovery of Article 11. 32. In case of full pant, Article No. 9 and underwear Article No. 10, the report of the Chemical Analyser shows that the blood 'B' on full pant (Article 9) was detected. Indeed this article of full pant is relevant having connection with the crime alleged but unfortunately there is absolutely no evidence to show that this article belongs to the appellant. Neither P.W. 7 Asif nor P.W. 8 Ramzan identified that this full pant was on the person of the appellant on that day evening. There is also no further evidence adduced by the prosecution to prove the identity of the full pant as that of the appellant. Therefore, discovery of unconnected article is of no avail to the prosecution. In case of underwear the report of the Chemical Analyser shows that the blood group 'AB' that of the accused was detected with semens. Here also there is no evidence of identity of under-wear as that of the appellant. In respect of both the articles no question was put to the appellant that these clothes belonged to the appellant in his statement under section 313 of the Code of Criminal Procedure. Therefore, the recovery of these articles, assuming that they are admissible in evidence, unless they are identified to be the clothes of the appellant it is unsafe to rely on it to prove the complicity of the appellant in the crime. Therefore, the recovery of these articles, assuming that they are admissible in evidence, unless they are identified to be the clothes of the appellant it is unsafe to rely on it to prove the complicity of the appellant in the crime. Thus, in scrutinising the statement which is said to have been made to the police officer in order to find out as to which portion of that statement bears distinct relationship to the discovery of the fact, we have no alternative but to reach to the conclusion that the prosecution has failed to prove the discovery of the fact as distince as it may be a link in the chain of proof as to the guilt of the appellant. The learned trial Judge seems to have overlooked the necessity of this requirement. It is well settled that once a relevant fact is discovered by reason of a statement made by the accused to a police officer, the Court must scrutinise the statement in order to find out which portion of that statement bears a distinct relationship to the discovery of the fact. Any relationship to the fact is not sufficient. The relationship must be distinct; it must be unmistakable and unequivocal. When a statement made by an accused person while in custody of a police officer is tendered in evidence under section 27 on the ground that an article which is concealed and the accused had knowledge of its whereabouts are discovered in consequence of the statement, the words included in the statement with regard to the authorship of the concealment e.g. "I have concealed", "I have hidden", or "I have kept", are admissible under section 27 of the Evidence Act. The prosecution, in the instant case, however, failed to prove the identity of these articles and therefore, it cannot be said that the prosecution has been able to prove the relevancy of these facts in the present case. It can be seen from the testimony of P.W. 11 panch Eknath and P.W. 13 Khedkar, P.S.I, that their evidence do not indicate that the appellant named himself as the author of the concealment of the grinding stone. Similarly none of these witnesses are firm in stating that the appellant dug the earth and took out the clothes so as to infer that the clothes were hidden or concealed in the earth. Similarly none of these witnesses are firm in stating that the appellant dug the earth and took out the clothes so as to infer that the clothes were hidden or concealed in the earth. Significantly, there is no dispute that the place where from these clothes are produced was near the place from where the dead body was recovered on the earlier day under panchanama, Exhibit 11. That was the public place and it was already known to the police. Law requires that the discovery must be a place concealment and not a public place like the field. 33. To our mind the evidence of recovery of Pata at the instance of the appellant cannot by itself prove that he used the Pata as weapon of the crime when the statement as to pointing of weapon is too vague to identify the authorship of the concealment. Pointing of the weapon may, at best, prove the accused's knowledge as to where the Pata was kept. The element of criminality tending to connect the accused with the crime lies in the authorship of concealment and not merely producing it from the place. Therefore, in the absence of any evidence indicating that the appellant was the author of concealment of the Pata i.e. stone of the offence, seizure of the Pata on production by the appellant, though may be relevant, cannot be said to be a circumstance pointing to his guilt. Therefore, finding out of the Pata i.e. grinding stone, which, according to the report of the Chemical Analyser, had stains of blood group 'B' that of the deceased, is nothing more than a neutral circumstance. In the case of clothes, in the absence of identification that these clothes either belong to the appellant or the deceased, it cannot be said that there is discovery of fact of blood-stained clothes. Moreover, there is no discovery of facts when the facts were already known to the police from other sources. Section 27 of the Indian Evidence Act contemplates that the discovery must be of some fact which the police had not previously learnt from other sources and the knowledge of the fact should be first derived from the information given by the accused. Section 27 of the Indian Evidence Act contemplates that the discovery must be of some fact which the police had not previously learnt from other sources and the knowledge of the fact should be first derived from the information given by the accused. In the instant case, as seen from the panchanama, Exhibit 11, coupled with the testimony of P.W. 10 Shantabai and her statement in the first information report, the place where the dead body was lying was known not only to the police but also to the witnesses. It has come in the evidence of P.W. 10 Shantabai that on hearing from P.W. 12 Deokar, large number of people from the locality had come to the field from where the police took the dead body of girl Nisha. It is unlikely that the place from where the clothes were recovered could not have been noticed by any of these persons even before the discovery of the clothes at the instance of the appellant. In our opinion, therefore, the evidence furnished by the prosecution is in the nature of mere discovery of blood-stained clothes and cannot be regarded as a consequence of the statement made by the appellant under section 27 of the Evidence Act. The discovery envisaged in section 27 is of the fact only and not of discovered fact. Mere recovery of the blood-stained clothes even at the instance of the appellant is of no consequence when the other evidence adduced by the prosecution does not establish the prosecution case against the appellant beyond reasonable doubt. There is no evidence which the prosecution could adduce in this case to show that the appellant threw the grinding stone on the head of the girl in his house. As stated above, the grinding stone was not shown to the doctor to get his opinion whether the injuries suffered by the deceased could be caused by this grinding stone. There is also no evidence worth the name to show that the appellant carried her dead body in the gunny bag and threw it near the field. There is also no evidence to show that the girl was wearing the Jangya as seized at the relevant time. There is also no evidence that the pant and under-wear seized by the police belonged to the appellant. There is also no evidence to show that the girl was wearing the Jangya as seized at the relevant time. There is also no evidence that the pant and under-wear seized by the police belonged to the appellant. It is thus seen that the evidence furnished in the form of recovery of incriminating facts, indeed, has no evidentially value and it cannot be said that it furnishes material against the appellant to prove his complicity in the crime. The discovery evidence by itself is subsidiary and is not sufficient to sustain the conviction. But in the absence of further prosecution evidence to prove independently the complicity of the appellant in the commission of the offences alleged we feel that this infirm discovery evidence cannot furnish a complete chain of proof to prove guilt of the appellant beyond reasonable doubt. In other words, the discovery evidence is in the chain of proof and if other links are found wanting to bring home guilt to the accused beyond reasonable doubt it would not alone be sufficient to establish the prosecution case. This is a case where the recovery evidence is doubtful and other evidence on record does not support the alleged recovery and therefore, it is unsafe to convict the appellant on such recovery evidence. 34. We may emphasise that in the present case very strong proof of high standard is required to prove that the appellant in fact made the statements attributed to him and the facts have been discovered in consequence thereof. The solitary statement of the police officer or of panch though not in explicit terms involve the appellant, cannot constitute evidence of requisite standard for proof required under section 27 of the Evidence Act. 35. That takes us to the last circumstance, namely, about the presence of the blood-stains on the wall in the house of the appellant or the blood-stains having been noticed on the portion of quilt as well as newspaper which were found in the room. The evidence in that regard also suffers from similar infirmities which we have discussed in the case of the recovery evidence. It may be stated that P.W. 10 Shantabai seems to have visited the house of the appellant earlier before the panchanama, Exhibit 11, was drawn. The evidence in that regard also suffers from similar infirmities which we have discussed in the case of the recovery evidence. It may be stated that P.W. 10 Shantabai seems to have visited the house of the appellant earlier before the panchanama, Exhibit 11, was drawn. Moreover, the entire quilt as such as was not seized by the police but a portion stained with blood appears to have been seized by the police. There is no evidence that the quilt belongs either to the appellant or to his family members. Similarly in the case of portion of newspaper finding out of a piece of newspaper stained with blood cannot exclude its seizure from the very place of field. It may be from the place from where the dead body was taken out. There is also discrepancy in the evidence of the Panch and the police officer whether the blood was noticed on the floor or on the wall. According to the Panch, it was noticed on the floor but according to the Investigating Officer it was noticed on the wall the scrapping from the wall taken. Significantly, the report of the Chemical Analyser does not indicate that the blood detected from the scrapping of the wall was of 'B' blood group, though in one sample human blood was found but that can be explained by various ways having regard to the manner in which the appellant had undertaken his livelihood. In case of piece of quilt, human blood was detected but blood group could not be determined and therefore, that circumstance is a neutral circumstance. We, therefore, find that there is absolutely no reliable, cogent and unimpeachable evidence to prove that the appellant and none else was the perpetrator of the crime. 36. In the view that we take, the prosecution has miserably failed to prove the guilt of the accused for any of the offences for which he was charged. The learned trial Judge seems to have misread the prosecution evidence without properly evaluating the circumstantial evidence in the light of the well-established principles. We, therefore, find that the circumstances relied on by the prosecution have not been fully established and, therefore, there is no complete link in the chain of proof pointing to the guilt of the accused. The appellant is, therefore, entitled to acquittal. 37. In the result, the confirmation case is dismissed. The appeal is allowed. We, therefore, find that the circumstances relied on by the prosecution have not been fully established and, therefore, there is no complete link in the chain of proof pointing to the guilt of the accused. The appellant is, therefore, entitled to acquittal. 37. In the result, the confirmation case is dismissed. The appeal is allowed. The conviction and sentence passed against the appellant is set aside and the appellant is acquitted of all the offences. The appellant be set at liberty forthwith if not required in any other case. Mr. Bora, learned Counsel appearing as Amicus Curiae be paid Rs. 500/- Appeal allowed. *****