Judgment A.K.Prasad, J. 1. Death reference No. 1 of 1997(R) and Cr. Appeal No. 83 of 1997 (R), arising out of common judgment and order of conviction dated 4-4-1997 in S.T. No. 463 of 1994 passed by Sri. B.N.P. Singh, Sessions Judge, Palamu at Daltonganj, have been heard together and are to be governed by this common judgment. 2. Accused  Anil Yadav and Sanjay Yadav were tried and convicted under Sec. 342, 323, 376, 302 and 201 of the Indian Penal Code by the Sessions Court on the charge that on 5-3-1994 they had wrongfully confined Uspati Devi and Savita Devi, the deceased, and had assaulted Dukhan Mahto (P.W. 2) when he had protested to it and that they raped and eventually murdered victims Uspati Devi and Savita Devi and for causing disappearance of the evidence of double murder by throwing their dead bodies into a well. Both the accused have been sentenced to death under Sec. 302, IPC, Further they have been sentenced to suffer rigorous imprisonment for seven years, one year and sixmonths under Secs. 376, 342 and 323, IPC respectively. It appears that the learned Sessions Judge has passed no separate sentence under Sec. 201 of the Indian Penal Code against them perhaps because they have been sentenced to death under Sec. 302 of the Indian Penal Code. Learned Sessions Judge made a reference to this court for confirmation of the death sentence awarded to them under Sec. 366(1) of the Criminal Procedure Code, which gave rise to Death Reference No. 1 of 1997(R). Criminal Appeal No. 83 of 1997(R) is by co-accused (Ramjiwan Yadav and Vishwanath Yadav alias Bishwanath Yadav) against their convictions under Secs. 302 and 201 of the Indian Penal Code and sentence of rigorous imprisonment for life and seven years. Respectively, thereunder. Both the sentence have been directed to run concurrently. 3. The prosecution case, briefly stated as made out in the fardbeyan (Exhibit 3) is as under:- On 5-3-1994, around 8 p.m., on the occasion of Marriage of Sudeshwar Yadav the uncle of the informant. Respectively, thereunder. Both the sentence have been directed to run concurrently. 3. The prosecution case, briefly stated as made out in the fardbeyan (Exhibit 3) is as under:- On 5-3-1994, around 8 p.m., on the occasion of Marriage of Sudeshwar Yadav the uncle of the informant. (Hriday Yadav), Uspati Devi (aged 15 years) the married sister of informant and Savita Devi the 16 year old married aunt of the informant followed by the informant had gone to the house of accused Sanjay Yadav to invite his mother and sister to participate in, Jumar Accused Sanjay Yadav and Anil Yadav allowed Uspati Devi and Savita Devi to enter the house and bolted the door. When the informant protested to it the accused-Sanjay Yadav took out a Bhala and ran to assault him; whereupon the informant fled in fear and. narrated the incident to Dukhan Mahto (P.W. 2), his neighbour. Where after Dukhan Mahto went to the house of the accused-Sanjay Yadav alongwith the informant and enquired from them as to why the girls had been closed inside the room. The accused namely, Sanjay Yadav and Anil Yadav and appellants. Ramjiwan Yadavand Vishwanath Yadav alias Bishwamith Yadav took out lathies and accused Sanjay Yadav dealt lathi blow to Dukhan Mahto on his leg. There was a Ho-Hulla (alarm), whereupon the villagers assembled. The villagers were not allowed to go inside the house. Thereafter the informant and the villagers searched for Uspati Devi and Savita Devi that nightinvain and the next morning a pair of chappals (Footwears) of victim Savita Devi were found near the well of Khaknu Mahto and the dead bodies or Uspati Devi and Savita Devi were recovered by the villagers from the well around 6 a.m. The informant has alleged that the accused persons had wrongfully confined, the victims/deceased in their house with evil intention and after committing rape and murder they had thrown their dead bodies into the well. The sad incident in which the two marred women in their teens lost their lives took place at village Dhwawadih. P.S. Lasliganj, within district Palamu. 4 Madan Prasad (P.W. 14) the then officer-in-charge of Lasliganj Police Station on some rumour, visited village Dhawadih and he recorded fardbeyan of the informant on 6-3-1994 at noon in the field of Johri Mahta situated close to the well of Khaknu Mahto from where the dead bodies had been recovered. P.S. Lasliganj, within district Palamu. 4 Madan Prasad (P.W. 14) the then officer-in-charge of Lasliganj Police Station on some rumour, visited village Dhawadih and he recorded fardbeyan of the informant on 6-3-1994 at noon in the field of Johri Mahta situated close to the well of Khaknu Mahto from where the dead bodies had been recovered. On the basis of the fardbeyan the instant case was instituted a formal first information report (Exhibit 4) was drawn up the police officer (P.W. 14) held inquest over the dead bodies of the deceased on the spot (Exhibit 5 is the inquest report of deceased Uspati Devi), he seized a pair of Hawai Chappals from near the well of Khakhanu Mahto, vide seizure list (Exhibit 6) sent the dead bodies for postmortem examination and after completion of investigation charge-sheet was laid in Court against the accused persons. The case was; ultimately committed to the Court of Sessions on 26-11-1994. 5. The main defence is of innocence false implication and total denial of the involvement of the accused persons in the alleged incident. The further defence as gathered from the suggestion given to the informant (P.W. 9) is that the death of the deceased might have been accidental. 6. At the trial the prosecution examined 14 witnesses in support of its case. Out of them. P.W. 4 (Damodar Singh), P.W. 6 (Lileshwar Yadav) and P.W. 13 (Dr. (Mrs.) Urmila Srivastava) are tendered witnesses; whereas P.W. 1 (Sudesh Yadav), P.W. 2 (Dukhan Mahto), P.W. 3 (Jhirangi Singh alias Rohit Singh) and P.W. 8 (Mahendra Manjhi) have been declared hostile by the prosecution. P.W. 11 (Dr. Rajeshwar Singh) and P.W. 12 (Dr. Tarak Bakhlal held autopsy on the dead bodies of deceased. Savita Devi and Uspti Devi respectively. The other P.Ws. are: P.W. 5 (Yogendra Singh) who had taken out the dead bodies of the deceased from the well. P.W. 7 (Sarda. Devi), mother of the informant and deceased Savita Devi. P.W. 9 (Hriday Yadav), the informant, P.W. 10 (Dukhni Devi), mother of the deceased Uspati Devi and P.W. 14 (Madan Prasad) the Investigating Officer. The defence on the other hand did not examine any witness. 7. It is a case depending entirely on-circumstantial evidence. There is no direct evidence on the point of alleged rape murder or throwing of the dead bodies of the deceased into the well by the accused persons. 8. The defence on the other hand did not examine any witness. 7. It is a case depending entirely on-circumstantial evidence. There is no direct evidence on the point of alleged rape murder or throwing of the dead bodies of the deceased into the well by the accused persons. 8. The trial court mainly relied on the testimony of P.Ws. 7, 9 and 10 and the following circumstances in recording the conviction and sentences against the accused persons on different counts as stated below: Last seen theory that the accused and the deceased were last seen together inasmuch as accused Sanjay Yadav and Anil Yadav had closed them inside their house on the fateful night. Conduct of the accused that all the accused has assaulted Dukhan Mahto (P.W. 2), when he went to their house to enquire about wrongful confinement of the victims by them. There was possibility that Sanjay Yadav and Anil Yadav had raped the deceased. There was motive for murder of the deceased by the accused persons to eliminate their evidence on rape. There was no extensible reason that the deceased would commit suicide particularly when there was jubilation in the family on occasion of marriage of Sudeshwar Yadav. 9. Mr. T.R Bajaj learned counsel for the accused/appellants has vehemently contended that the circumstantial evidence relied upon by the prosecution is wholly insufficient to bring home the guilt to the accused/ appellants. Mr. LN. Gupta, learned APP appearing for the State, on the other hand has supported the impugned judgment, order of conviction and sentence recorded by the trial court. 10. At the out set it may be mentioned that it is well settled that the circumstantial evidence in order to sustain the 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; 11. It is now to be examined whether there are other facts and circumstances to connect the accused persons with the crime in question. 12. In the present case, it is not disputed that the dead bodies of the deceased were recovered from the well of Khamnu mahto in the morning on 6-3-1994. This is a kutcha well, P.W.11, Dr. Rajweshwar Singh and P.W.12, Dr. 12. In the present case, it is not disputed that the dead bodies of the deceased were recovered from the well of Khamnu mahto in the morning on 6-3-1994. This is a kutcha well, P.W.11, Dr. Rajweshwar Singh and P.W.12, Dr. Tarak Bhhla who performed postmortem examination on the dead bodies of deceased Savita Devi and Uspati Devi, respectively, on 7-3-1994, have stated that their death was due to asphyxia caused by drowning. Exhibits 3 and 2/1 are the post-mortem reports of deceased Savita Devi and Uspati Devi respectively. The post-mortem reports reveal that there was no mark of external or internal injury on their dead bodies, on compression of chest there was flow of froth through mouth and nostrial lungs were found voluminous and its pieces sank in water, mucous membrance of trachea was read and oedemateous and stomach was full of water. It is recorded in Exhibits 2 and 2/1 that vulva was swollen and odematous and no spermatozoa was found on microscopic examination of their vaginal swebs. It is specifically recorded in exhibit 2 that no injury or foreign body was found on private part of deceased Savita Devi. P.Ws. 11 and 12 have sated that they had recorded the opinion of Dr. (Mrs) Urmila Srivastava (P.W.13) in the respective post-mortem reports prepared by them (Exhibits 2 and 2/1) that the possibility of rape could to be ruled to because the dead bodies had remained in water for a long time. P.W. 13, dr. (Mrs.) Urmila Srivastava has admitted in her cross-examination that she did not find evidence of rape on the dead body of Uspati Devi. 13. The medical evidence does not support the fact that the death of deceased (Savita Devi and Uspati Devi) was homicidal or that they had been raped. 14. P.W. 14, Madan Prasad who held inquest on the dead bodies of Savita Devi and Uspati Devi does not state in his evidence that he had found any injury on their private parts. In the inquest report (Exhibit 5) there is no mention of presence of any mark of injury on the private parts of Savita Devi It is significant to notice from the inquest report (Exhibit 5) that bangles and the dresses worn by deceased Savita Devi were intact, The evidence on record does not establish that the deceased had been ravished. One cannot be convicted under Sec. 376. One cannot be convicted under Sec. 376. IPC on mere surmise and conjecture that there was the - liability that the deceased might have been raped. In such a situation the inference regarding motive for murder of the deceased by the accused/ appellants drawn, and relied on by the learned Sessions Judge for convicting them under Sec. 302. IPC does not appeal to reason. 15. The exact distance between the well of Khaknu Mahto from where the dead bodies were recovered and the house of the accused/ appellants has not come on record. According to P.W. 6 it is 2 chains; where as P.W. 7 estimates it at 500 yards approimately and P.W. 9 puts it at about 1 km. But the fact remains that the well is at some distance from the house of the accused/ appellants. There is no evidence on record to show that the accused/appellants were seen going along with the deceased upto the well. Further, there is no evidence to show that anyone had seen the deceased coming out of the house of the accused persons on that night. No neighbour has come forward to say that he or she had heard the cries or alarm raised by the deceased at that time either from the house of the accused or on the way to the well. It is not a case where the dead bodies of the deceased were recovered from the house of the accused persons. It is not alleged that any incriminating article was recovered from the house of the accused. The chain of circumstances is not complete in the present case to warrant the conviction of accused/appellants of the charge under sections 302/201, IPC. The isolated circumstance that there was no ostensible reason for the deceased to commit suicide pales into insignificance. 16. In the instant case there may be suspicion against the accused/appellants, but suspicion howsoever strong cannot take place of proof. The least that can be said in this case is that at least there is reasonable doubt about the guilt of the accused/appellant and they are entitled to and given the benefit of doubt. 17. Accused-Sanjay Yadav and Anil Yadav are acquitted of the charge under Secs. 342, 323, 376. 302 and 201 of the IPC and their conviction and sentence thereunder arrest aside. 17. Accused-Sanjay Yadav and Anil Yadav are acquitted of the charge under Secs. 342, 323, 376. 302 and 201 of the IPC and their conviction and sentence thereunder arrest aside. Further the appellants - Ramjiwan Yadav and Vishwanath Yadav alias Bishwanath Yadav are acquitted of the charge under Secs. 302/201 of the I.P.C. and their conviction and sentence there, under are sent aside. 18. In the result the Death. Reference is discharged and the Criminal Appeal is allowed. Accused-Anil Yadav and Sanjay Yadav as well as the appellants (RamjiwanYadav and Vishwanath alias Bishwanath Yadav are directed to be set at liberty forthwith unless they are liable to be detained in connection with any other case.