Judgment :- M. Thanikachalam, J. The accused, who suffered conviction under Sections 364, 302 and 382 I.P.C. and sentenced to undergo life imprisonment, life imprisonment with a fine of Rs.1000/-, and 10 years R.I. with a fine of Rs.1000/-, with usual default clause, under respective Sections, in the hands of the trial Court, is the appellant. 2. The respondent police by laying a final report, before the trial Court, against the accused, compelled him to face the above said offences on the grounds, that he had abducted one Shanthi, 15 days prior to 19.11.1998, that by abducting Shanthi, in order to commit theft, he committed murder of Shanthi by strangulating her, that thereafter, he retained the property taken by the theft and therefore, he should be dealt with under Sections 364, 302 and 382 I.P.C. 3. Upon questioning by the trial Court, after framing charges, the accused/appellant refused to plead guilty, totally denying all the allegations leveled against him, thereby making it compulsory for the prosecution, to prove the charges, beyond all reasonable doubt. 4. The prosecution, in order to discharge the burden of proof, thereby to prove the guilt of the accused, had examined 14 witnesses, seeking support from 20 documents, as well as 12 material objects. A meticulous scanning and evaluation of the above materials, according to the conclusion of the learned III Additional Sessions Judge, Dharmapuri District, brought to surface the guilt of the accused, beyond all reasonable doubt. By concluding so, the accused/appellant has been convicted for all the offences, sentencing him as aforementioned, which caused grievance, resulting this appeal. 5. The facts, leading to the conviction in brief: (a) Raji (P.W.1) is the father of Shanthi (deceased). There was a proposal for the marriage of Shanthi and before the marriage was materialised, it seems, the proposed bridegroom expired. Thereafter, it seems Shanthi had developed some intimacy with one Chidambaram and others. (b) On 6.11.1998, the accused by deceit method or otherwise, appears to have abducted Shanthi and took her to Hokkannakkal, near a temple called Thimman Amman Koil. When both of them were proceeding to the temple, Parasuramamurthy (P.W.2) had seen them lastly. The accused, who abducted Shanthi, committed murder by strangulating her neck, then he removed the necklace, M.O.1 from her neck. Since the occurrence was not noticed by anybody, the accused left the body near the bush and absconded. When both of them were proceeding to the temple, Parasuramamurthy (P.W.2) had seen them lastly. The accused, who abducted Shanthi, committed murder by strangulating her neck, then he removed the necklace, M.O.1 from her neck. Since the occurrence was not noticed by anybody, the accused left the body near the bush and absconded. (c) The father of Shanthi, P.W.1 though waited for the return of his daughter, she had not returned as expected, resulting entertainment of doubt. Therefore, P.W.1 preferred Ex.P.1 complaint to P.W.12, who registered a case originally under Section 366 I.P.C. in Cr.No.308/98. His effort to trace out the missing girl ended in vain, though he had information during the enquiry, that the accused was seen with the company of Shanthi at some point of time. Therefore, he submitted the papers for further investigation to P.W.13. (d) Thiru Peyappa Gounder/Oor Gounder doubted about the involvement of the accused. One day, he had seen the accused near Krishnagiri market at about 8.00 or 9.00 p.m. Immediately, he informed the same to P.W.13, who swing into action, resulting the arrest of the accused on 28.11.2000 at about 10.30 p.m. The examination of the accused and the confession statement given by him, brought to surface the scene of crime, as well as recovery of certain materials, which further disclosed the fact, that Shanthi was murdered. Therefore, P.W.13 altered the case from Section 366 I.P.C. to 302 I.P.C., for which separate first information report also had been sent to the court concerned. (e) On the basis of the confession statement given by the accused, in the presence of P.W.3, the investigating officer recovered M.O.11 (gold necklace) from P.W.5. The accused had no explanation, how M.O.11, which belonged to the deceased Shanthi, came to his possession, who in turn sold the same to P.W.5. On that basis, it is presumed that the accused might have murdered Shanthi. (f) The incident had taken place on 6/7.11.1998. The scene of crime disclosed, no body, whereas only remains such as skull, bones and dress worn by the deceased were available. At the request of the investigating officer, a formal postmortem was conducted, recovering the bones, under Ex.P.8. The bones recovered were subjected to chemical process, in order to ascertain, whether it belongs to Shanthi, which revealed that the bones belonged to a female, who is aged about 15 or 16 years. At the request of the investigating officer, a formal postmortem was conducted, recovering the bones, under Ex.P.8. The bones recovered were subjected to chemical process, in order to ascertain, whether it belongs to Shanthi, which revealed that the bones belonged to a female, who is aged about 15 or 16 years. In order to fix the identity of the body or the person said to have been murdered, the skull recovered from the scene of crime, was compared with the photo of Shanthi, by adopting superimposition test, which brought to surface, the skull could very well have belonged to a female individual, seen in the photo i.e. Shanthi. (g) On the basis of the above opinion and on the strength of the documents and the statements recorded by the investigating officer then and there, a result was deduced, as if the accused had abducted Shanthi and committed murder. Thus, a final report had been filed, leading to trial, ending in conviction, which is under challenge in this appeal. 6. Heard the learned counsel for the appellant, Ms. Thenkodi Nelson and the learned Additional Public Prosecutor, Mr. E. Raja. 7. The learned counsel appearing for the accused/appellant assailed the conviction and sentence on the following grounds viz., (i) that the prosecution has not proved with certainty and unquestionably that the daughter of P.W.1 was kidnapped and murdered. (ii) that the last seen theory sought to be introduced, to prove the guilt of the accused, as one of the circumstances, remains unproved, since the oral evidence of P.W.2 is artificial and not dependable, (iii) that another circumstance, introduced to connect the accused with the crime, as if he had committed theft of M.O.11 from Shanthi, is not at all proved and (iv) that the alleged circumstances aimed against the accused have no evidentiary value, since none of the circumstances inter-linked without snap, leading to the only conclusion, giving no chance for any other conclusion, that the accused alone should have committed murder. On the above lines, in addition drawing our attention to some other circumstances also, the learned counsel for the appellant submitted, that the trial Court without properly scanning the evidence available on record, more or less under presumption, as if everything is proved, had convicted and sentenced the accused, which require eraser by the interference of this Court. 8. On the above lines, in addition drawing our attention to some other circumstances also, the learned counsel for the appellant submitted, that the trial Court without properly scanning the evidence available on record, more or less under presumption, as if everything is proved, had convicted and sentenced the accused, which require eraser by the interference of this Court. 8. The learned Additional Public Prosecutor, per contra, opposing the above arguments submitted, that the materials available on record substantially proved the offences reported against the accused, though they are circumstantial in nature, which are properly, legally considered by the trial Court, reaching a legal conclusion, which does not require any interference by this Court. Thus, canvassing the reasonings assigned by the trial Court, the learned Addl. Public Prosecutor pleaded for confirmation of the conviction and sentence. 9. The learned III Additional Sessions Judge had accepted the oral evidence of P.W.2, which proved according to him the last seen theory. He has further concluded, as seen from paragraph-29 of the judgment, that the bones, skull, seen in the scene of crime belonged to Shanthi, the deceased in this case, despite the age difference. On these two grounds alone, even without going into the question of recovery, it seems, the learned trial Judge has come to the conclusion, that all the offences reported against the accused are proved. 10. By going through the judgment of the learned trial Judge and considering the materials available on record, on the basis of the submission made by either counsel, we are of the considered opinion, that the trial Judge had committed so many errors irreconcilable in nature, not fitting with the legal conclusion, that too, to base the conviction, on the basis of the circumstantial evidence. In order to ascertain the validity of the judgment, we have to remember, what are the circumstances relied on by the prosecution and how far those circumstances were brought to surface uneclipsed by any shade of doubt. 11. In order to ascertain the validity of the judgment, we have to remember, what are the circumstances relied on by the prosecution and how far those circumstances were brought to surface uneclipsed by any shade of doubt. 11. As seen from the prosecution case and as submitted by the learned Additional Public Prosecutor also, the circumstances relied on by the prosecution, to fix the culpability upon the accused are: (i) that the deceased was seen with the company of the accused immediately after the alleged kidnapping and before the time of death, (ii) that on the basis of the confession of the accused on his arrest, some of the properties belonged to the deceased have been recovered, for which the accused had no explanation, thereby warranting a presumption as contemplated under the Evidence Act and (iii) that the accused more or less absconded, who was later identified by a witness, leading to arrest. These are all the main circumstances relied on and therefore, we have to see whether these circumstances are available, inter-linked, connected, so as to encircle the accused, not allowing him to escape from the clutches of the penal provisions. If any of the circumstances relied on by the prosecution had the character of undependability, giving a chance to think, there may be some other's hands also, thereby not all the circumstances radiating only towards the accused, then as ruled by the Apex Court repeatedly, the circumstantial evidence or the circumstances, as the case may be, would lose its importance and capability, thereby failing to rope in the accused, as the culprit. On the above said basis, we have to see the circumstances in this case. 12. P.W.1, the father of the deceased admits, that his daughter was not a woman of good character and she is susceptible to wavering mind, thereby involving in certain illegal activities. He admits during the cross examination, that his daughter had connection with one Chidambaram, as well as with other village people also. He has also further admitted, that because of the immoral character and illegal activities of Shanthi, there was panchayat and the daughter used to leave the village with the men of her choice, etc. He admits during the cross examination, that his daughter had connection with one Chidambaram, as well as with other village people also. He has also further admitted, that because of the immoral character and illegal activities of Shanthi, there was panchayat and the daughter used to leave the village with the men of her choice, etc. On the basis of the admitted conduct of Shanthi, when she was not seen for many days, the father, P.W.1 kept quite for sometime, then preferred Ex.P.1 complaint belatedly i.e. on 19.11.1998, after the delay of 13 days, suspecting the involvement of Chidambaram, Govindan, the accused/appellant and three others viz., Kaveri, Vediyammal, Raji. 13. Only on the basis of Ex.P.1, a case has been registered under Section 366 I.P.C. The police ought to have verified the veracity of the averments in Ex.P.1 by examining the other accused or by taking them into custody etc. The materials available on record fails to divulge the investigation against the other alleged accused in Ex.P1. Thus the police had failed to rule out the involvement of the other accused mentioned in Ex.P.1. Considering the long and inordinate delay in preferring the complaint, we are unable to say with certainty, that the accused alone should have abducted the deceased, whether it is on 6.11.1998 or 7.11.1998, as the case may be. Thus, the spontaneous doubt on the basis of the prosecution document, which had arisen in the minds of the Court, certainly requires eradication, by way of explanation or by way of acceptable evidence, which is not at all available in this case. Unfortunately, the trial Court has not adverted to this fact and proceeded, as if the investigation was conducted properly, which pointed out the accused alone as the culprit ruling out other possibilities, which is not the case, as seen from the materials available on record. 14. Before going to the circumstances, it is the duty of the prosecution to establish, that the deceased in this case was Shanthi, viz., daughter of P.W.1. If the identification of Shanthi is established with the death, or connected with the skull and bones recovered from the scene of crime, then only the last seen theory and any property recovered on the basis of the confession said to have been given by the accused, connecting with the deceased would arise for consideration. If the identification of Shanthi is established with the death, or connected with the skull and bones recovered from the scene of crime, then only the last seen theory and any property recovered on the basis of the confession said to have been given by the accused, connecting with the deceased would arise for consideration. Unfortunately in this case, it is not made out unquestionably, that the deceased was the daughter of P.W.1, though she is not available. 15. It is the case of P.W.1 that his daughter is aged about 30. Shanthi is the third daughter of P.W.1. She was already married and her husband also expired. Thereafter, the second marriage was also arranged. Taking into account all these matters, it could be safely concluded that the age of the deceased would be 30', as rightly admitted by P.W.1 also. It cannot be said that the age of Shanthi was mistakenly given by P.W.1 as 30' as incorrectly observed by the trial Court. Thus, fixing the age of the deceased at 30, other evidence has to be analysed. 16. After collecting the bones, from the scene of crime, including the skull, P.W.8 was requested to examine the bones, not only to ascertain whether the bones belonged to a female, but also to ascertain the age of the person. P.W.8 had categorically stated, that the bones which were examined by him, belonged to a female and the female must be aged about 15 or 16, which is evidenced by Ex.P.9 also. It is not the case of one or two years difference, which we could very easily ignore. The difference is 15 years. Therefore, on the basis of the evidence given by P.W.8, it is not at all possible to say, that the bones recovered from the scene of crime, belonged to the deceased Shanthi, the daughter of P.W.1, who was said to have been abducted on 6.11.1998. 17. The investigating officer, when spotted out the scene of crime, had noticed only the remains of the body and it is not known whose body decayed, resulting bones, skull, etc. Therefore, in order to identify the person by scientific test, aid is sought from Ex.P.14, which was done by P.W.10. According to P.W.10, he had compared the skull recovered from the scene of crime viz., M.O.12 with the photograph of the deceased, made available to him viz., Ex.P.13. Therefore, in order to identify the person by scientific test, aid is sought from Ex.P.14, which was done by P.W.10. According to P.W.10, he had compared the skull recovered from the scene of crime viz., M.O.12 with the photograph of the deceased, made available to him viz., Ex.P.13. Unless it is proved Ex.P.13 is the photo of Shanthi, comparing the skull with the photo, whether it is scientifically or otherwise, may not serve any purpose. Therefore, evidence should have been let in to the effect that Ex.P.13 does contain the figure of Shanthi. Our effort to find out this aspect and our query to the learned Additional Public Prosecutor also ended in vain, since practically there is nil evidence to establish the above aspect. The father has not identified Ex.P.13 as his daughter's photo. Even the investigating officer has not spoken that he had recovered Ex.P.13 from P.W.1 or from his relatives, who had identified Shanthi as the person available in the photo. This being the position, the comparison of Ex.P.13 with M.O.12, in our considered opinion, would not serve the purpose, to identify the deceased in this case, as Shanthi. After all, P.W.14 has stated that the skull is feminine and it could very well have belonged to the female individual seen in the photograph. Thus, the opinion given on the basis of the superimposition technique, which is scientifically accepted, if otherwise also proved, fails to come to the aid of the police, since the prosecution has failed to let in evidence, identifying the photo as that of Shanthi and the recovery. In this view, we are unable to positively conclude, that Shanthi was kidnapped, murdered in the alleged scene of crime and her bones or her remains were recovered, on the basis of the disclosure statement, leading to the identification of the place, by the accused. Assuming that the skull belonged to Shanthi, let us see any concrete evidence is available in the shape of circumstances, to connect the accused. ` 18. It is the case of the prosecution that Shanthi was abducted on 6.11.1998 and murdered on 7.11.1998, in the forest near Thimman Amman Koil, 8 kms away from Hokkannakkal. As seen from the sketch, there is a pathway nearby the alleged scene of crime. ` 18. It is the case of the prosecution that Shanthi was abducted on 6.11.1998 and murdered on 7.11.1998, in the forest near Thimman Amman Koil, 8 kms away from Hokkannakkal. As seen from the sketch, there is a pathway nearby the alleged scene of crime. In order to commit murder for gain, it is doubtful whether the accused would have chosen a place near the temple, that too near the pathway, where people will be moving often. P.W.2 is the key witness to base the conviction, as per the conclusion of the trial Court. P.W.2 had stated that one day, when he had been to Hokkannakkal, to take bath, he had seen the deceased Shanthi and the accused Govindan. He further says, the same was informed by him to the villagers also. It is the further case of P.W.2 that on the next day, he was examined by the police. The police have examined P.W.2 only after 29.11.1998 i.e. after the arrest of the accused. If the arrest and recovery is to be believed, then the oral evidence of P.W.2 should be disbelieved, since according to P.W.2, he had seen the accused with the company of the deceased, on the previous day of his examination. During the cross examination, he has given a different version as if he had seen the accused near the temple, thereby contradicting the previous statement. He has not given even the time or at least the date. Leave alone the exact date, being an illiterate, since P.W.2 has not given the approximate date and time, believing his evidence as if it proves the last seen theory, conviction could not be based safely. But unfortunately, the trial Court accepted his evidence, which is not acceptable to us, since in our proper consideration, P.W.2 would not have seen the deceased, along with the accused. Therefore, we are constrained to eschew the oral evidence of P.W.2, thereby removing the "last seen theory" also. If this is the position, there are no other materials, to connect the accused to the crime. 19. On the information said to have been given by P.W.3, the accused was arrested by the investigating officer and it is the case of P.W.13 also. On the basis of the confession given by the accused viz., Ex.P5, M.O.11 was recovered under the cover of mahazar Ex.P.6. 19. On the information said to have been given by P.W.3, the accused was arrested by the investigating officer and it is the case of P.W.13 also. On the basis of the confession given by the accused viz., Ex.P5, M.O.11 was recovered under the cover of mahazar Ex.P.6. If M.O.11 belonged to the deceased, the question next arises is, who is to identify the same and the answer is given by P.W.1, identifying the same. It is not the case of P.W.1 that on the date of abduction, the deceased was wearing the necklace, M.O.11. Since it is the case of P.W.1 that her daughter used to leave the village, choosing the man of her choice, question of abduction does not arise for consideration in this case. Ignoring this glaring point, unfortunately the trial Court had convicted the accused under Section 364 I.P.C., which is not acceptable to us. Even assuming that M.O.11 belonged to the deceased, it is not proved beyond all reasonable doubt, though it is said the same was recovered on the basis of the confession given by the accused. P.W.3 has not spoken about the alleged confession, where from M.O.11 was recovered identifying the same. Therefore, the oral evidence of P.W.3 has no strength to prove either the confession or the recovery. It is the case of the prosecution that the accused sold M.O.11 to P.W.5. P.W.5 says that the accused sold M.O.11 for a sum of Rs.8,800/-, for which he is having a receipt. The best piece of evidence to prove the selling of the jewel, by the accused is that receipt, which was reaffirmed by P.W.5 during the cross examination, but not recovered by the police. It is not the case of P.W.5 also, that the police came along with the accused, and the accused identified him and therefore, he was compelled to divulge the sale by the accused. In the absence of such kind of evidence, indicating the identification of P.W.5, by the accused, recovery of M.O.11 may not have any evidentiary value as strong circumstance, to connect the accused, as if he had committed the murder of Shanthi, stolen M.O.11, sold the same to P.W.5. P.W.5 though had spoken as if Raji (P.W.1) and Lakshmi had purchased this jewel, he has not produced the receipt, which is with him as admitted. P.W.5 though had spoken as if Raji (P.W.1) and Lakshmi had purchased this jewel, he has not produced the receipt, which is with him as admitted. It is elicited during cross examination that the accused sold the jewel on 29.11.1998 and the relevant portion in Tamil reads as follows: Admittedly, even as per the case of the prosecution, the accused was arrested on 28.11.998 at about 10.30 p.m. If this is the position, it is not understandable how the accused would have sold the jewel on 29.11.1998 as spoken by P.W.5. This inconsistency is not explained. Therefore, on the basis of the alleged recovery of M.O.11, concluding that he had stolen M.O.11, from the deceased, convicting the accused, as if the offence has been made out, is beyond the scope of law. 20. The arrest and the recovery of certain articles on the basis of the alleged confession from the accused, also proved to be false, as seen from Ex.P.8. The postmortem certificate says, the doctor at the request of the investigating officer, conducted a formal postmortem, on the body of a female aged about 16 years named Shanthi. The postmortem commenced on 10.30 a.m. on 30.11.1998 in the spot itself. The doctor has stated in Ex.P.8, as follows: "Bones were found scattered in between bushes near about 1 furlong distance from Chinnan river bank west side, shawl-green colour, Pavadai-red coloured flower, jacket blue colour with golden sarigai, petti coat-green colour, dhavani orange colour. Skull no injuries seen." The above observation by the doctor in the postmortem certificate, would disclose that the dresses worn by the deceased were available in the scene of crime on 30.11.1998, such as Shawal, Pavadai, Jacket, Petticoat, Dhavani, etc. But, Ex.P.4 says, the dresses were recovered from the scene of crime, on the basis of the confession given by the accused on 29.11.1998 at about 11.30 a.m. If Ex.P.4 is to be accepted, then Ex.P.8 has to be negated. In this view, the evidence given by the investigating officer, as if the accused had confessed, by the disclosure statement, leading to recovery are all make believe affairs, and therefore, believing the oral evidence of the investigating officer, or P.Ws.4 & 5, neither the arrest could be accepted nor the recovery could be accepted. In this view, the evidence given by the investigating officer, as if the accused had confessed, by the disclosure statement, leading to recovery are all make believe affairs, and therefore, believing the oral evidence of the investigating officer, or P.Ws.4 & 5, neither the arrest could be accepted nor the recovery could be accepted. In this view, the attempt made by the prosecution to connect the accused, with the recovery of M.O.11 also falls to the ground. The admitted or established position being so, as discussed by us hereinbefore, the trial Court had took a different view, which is not at all possible, thereby committed an error, leading to erroneous conclusion. None of the circumstances relied on by the prosecution, failed to point out the guilt of the accused ruling out the possibility of the involvement of any other person. Under the above circumstances of the case, we are unable to agree with the findings of the trial Court, which is not legally sound. Hence we are constrained to interfere with the findings of the trial Court, concluding that the appeal deserves acceptance, being meritorious, thereby we upset the findings of the trial Court. The appeal is allowed setting aside the conviction and sentence slapped by the trial Court in S.C.No.153 of 2003, on the file of the III Additional Sessions Judge, Dharmapuri District by judgment dated 9.8.2001 and the accused is acquitted of the charges against him holding that the prosecution has failed to prove the guilt of the accused, beyond all reasonable doubt, ordering him to release forthwith, if his detention is not required in any other case.