Judgment S.L. Kochar, J. ( 1. ) -THIS Judgment shall also govern the disposal of Criminal Appeal No. 734/2009 filed by the appellant/accused through Legal Aid against the impugned judgment and order of conviction and sentence. ( 2. ) The learned HI Add1. Sessions Judge, Indore/trial Court submitted the Criminal Death Reference No. 1/2009 for confirmation of death sentence passed by the impugned judgment and order in Sessions Trial No.280/2008 decided on 30/6/2009 whereby the learned Judge has convicted the appellant U/Ss.366, 364,376 and 302 of the IPC, sentenced to undergo RI for 10 years with fine of Rs.500/- in three counts U/Ss.366, 364,376 of the IPC and sentenced to death U/S.302 of the IPC, with defaulting clause of payment of fine, appellant shall undergo RI for six months under each count. However, the substantive jail sentences have been directed to run concurrently. Appellant/accused has also filed Criminal Appeal No.734/2009 aggrieved with the judgment and order of conviction and sentence as mentioned herein above. ( 3. ) Short resume of the prosecution case as put forth before the trial Court is that on 20/1/2008 in the night at 9.00p.m Police Control Room, Indore received information that heirless dead body of a girl aged 6-7 years was lying behind the House No.585 and 588 of Usha Nagar. On the basis of this information, police of police station, Annapurna Nagar, Indore registered Murg No.2/2008 U/S.174 of the Cr.P.C and Station House Officer (for short "SHO") S.P.Dubey (PW.19) immediately reached on the spot and in presence of witnesses prepared inquest report (Ex.P.2). A team of Forensic Science was called and photographs of the body were taken. A handkerchief was found tied around the neck and mouth was crammed by polythene. In the opinion of witnesses of the inquest, deceased was ravished and thereafter killed by throttling. Dead body was sent for postmortem examination which was conducted by Dr.Bharat Prakash (PW.2). Postmortem report is Ex. P. 3. Dead body was not claimed by anybody, therefore, intimation was sent in this regard to all the police stations of the town. When dead body was lying in hospital, Manohar S/o Tulsiram (PW. 13), father of deceased, resident of Vijay Nagar reached in the police station for lodging report of missing of his daughter. Police took Manohar and his brother to hospital where they identified the body of the girl named Nisha @ Kaali. When dead body was lying in hospital, Manohar S/o Tulsiram (PW. 13), father of deceased, resident of Vijay Nagar reached in the police station for lodging report of missing of his daughter. Police took Manohar and his brother to hospital where they identified the body of the girl named Nisha @ Kaali. Police prepared identification memo (Ex.P.8). After inquest enquiry, FIR (Ex.P.16) was registered by SHO S.P. Dubey (PW.19). During the course of investigation, police came to know that appellant once removed the underwear of the girl with an intention to commit rape. On this basis, appellant was taken into custody and interrogated. Appellant disclosed before the police about place of incident and got recovered the empty liquor bottle. From the bag of the appellant, one blue colour underwear was seized. Police prepared confirmation memorandum at the instance of the appellant regarding place of incident. Appellant was sent for medical examination and examined by Dr.A.K.Tiwari (PW.3) who also issued MLC report of appellant (Ex. P. 6). The seized articles including clothes and slide of vaginal swab of deceased were sent to FSL and its report is Ex.P.24. Investigating Officer recorded the statements of the witnesses who were acquainted with the facts of the case and also got recorded statements of Takiasingh (PW.12) and Rambahadur (PW.14) by Magistrate as per provision U/S.164 of the Cr.P.C. On completion of investigation, charge sheet was filed against the appellant U/Ss.364, 366, 376 and 302 of the IPC. ( 4. ) The appellant refuted the charges and his defence was denial, however, he had not examined any witness in defence. Learned trial Court finding the appellant guilty, convicted and sentenced the appellant as noted herein above. ( 5. ) We have heard the learned counsel for parties at length and also perused the entire record minutely. ( 6. ) Homicidal death of the deceased has not been challenged before the trial Court as well as before this Court, otherwise also in view of the evidence of Dr.Bharat Prakash (PW.2) and postmortem report (Ex.P.3), it is fully established that deceased met homicidal death by asphyxia due to throttling. It is also undisputed that appellant was 60 years of age at the time of his arrest and medical examination by Dr.A.K. Tiwari (PW.3) who proved MLC report (Ex.P.6). ( 7. It is also undisputed that appellant was 60 years of age at the time of his arrest and medical examination by Dr.A.K. Tiwari (PW.3) who proved MLC report (Ex.P.6). ( 7. ) It emerged from the impugned judgment that conviction of the appellant is mainly based on circumstantial evidence and circumstances relied upon by the learned trial Court are past conduct of the appellant regarding removal of underwear of deceased, suspicion raised on the appellant by Ramsingh (PW.10), Manoharsingh (PW.13) and Smt. Bharatibai (PW.20), uncle, father and mother of the deceased, medical evidence regarding homicidal death and commission of rape with the deceased, seizure of underwear of deceased from the possession of the appellant, recovery of empty liquor bottle at the instance of the appellant, pointing out place of incident to police in presence of witnesses Rambabu (PW.11) and Takiasingh (PW.12) and evidence of last seen of the deceased in the company of the appellant before her death by Deepak (PW.15). ( 8. ) The core question for decision by us is whether above mentioned circumstances have been proved by the prosecution to bring home the guilt of the appellant beyond all reasonable doubt or not ? The law of circumstantial evidence has been very well enunciated by Supreme Court in cases of Ram Reddy Rajesh Khanna Reddy Vs. State ofAndhra Pradesh [ 2006 (10) SCC 172 ] and State of Goa Vs. Sanjay Thakran [2007 (2) SCC(Cri) 162, para 13], it is extracted herein:- "13. The law of circumstantial evidence has been very well enunciated by Supreme Court in cases of Ram Reddy Rajesh Khanna Reddy Vs. State ofAndhra Pradesh [ 2006 (10) SCC 172 ] and State of Goa Vs. Sanjay Thakran [2007 (2) SCC(Cri) 162, para 13], it is extracted herein:- "13. The prosecution case is based on the circumstantial evidence and it is a well-settled position of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests :- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence; (See State of U.P. v. Satish [(2005) 3 SCC114], Padala Veera Reddy v. State of A.P. [1989 Supp (2) SCC706], Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC116], Gambhir v. State of Maharashtra, SCC p. 355, para 9 [(1982) 2 SCC351] and Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC343]. ( 9. ) In the light of aforesaid legal position of circumstantial evidence, now we proceed to examine the main evidence of last seen of the appellant in the company of the deceased by Deepak (PW.15). He has deposed that he was serving as salesman in liquor shop situated in Mishra Nagar, Annapurna Road, Indore. On 19/1/2008 at 7.45pm one old man with a girl aged about 8-9 years having a bag (thaila) in his hand purchased a quarter and paid coin of rupees forty. He was short of money, therefore, took some money from that girl, at that moment one person told that "beggar is also drinking liquor" at which he replied that it is a question of interest. After purchasing one quarter liquor, both had gone. He was short of money, therefore, took some money from that girl, at that moment one person told that "beggar is also drinking liquor" at which he replied that it is a question of interest. After purchasing one quarter liquor, both had gone. Further say of this witness is that on 24/1/2008 he had seen photo of a person in paper who had committed rape (kukarm) with a girl and killed her. On the basis of photograph, he identified the man who came to the shop with girl having bag. It is also stated by him that he had also seen the photo of girl who came with Baaba (old man) in newspaper on 20/1/2008. It was also mentioned in the paper that girl was first ravished, thereafter killed by throttling and her dead body was found in Usha Nagar. After seeing photo of girl as well as photo of Baaba he himself went to the police station for giving statement. He identified the appellant in the Court who was seen with the girl in the evening of 19/1/2008. The statement of this witness is not dependable for the following reasons. (I) Papers dated 20/1/2008 and 24/1/2008 have not been produced and exhibited in Court to ascertain the version of this witness whether in fact photographs were published and he had seen the same. ( we are construing word paper as daily newspaper though in the statement of this witness, nowhere it is mentioned that he had seen the photograph in daily newspaper but in cross examination he has mentioned names of some papers). The best evidence was the photographs published in both the papers which attracted the attention of this witness and the very basis of his going to the police station are not filed and got proved by the prosecution. The only reasonable inference as per provision U/S.114-g of the Evidence Act can be drawn that the papers did not contain such photographs and if produced would have falsified the witness to that extent. (II) No TI parade of the appellant was held by the Investigating Agency to ascertain and to fix the identity of the appellant by this witness (PW.15). (II) No TI parade of the appellant was held by the Investigating Agency to ascertain and to fix the identity of the appellant by this witness (PW.15). There is no evidence brought on record by the prosecution that this witness produced both the papers in the police station, therefore, the police should have collected both the papers to verify his version and should have also held T.I parade to fix the identify of the accused if papers were not collected. In view of all these facts , dock identification of the appellant in Court for the first time after 12 months of the incident cannot be relied upon without corroboration to his testimony by way of evidence of T.I parade memo or newspapers. (III) He had seen only photograph of the girl in paper dated 20/1/2008 then why immediately he had not gone to the police station to give his statement that he had seen this girl describing her features and personality. No reasonable and plausible explanation has been given by this witness on this aspect. ( 10. ) The next important circumstance relied upon by the learned trial Court is the disclosure statement (Ex.P.19) made by the appellant before SHO S.P. Dubey (PW.19) and in presence of witnesses Rambabu (PW.11) and Takiasingh (PW.12) about discovery of fact as per provision U/S.27 of the Evidence Act. Scope and ambit of Sec.27 of the Evidence Act were enunciated by Privy Council in Pullukuri Kotayya Vs. King Emperor [AIR 1947 PC 67] in the following words, which have become locus classic us and the relevant observation is extracted thus:- It is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. 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 a knife; knives, were discovered many years ago. 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 a knife; knives, were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." ( 11. ) The above mentioned legal position was again discussed in detail in case of Prabhoo Vs. State of U.P [ AIR 1963 SC 1113 ] which is extracted hereunder: - "11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases [in the background events proved therein] is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at Section [27] and be reminded of its requirements. The section says: 27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. ( 12. ) The expression provided that together with the phrase whether it amounts to a confession or not show that the section is in the nature of an exception to the proceeding provisions particularly Section 25 and 26. It is not necessary in this case to consider it this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information recovered from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only so much of the information as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word distinctly means directly, indubitably, strictly, unmistakably. The word has been advisedly used to limit and define the scope of the provable information. The phrase distinctly relates to the fact thereby discovered is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered." (See Mohd. Inayatullah v. State of Maharashtra, SCCpp.831-32, paras 11- 12.). (emphasis in original) Also See Amitsingh Vs. State of Maharashtra [2007(1) SCC(Cri)582] and Anil @Raju Vs. Administration of Daman and Diu [(2008) 1 SCC (Cri) 72]. 12. In the light of aforesaid legal position about discovery of fact at the instance of the appellant, it is clear that confessional part of his memorandum statement (Ex.P.19) cannot be looked into being hit by Sees.25 and 26 of the Evidence Act which are reproduced for convenience:- Confession to police officer not to be proved. 25. No confession made to a police officer, shall be proved as against a person accused of any offence. Confession by accused while in custody of police not to be proved against him. 26. No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. ( 13. Confession by accused while in custody of police not to be proved against him. 26. No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. ( 13. ) In the instant case, learned trial Court has relied upon the statement of the appellant (Ex.P.19) and verification panchnama (Ex.P.20 and P.21) about place where dead body was thrown as well as seizure memo of empty liquor bottle (Ex.P.22) though investigating agency was already knowing place where dead body was found prior to disclosure statement (Ex.P.19) made by the appellant long back on 20/1/2008. The memorandum statement was recorded on 23/1/ 2008. Since place was already known to the Investigating Officer Shri Dubey (PW.19), it cannot be regarded as fact discovered at the instance of the appellant and same cannot be used as an incriminating circumstantial evidence against him. See Jaffer Husain Dastagir Vs. The State of Maharashtra [ AIR 1970 SC 1934 ]. The seizure of empty liquor bottle from open and accessible place to everybody is also not an incriminating circumstance. ( 14. ) Simple seizure of blue underwear from the bag of the appellant vide Ex.P.18 is not sufficient to establish that it was the underwear of the deceased. After seizure, this underwear was not got identified by parents or any other relative witness by holding T.I. Parade during the course of investigation. The seized underwear was not shown and identified by Ramsingh (PW.10), Manoharsingh (PW.13), Smt. Bhartibai (PW.20); uncle, father and mother of the deceased. The blue colour underwear said to have been seized from the bag of the appellant by SHO Shri Dubey (PW.19) was also not got identified by him in Court which could be the substantive piece of evidence. The seized underwear and empty liquor bottle was neither produced in the Court nor got identified by Shri Dubey and both the panch witnesses Rambabu (PW.ll) and Takiasingh (PW.12). Both the articles were not given Article number in the Court, therefore, there is no substantive piece of evidence to establish the identity of both the articles with seizure memo and the oral statements of all the three witnesses. Both the articles were not given Article number in the Court, therefore, there is no substantive piece of evidence to establish the identity of both the articles with seizure memo and the oral statements of all the three witnesses. The Supreme Court has discussed this issue about non production of seized property in Court during the course of trial in case of Jitendra Vs. State of MP [2004 SCC(Cri) 2028] .The learned trial Court has not at all considered and discussed the provision U/S.27 of the Evidence Act and even relied upon inadmissible part of document (Ex.P.19, P.20 and P.21). ( 15. ) On exclusion of evidence of Deepak (PW.15) about last seen of the appellant in the company of the girl and discovery of fact relating to the crime at the instance of the appellant as discussed herein above, there remains no other clinching evidence to form the chain of circumstances pointing out unerringly, excluding all reasonable hypothesis of innocence in favour of the appellant, towards the guilt of the appellant, therefore, in our considered view the appellant is entitled to be acquitted. ( 16. ) The statement of mother, father and uncle of the deceased is only regarding suspicion on the appellant and it is trite that suspicion howsoever strong, shall not take place of proof and conviction cannot be based on the basis of suspicion. ( 17. ) In the result, for the foregoing discussion, Death Reference is negated and Criminal Appeal filed by the appellant is allowed. Appellant is in jail. Learned trial Court is directed to release him forthwith if not wanted in any other criminal case. ( 18. ) Original Judgment is kept in Criminal Death Reference No. 1/2009 and a copy whereof be placed in the record of connected Criminal Appeal No. 734/ 2009. Office is directed to "send a copy of this judgment along with the record to the trial Court for information and immediate compliance. Order accordingly.