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2010 DIGILAW 1669 (ALL)

SUNIYA v. STATE OF U. P.

2010-05-20

IMTIYAZ MURTAZA, KASHI NATH PANDEY

body2010
JUDGMENT Hon’ble Imtiyaz Murtaza, J.—Impugned herein is the judgement and order dated 12.12.2007 passed by Addl. Sessions Judge/Fast Track Court-I/Special Judge S.C./S.T. (Prevention of Atrocities) Act, Hathras in Sessions Trial No. 479 of 2005 whereby the appellant has been convicted under section 376 I.P.C. and sentenced to rigorous imprisonment for life, again under section 302 I.P.C. and on this count he has been sentenced to death. The appellant has again been convicted under section 3(1)(XII) of S.C./S.T. Act and sentenced to imprisonment for five years and fine of Rs. 2000/-. He has been further convicted under section 3(2)(5) of S.C./S.T. Act and sentenced to undergo imprisonment for life and a fine of Rs. 5000/- with default stipulation to undergo two months and five months imprisonment respectively. 2. The F.I.R has its genesis in the report scribed by Mahendra Singh, complainant, a native of village Garh Umrao which lies within the circle of P.S. Sadabad District Mathura. The victim Nirmesh/Lalitesh is the daughter of the complainant. At the relevant time, she was stated to be aged three and half years. Draped in brevity, the prosecution case is that on 6.2.2004, while Nirmesh/Lalitesh was playing outside her house, she suddenly disappeared. Upon her disappearance, she was searched for in every nook and corner. While the search was still going on, Kishan Singh and Shanker informed complainant that they had seen Nirmesh/Lalitesh in the company of Surendra Singh and Suniya (Jat by caste) who were on way to the house of one of them (Suniya) upon which they searched for his daughter in and around the house of Suniya but she was nowhere traceable nor were the afore-stated persons found present there. On 7.2.2004, he was apprised by Bhajan Lal, and Rakesh that while they were on way to open area outside the village (called jungle) for easing themselves, they had seen the accused persons carrying a plastic sack and thereafter keeping the said sack in the Kothari (Small room) situated in the plot of Sukhram Jat. He along-with others immediately proceeded to the indicated place where he found the body of his daughter stuffed in the sack which was kept on the roof of the Kothari. When the sack was opened, he found clotted blood which had oozed out of private part of her body. Her neck also bore signs of injury. He along-with others immediately proceeded to the indicated place where he found the body of his daughter stuffed in the sack which was kept on the roof of the Kothari. When the sack was opened, he found clotted blood which had oozed out of private part of her body. Her neck also bore signs of injury. It is lastly alleged that the accused persons had raped her daughter and subsequently strangulated her to death. 3. The written report was handed out at the police station on 7.2.2004 by the complainant and immediately, the report was lodged at 8.30 a.m at P.S. Sadabad. After registration of the case, investigation was taken over by Sri Fakir Chand Azad, Dy. Supdt of Police. The Investigating officer upon commencement of investigation, recorded the statement of Mahendra Singh, Smt. Rekha and inspected the place of occurrence and prepared the inquest report. He also collected blood stained clothes and prepared the site plan. The site plan of the place where inquest on dead body was conducted was marked as Ext Ka-10. He had also prepared the site plan of the place of commission of rape, which was marked as Ext. Ka-11. He also collected one cotton Dari, one quilt, two cotton Khesh with blood stains. He prepared the recovery memo, which was marked as Ext. Ka-12. After the arrest of Surendra and Suniya, their statements were recorded. On the pointing out of Suniya, one Angauchcha and underwear of Suniya which were blood stained were recovered and sealed and recovery memo, Ext. Ka-13 was prepared. He had also recorded the statements of witnesses Mahendra Singh and Rakesh and prepared the site plan of the place from where Angauchcha and underwear of Suniya were recovered, which was marked as Ext. Ka-14. He prepared the site plan of the place where the dead body was kept, and the same was marked as Ext. Ka-15. After the conclusion of the investigation, charge-sheet was submitted against Surendra Singh and Suniya under sections 376, 302 I.P.C. and 3(1)(12) of S.C.S.T. Act, which was marked as Ext. Ka. -16. 4. After submission of charge-sheet, case was committed to the Court of Sessions. The prosecution in order to substantiate its case, examined P.W. 1 Dr. P.P. Pathak, who conducted post mortem on the dead body, P.W. 2 Mahendra Singh alias Pappu, who is the complainant and has lodged the First Information Report. Ka. -16. 4. After submission of charge-sheet, case was committed to the Court of Sessions. The prosecution in order to substantiate its case, examined P.W. 1 Dr. P.P. Pathak, who conducted post mortem on the dead body, P.W. 2 Mahendra Singh alias Pappu, who is the complainant and has lodged the First Information Report. P.W. 3 Smt. Rekha, is the mother of the deceased. P.W.4 Kishan Singh, is the brother of complainant Mahendra Singh. P.W. 5 Ravindra Singh, is the clerk constable who prepared the papers leading to registration of F.I.R. P.W. 6 Surjeet Singh was at the relevant time was Sub Inspector posted in the police Station while P.W. 7 Fakir Chand Azad was the circle officer who conducted investigation of the matter. 5. The case of the appellant was one of denial and he abjured the guilt claiming to be innocent. He denied the incriminating evidence appearing against him. However, he did not propose to examine any defence witness to prop up his defence. 6. The Sessions Judge after appraisal of the entire evidence on record, held that the incriminating circumstances from which the conclusion of guilt is to be drawn are fully established attended with further finding that the circumstances prove that accused Suniya had taken away the deceased and murdered her after committing rape. However, learned Sessions Judge has acquitted accused Surendra. 7. The Sessions Judge recorded findings of conviction against appellant Suniya taking into reckoning the following circumstances: i. the deceased was last seen in the company of the accused and thereafter accused was also not found present in their house nor deceased was seen alongwith him; ii. Next morning witnesses had seen accused persons carrying something in the sack attended with the averment that they had seen him keeping the said sack on the roof of a kothari of Sukhram, and thereafter on opening the bag, dead body of the deceased was recovered; iii. On the pointing out of the accused underwear and Angauchcha were recovered and stains of semen were found. The investigating officer from the house of Suniya recovered quilt, bed sheet and Dari and in the scientific laboratory report human blood and semen was found on quilt, Dari, bed sheet and underwear 8. On the pointing out of the accused underwear and Angauchcha were recovered and stains of semen were found. The investigating officer from the house of Suniya recovered quilt, bed sheet and Dari and in the scientific laboratory report human blood and semen was found on quilt, Dari, bed sheet and underwear 8. We have heard Shri H.V. Shastri, learned counsel for the appellant, and Shri D.R. Chaudhary, learned Government Advocate assisted by Shri A.K. Singh, learned A.G.A., Shri V. K. Mishra, Learned A.G.A., Shri M.S. Yadava, Learned A.G.A. and Shri K.N. Bajpayee, learned A.G.A. for the State. 9. Sri H.V.Shastri appearing for the appellant contended that the evidence produced in this case is not sufficient and convincing to warrant the conviction of the appellant. He also contended that the evidence of P.W.2, P.W. 3 and P.W 4 cannot be accepted as they were both partisan and interested witnesses related to the deceased studded with the contention that the witnesses in their deposition have given a concocted version which cast severe doubts about truthfulness of the prosecution case. Per contra, learned A.G.A appearing for the State, has canvassed for the correctness of the view taken by the trial judge. 10. In order to appreciate the aforesaid rival contentions of the learned counsel for the parties, we have independently scrutinise the oral as well as documentary evidence appearing on record. 11. P.W. 1 Dr. P. P. Pathak, had conducted the post mortem examination on the dead body of Nirmesh/Lalitesh on 8.2.2004 at 1.50 a.m. and he enumerated the following ante mortem injuries found on the person of the deceased: 1. Abraded contusion 5 cm. x 1 cm. on front chin transversely placed. 2. Abraded contusion 4 cm. x 3/4 cm. transversely placed on front of middle of neck at the level of thyroid cartilage. 3. Contusion 3 cm. x 1 cm. transversely placed around the neck on left side at middle position. 4. Linear contusion at bridge of right pinna on inner side 4 cm. length. 5. Linear contusion 3 cm. long on outer part of right pinna 6. Lacerated wound in livia side of lasia maysio. It is swollen.....would 3 cm x 4 cm x muscle deep. It is upto perianeaum. Hymen is ruptured. There is discharge mixed with blood one swab. 12. length. 5. Linear contusion 3 cm. long on outer part of right pinna 6. Lacerated wound in livia side of lasia maysio. It is swollen.....would 3 cm x 4 cm x muscle deep. It is upto perianeaum. Hymen is ruptured. There is discharge mixed with blood one swab. 12. In the internal examination trachea was found broken and according to the opinion of the doctor, causative factor of death was “strangulation”. According to the further opinion of the doctor, the death occurred about one and a half day prior to the post mortem examination. The neck of the deceased, it was further opined, was strangulated with ‘safi’. The doctor found contusion all around he neck. On the order passed by the District Magistrate, the post mortem was conducted in the night. It would transpire from the record that despite opportunity having been given, the Doctor was not cross-examined by the defence. 13. P.W. 2 Mahendra Singh alias Pappu who is father of the deceased, deposed that on 6.2.2004, his daughter Nirmesh aged about three and a half year was playing outside the house. Since marriage was slated to be solemnised in the village, her daughter while playing had strayed from the house to see marriage procession and from there, she had disappeared. The search was conducted for her till late and in the meantime, they had searched for her in about 3 to 4 villages but she was nowhere traceable. When he enquired from Kishan Singh and Shanker of his village, they told that they had seen his daughter in the company of Suniya who was on way to his house. He went looking for Suniya but he was told to be away somewhere and his daughter was also not traceable there. He further deposed that next day, he was told by Man Singh and Rakesh that while they were going to ease themselves in the open field, they had noticed Suniya carrying something at about 5.30 a.m. They were told that they had seen Suniya hiding something in the Kothari (Small room) situated in the plot of Sukhram Jat. He further deposed that when he went in search of his daughter at the indicated place, he found the body of his daughter stuffed in a plastic sack which was kept on the roof of Kothari. The plastic sack was brought down from the roof. He further deposed that when he went in search of his daughter at the indicated place, he found the body of his daughter stuffed in a plastic sack which was kept on the roof of Kothari. The plastic sack was brought down from the roof. He also enquired from Kishan Singh and Shankar about his daughter and they informed him that they had seen his daughter near the house of Suniya going along-with Suniya. They had searched for Suniya but he was not present in his house nor his daughter was found there. In the morning Man Singh and Rakesh told him that they had seen Suniya carrying a sack and also informed that they had seen him keeping the sack on the roof of the Kothari of Sukhram Jat. When he had gone for search he recovered the dead body in a plastic bag on the roof of the Kothari situated in the plot of Sukhram. He brought down the sack and when it was opened the dead body of his daughter was recovered and at that time, oozed out blood was sticking to the private part and her neck also bore contusion marks. He further deposed that after seeing decomposed body of the daughter, he was distraught and was not within his senses. He also deposed that from a look at the body, he suspected that it was Suniya who had killed his daughter after sexual assault on her. He also deposed that thereafter, he took the body to his house and it was at his house that he wrote down the report. When the report was shown, he attested to it saying it was the self same report which was marked as Ex Ka 2. He deposed that he thereafter gave the written report to the police at the police station whereupon case was registered. He further deposed that he had named Surendra and Suniya as accused persons attended with further deposition that he had named Surendra on being told by 3-4 people of the village. 14. The witness was declared hostile as having been gained over and with the permission of the Court, the District Government Counsel (Crl.) cross-examined the witness at length. In the cross-examination, the witness stated that he was told by Kishan Singh and Shanker that they had seen the deceased in the company of Suniya and Surendra. 14. The witness was declared hostile as having been gained over and with the permission of the Court, the District Government Counsel (Crl.) cross-examined the witness at length. In the cross-examination, the witness stated that he was told by Kishan Singh and Shanker that they had seen the deceased in the company of Suniya and Surendra. Improving upon his deposition, he stated that the people of the village had told the name of Suniya. He further stated that it was Rakesh and Man Singh who had told him that they had seen Suniya taking plastic sack and they had not disclosed the name of Surendra. He conceded that in his report, he had mentioned the name of Surendra also but at the same time, he explained that he had named Surendra at the behest of village people. He denied the suggestion that he was falsely deposing in order to screen Surendra. The witness was again called for cross-examination. It was stated by him that when he brought the body of deceased to his house, lot of people had collected at his house and Surendra was one of them who had arrived for condolence. Amongst those who had come to his house were Sher Singh and his nephew Ranvir Singh. Prior to this incident, Sher Singh had contested election on four occasion for the office of Pradhan and he had been defeated in each election he had contested. He further stated that in the election, Surendra had opposed the candidature of Sher Singh who had publicly canvassed against Sher Singh. He also conceded that Sher Singh and Ranbir Singh were inimical to Surendra. He also stated that when the body of the deceased was still kept at his house, someone informed the police and alongwith police party, Circle officer Police had also arrived and Station officer had asked him to give written report and on dictation of Sher Singh and Ranbir Singh, he had named Surendra as well as one of the accused. He also stated that at that time, he was distraught and he was not in his senses. He further deposed that the inquest was got prepared by the Station officer who prepared other papers and subsequently, took Surendra with him. He further stated that Bishan Singh and Rajendra Singh were his full blooded brothers while Shanker and Man Singh were his cousins. He further deposed that the inquest was got prepared by the Station officer who prepared other papers and subsequently, took Surendra with him. He further stated that Bishan Singh and Rajendra Singh were his full blooded brothers while Shanker and Man Singh were his cousins. He further explained that the plastic sack in which body of deceased was recovered, was meant for keeping urea khad (fertilizer). The plastic bag had the brand of the name of the company printed on it. The plastic bag was stained with blood and the same was tied with a piece of Saree. He further stated that when he brought the dead body to his house, he brought the plastic bag and also piece of Saree and all these articles were sealed by the police. He further stated that when he came to know that he had been inveigled into naming Surendra Singh as accused, he protested with Sher Singh upon which he blurted out that he had avenged himself on Surendra. 15. The witness was cross-examined by the counsel appearing for appellant Suniya. He stated that when his daughter disappeared he was at his field and he had gone to the field to collect fodder for the cattle attended with the deposition that he had come back to his house at 6.30 p.m. He further stated that the house of Suniya was situated after about 5 or 6 houses of his own house and on the day of occurrence his daughter had disappeared at 5 or 6 p.m. He further stated that his daughter had gone to see marriage procession and she was taken away from there. He further stated that she had gone to see marriage procession (Barat) along-with other children. He further deposed that her daughter had gone to see marriage procession and she was watching marriage procession from the place where the house of Gopal was situated. He could not tell as to which of the children were with his daughter explaining that at that time he was at his field. When he came back from the field, he came to know that his daughter was nowhere traceable. By that time, the clock had struck 7 and thereafter he visited at least 2-3 villages searching for his daughter but she was not found any where. When he came back from the field, he came to know that his daughter was nowhere traceable. By that time, the clock had struck 7 and thereafter he visited at least 2-3 villages searching for his daughter but she was not found any where. When he came back after search from the two villages, he was told by Kishan Singh and Shanker that they had seen his daughter in the company of Suniya accused. He further stated that Kishan Singh and Shanker had met him at about 8 p.m. At the place where the Barat had come, he had conversation with them for about 2-3 minutes and thereafter they left. He further stated that whatever they had told him about the incident, he had mentioned the same in his report. He further stated that he also told the Sub Inspector that Suniya accused had lured away his daughter. He also stated that Raj Singh and Shanker had also told him that they had seen the girl going towards the house of Chhidda Jat. He conceded that this fact was not told to Sub inspector by him. He further stated that Sub Inspector did not ask him as to where he had seen the girl but had made specific query as to where he had found the dead body. The aforesaid people, he further stated, did not tell the specific time when they had seen the girl in the company of Suniya. He denied the suggestion that he was not told anything on this count by Shanker and Kishan Singh. He further stated that in between the houses of Man Singh and Rakesh and his house are 2 to 3 houses. Likewise, he further stated, 5-6 houses intervened between the houses of Kishan Singh and Shanker on one hand and his house on the other hand. He also stated that there was a chance meeting with Rakesh and Man Singh near the boundary next day at about 5 p.m and he had told this fact to Investigating officer but this fact was not mentioned by the investigating officer in the statement. The fact that Suniya was seen keeping the plastic bag on the roof of the Kothari of Sukhram in which the dead body had been stuffed, was told to the Investigating officer. The fact that Suniya was seen keeping the plastic bag on the roof of the Kothari of Sukhram in which the dead body had been stuffed, was told to the Investigating officer. He also mentioned the factum of Suniya carrying plastic bag in the F.I.R and also told this fact at the time of recording of his statement by the investigating officer. He also stated that at least 10 to 11 houses intervened between his house and the Kothari of Sukhram. He further stated that in the east of Kothari was the Pokhar and in the west was the field of Nahar Singh while in the north was the house of Sukhram and in the south was the house of Omkar.. He also stated that when the police arrived, the dead body was on the roof of Kothari of Sukhram and he had seen the place where the blood had fallen in droplets on the surface of the roof and also the plastic bag was stained with blood. He also stated that he had taken out the dead body from the plastic bag in the presence of number of village people including his mother, Mohan Singh and Shanker etc. The private part of the girl had signs of injuries. There were also signs of injuries on the nose and there was contusion marks in the neck and right side of the shoulder and excepting this there was no other injury. He further stated that he had not mentioned the fact that he had seen the injuries on the body of the deceased on the roof of the Kothari nor this fact was told to the investigating officer. He also stated that proceeding was not conducted by the investigating officer on the plot of Sukhram. He also stated that the dead body was taken down from the roof and was taken in his possession by the Invstigating officer. He denied the knowledge as to when and where the investigating officer completed inquest report. He also stated that Suniya belonged to his rival group. He denied the suggestion that he had named Suniya on account of his allegiance to the rival party. In further cross-examination, the witness stated that he had gone to the police station for lodging the report in the morning next day and he could not remember the precise time when he went there. He denied the suggestion that he had named Suniya on account of his allegiance to the rival party. In further cross-examination, the witness stated that he had gone to the police station for lodging the report in the morning next day and he could not remember the precise time when he went there. He also stated that before he could leave for lodging the report, the police had already arrived. On specific query, he told that the police had arrived at the scene before 2-3 hours of his lodging the report. Subsequently, he corrected himself stating that since he was very much upset he could not tell the precise time. He also stated that the report was not scribed by him on his own but was noted down on the dictation of village people. He also stated that he had scribed the report in front of police station but could not tell as to how many people were dictating report to him. He also stated that at the police station, people of both sides were present. He denied the suggestion that he had mentioned the story which had been concocted by the village people. He also denied the suggestion that Rakesh and Man Singh or anyone else had not seen Suniya carrying dead body in the plastic bag or keeping the same on the Kothari of Sukhram and that he was testifying to the wrong fact on account of his being inimical. He also denied the suggestion that the entire story of rape and murder of his daughter had been embroidered and the murder and rape had been falsely foisted upon the accused persons. He also denied the suggestion that he was persecuted on account of his being Harijan by the accused or that story of rape and murder was concocted. He also denied the suggestion that the accused had not committed the crime as mentioned in the F.I.R. 16. P.W. 3 Smt. Rekha who is mother of the deceased deposed that about three and a half year back, this occurrence took place in the evening while her daughter Lalitesh alias Nirmesh aged about three and half years, who was playing outside the house, had suddenly disappeared. They had made search for her but could not trace her. P.W. 3 Smt. Rekha who is mother of the deceased deposed that about three and a half year back, this occurrence took place in the evening while her daughter Lalitesh alias Nirmesh aged about three and half years, who was playing outside the house, had suddenly disappeared. They had made search for her but could not trace her. She further deposed that in the night Kishan Singh and Shanker told them that they had seen Nirmesh in the evening alongwith Suniya. Her husband had gone to the house of Suniya but could not find her or the accused there. On the next day, Man Singh and Rakesh told her husband that early in the morning while they were on way to the open field for easing themselves, they saw Suniya and one more person carrying something in a sack which they had kept on the roof of a Kothari constructed in the plot of Sukhram. They reached near the Kothari and saw that something had been hidden in the plastic bag. Her husband opened the sack and the dead body of her daughter Nirmesh was recovered. There were blood stains on her private part and there were injury on her neck and ear. She further deposed that her daughter was murdered after being ravished. She also stated that her husband and others had brought the dead body to the house. 17. In the cross-examination, she deposed that her daughter had gone missing between 4 -4, 1/2 p.m. in the evening. She did not know the place from where her daughter had gone missing. She emphasised the fact that she had not seen the disappearance by her own eyes. She further stated that each and every one joined in the search for her daughter from 4 p.m which continued throughout the night. While search for her daughter was being conducted, she was present in her house. She further stated that Kishan Singh was related to her as her brother-in-law and he lived in a common house shared by her while Shanker was her Jeth (elder brother of her husband) and his house was situated after about 2 to 4 houses. He denied the knowledge as to when Kishan Singh and Shanker left for searching for her daughter and which of the places they searched further stating that she was throughout present at the house. He denied the knowledge as to when Kishan Singh and Shanker left for searching for her daughter and which of the places they searched further stating that she was throughout present at the house. She also stated that she observed Pardah with her Jeth and she shrank from talking to him. What action Kishan and Shanker took, she had no knowledge and they must have kept her husband informed about it. She further stated that whatever she was deposing in the Court, it was based on talks with her husband. She also denied the knowledge as to where and from whom her husband had heard about her daughter. She also denied the knowledge as to who had seen her daughter in the company of Suniya. She also stated that no one told her about the girl. She further stated that the dead body was brought to the house at about 7.30 a.m next day. She denied the knowledge as to who brought the dead body to the house since at the time, the dead body was brought to the house, she was constantly on the run searching for her daughter and when the dead body had been brought to the house, she was told by someone that the dead body was at her house and plastic bag was lying near the dead body. On being queried she initially told that the plastic bag was used for keeping fertilizer and subsequently, she changed the statement stating that it was one used for keeping cement. She further stated that the plastic bag was white coloured. The plastic bag was tainted with blood. The said plastic bag was still kept at her house. She further stated that the plastic bag was shown to the police on the very day of occurrence. She could not recollect at what time it was shown as she was continuously bewailing. She also could not recall how long the police arrived after she had already arrived at her house. She also denied to have knowledge as to place from where the body was recovered. She attested to the fact that she had closely examined the body which bore linear contusion marks in the neck and also in the ear. The blood had also oozed out. She had not found any other injuries on any other part of the body. She also denied to have knowledge as to place from where the body was recovered. She attested to the fact that she had closely examined the body which bore linear contusion marks in the neck and also in the ear. The blood had also oozed out. She had not found any other injuries on any other part of the body. At that time the blood was also oozing out and the blood was oozing out from the lower part of the body. She also stated that sandal of her daughter and rope was also recovered from the house of Suniya and she could not tell how long the rope was. The Sandal and rope was recovered in the presence of her husband and the police personnel. She however stated that she was not present there. This fact was told to her by the people of locality. However, she could not recall the name of person who had told this fact to her. She also stated that quilt, bed roll etc. were also recovered from the house of Suniya. She also stated that all the articles which were recovered were taken away by the police personnel. She also stated that she herself did not see police personnel taking away the recovered articles. She could not recall as to in whose presence the articles were taken away by police personnel. She conceded that no one had seen Suniya committing rape on her daughter. She also conceded that no one had seen her daughter going in the company of Suniya. She also stated that in the night itself, higher ups of the police hierarchy had come. She denied that she had gone to police station. She also denied that her husband had gone to the police station. Initially she stated that no one witnessed murdering her daughter but subsequently she denied to have knowledge about it. She also denied that her statement under section 161 Cr.P.C. was recorded by the Investigating officer However she denied the suggestion that she was falsely deposing. She also denied the suggestion that her husband had concocted a false story in the greed of getting compensation from the Government. The learned Sessions Judge in ultimate analysis, held that her testimony was based on what she was told by her husband and therefore, it having complexion of hearsay evidence, was not admissible. She also denied the suggestion that her husband had concocted a false story in the greed of getting compensation from the Government. The learned Sessions Judge in ultimate analysis, held that her testimony was based on what she was told by her husband and therefore, it having complexion of hearsay evidence, was not admissible. The learned Sessions Judge relied upon her evidence only to the extent she stated that she saw blood oozing out from the private part of the deceased. 18. P.W. 4 Kishan Singh deposed that on 6.2.2004 Lalitesh alias Nirmesh daughter of his brother Mahendra had disappeared while she was playing outside the house in the evening. On that day, a marriage party had arrived in his village. He and Shanker had gone to see the marriage procession and it is at that time he had seen Nirmesh standing near the house of Chhidda Jat along-with Suniya and one another person. When he reached the house in the night, he came to know about disappearance of Nirmesh. He testified to the fact that he had told Mahendra that he had seen Nirmesh standing alongwith Suniya and one more person. He had gone to see Suniya at his house but he was not there. Next day in the morning, Man Singh and Rakesh informed Mahendra that Suniya and one more person were seen on the roof of Kothari in question stuffing something in a bag. They went there and recovered the dead body of Nirmesh. The report of the occurrence was lodged by Mahendra. The inquest of the dead body was prepared. He further stated that quilt, Dari, Chadar were also recovered from the house of Suniya. Police had arrested Suniya and on his pointing out, his underwear and Angauchcha was also recovered. In the cross-examination, he deposed that he had told Mahendra about seeing Nirmesh near the house of Chhidda Jat. He had told this fact at about 4 - 4.30 p.m. He testified that the fact which he had told about seeing the girl near the house of Chhidda Jat was correct and that this fact was told by him to his brother at his house. His brother had returned late in the night. He could not tell the time when he had returned. He also stated that he had told this fact to his brother alone and none else. His brother had returned late in the night. He could not tell the time when he had returned. He also stated that he had told this fact to his brother alone and none else. The marriage party had arrived at the house of Chhidda Jat. On the date of occurrence at about 5-5.30 p.m, he explained, he alongwith Shanker was on way back to the village after making purchases from the market attended with the averment that the informant was his full blooded brother while Shanker was not his real brother. He also stated that the fact that he had seen the girl at the indicated place, was not told by him to the police attended with further averment that he had no talks with the police. He also explained that at the time when he had seen the girl near the house of Chhida Jat, he had not noticed any one of the village except himself and Shanker attended with further elucidation that there were several people from the side of bridegroom. He could not tell who were the persons present as he had moved ahead. He also stated that besides the girl, other children were also there but he did not do counting of children nor could he tell their names. He also stated that children there consisted of both girls and boys. He also stated that he had not seen any one with the deceased girl except children. He further stated that neither the Circle officer police or the sub inspector had recorded his statement. If any statement mentioning his name was recorded, it could be at the dictate of his brother. He also stated that Man Singh had met him next day of the day on which the girl went missing near the door of Gopal Mehtar and at that time, he did not come across Mahendra. He explained that Man Singh was his cousin while Rakesh was called brother by Courtesy, he being one from his community. He also stated that till he was there, he did not see Man Singh and Rakesh talking to Mahendra. He further stated that he had told the fact at about 7 or 8 am that the body of the deceased was kept on the roof of Sukharam’s Kothari when man Singh and Rakesh had met him on way near the house of Gopal Mehtar. He further stated that he had told the fact at about 7 or 8 am that the body of the deceased was kept on the roof of Sukharam’s Kothari when man Singh and Rakesh had met him on way near the house of Gopal Mehtar. He further stated that he had seen the body in the barn of his house which had been brought there by his brother assisted by other people of the village. He further stated that he had not gone to see the body at the Kothari of Sukharam. He could not recall which of the persons had joined to fetch the body from the Kothari of Sukharam. He also stated that there was one more person accompanying Suniya but he could not recall his name. He also could not recall as to which place the said person belonged to. He also stated that after completing inquest, the police personnel had taken the body from the barn of the house. He also stated that his barn (Nohra where food-grains are stored) was a distance of 25 hands from his village. He also stated that when the body was brought to the barn of his house, the deceased was wearing frock and she had nothing on her body except frock. He could not recall the colour of the frock. The report was prepared at the time when the body was recovered. He had not seen anything else on the body except the frock. The body was carried in lap. He also stated that he had not gone to the police station for lodging the report. He further stated that the police had arrived about the time when the body was recovered. The police posse had come to the barn of his house straight-way. He also stated that the recovery was not made in his presence from the house of Suniya. He also added that at the time of recovery except him, the entire village was present. He further stated that he came to know from his brother that at the time of recovery from the house of Suniya, Man Singh Chhitar etc were present. He further stated that he came to know at about 6 -7 p.m that the police had come to the village. He also stated that he and Mahendra had a common house in which families of Mahendra and Rajendra were living separately. He further stated that he came to know at about 6 -7 p.m that the police had come to the village. He also stated that he and Mahendra had a common house in which families of Mahendra and Rajendra were living separately. The search for the girl had commenced at 4 or 6 p.m and he had joined his brother in the search besides Manoj, Rajendra and Ramdas etc. He further stated that he had not seen any taint on the frock of the deceased and at that time, blood was oozing out from her ear, neck and from her urine channel. He had not seen Suniya taking away the deceased attended with the fact he had no awareness who had seen Suniya taking away the deceased. At the time when he had seen Suniya, he was wearing pant and shirt attended with the averment that Suniya was seen taking plastic bag containing body by Man Singh and Rakesh. When confronted with the statement of witness Rekha in which she stated that the body was brought to the house and not in the barn as stated by him, he reiterated that he had seen the body kept in the barn. He also stated that his barn was at a distance of about 20- 25 hands from the house of Rekha. He also stated that the marriage procession had set out at about 5 or 6 pm while arrangement for stay of marriage party was made at Dharamshala. He came to know of disappearance of the deceased at about 4.30 p.m. He further stated that in the report, Suniya and one more person were named. He denied the knowledge whether anyone had witnessed accused committing rape, murder or abducting the deceased.. He also stated that he had a talk with his brother Mahendra at about 4.30 p.m and denied the suggestion that he was falsely deposing on account of his being brother of Mahendra. He further denied the suggestion that he had not seen the deceased standing with Suniya. He also denied the suggestion that he was deposing against Suniya on being primed by his brother. He also denied the suggestion that Suniya had not committed the crime attended with denial that he was deposing falsely in the greed of getting compensation from the Government. 19. He also denied the suggestion that he was deposing against Suniya on being primed by his brother. He also denied the suggestion that Suniya had not committed the crime attended with denial that he was deposing falsely in the greed of getting compensation from the Government. 19. P.W. 5 Ravindra Singh, constable clerk deposed that on 7.2.2004 he was posted as constable clerk at police station Sadabad. On that day informant Mahendra alias Pappu had lodged the report and case at case crime No. 40 of 2004 under section 376, 302 I.P.C. and 3(1)(x) Act was registered against Surendra Singh and Suniya for committing rape and murder of Km Nirmesh aged about three and half years. He prepared the chik F.I.R, Ext. Ka-3. He also prepared the chik No. 17 at 8.30 a.m. Copy of which is marked as Ext. Ka-4. In the cross-examination, he denied the suggestion that the written report had not been handed out by the informant at the police station. He also denied the suggestion that after receiving the information about the recovery of dead body, Inspector Vijendra Singh left alongwith force for place of occurrence without making any entry in the G.D. He also stated that on the information sent to C.O. on wireless Set, the circle officer police had reached the place of occurrence. He further denied the suggestion that on the basis of oral information, C.O. was informed on RT Set. He denied the suggestion that after the inquest of dead body had been done at the police station the written report was prepared and F.I.R. Was lodged. He also denied the suggestion that the appellant has been falsely nominated as accused in its bid by the police to show good work. He deposed that the RT information was sent to C.O. and other higher officers. He further stated that when the report was prepared, the Station House Officer was present but he did not know who was the duty officer at that time. The police had left the police station at 8.30 a.m. He had prepared the relevant papers at 8.30 a.m. and handed over the same to constable Satyaveer Singh. The first informant Mahendra had arrived at the police station at about 8.30 a.m accompanied with other persons namely, Shanker Lal, Kanshiram and Kishan Singh. The police had left the police station at 8.30 a.m. He had prepared the relevant papers at 8.30 a.m. and handed over the same to constable Satyaveer Singh. The first informant Mahendra had arrived at the police station at about 8.30 a.m accompanied with other persons namely, Shanker Lal, Kanshiram and Kishan Singh. The informant and persons accompanying him remained there at the police station for about half and hour and left the police station at about 9 a.m. He explained that he had copied the written report within 30 minutes and within next 15 minutes, he completed other formalities. they had stayed there for about 30 minutes and left the police station at 9 a.m. He took about quarter of an hour in preparing the report. The first informant was given carbon copy of chik report. He attested to the fact that the informant had left the police station at about 9 a.m. To begin with. he prepared chik F.I.R. and thereafter he had made entry in the G.D. He did not deny the fact that in Chik F.I.R. and in the G.D., he had mentioned the time as 8.30 a.m. To a query, he explained that he had mentioned the time taking into consideration the exact time when the informant had given information about the incident. In reply to the next question, he expounded that he had not made any entry other than the entry made in the chik F.I.R. In reply to a further question whether it did not amount to falsify the record, he replied that he had mentioned the time on the basis of exact time at what the informant had informed him about the incident. He denied the suggestion that he had falsified the record or that he had made wrong entry of time in G.D at the dictate of higher ups in the police hierarchy. 20. P.W. 6 Surjeet Singh is retired S.I. and deposed that on 7,.2.2004 he was posted as S.I. Sadabad and he had prepared the inquest report of Lalitesh alias Nirmesh aged about 4 years. In his opinion and in the opinion of the witnesses, Km. Lalitesh had been raped and thereafter, she had been strangulated to death and that after the inquest, dead body was dispatched for post mortem examination for ascertainment of correct cause of death. The inquest report, he stated, was marked as Ext. Ka-5. In his opinion and in the opinion of the witnesses, Km. Lalitesh had been raped and thereafter, she had been strangulated to death and that after the inquest, dead body was dispatched for post mortem examination for ascertainment of correct cause of death. The inquest report, he stated, was marked as Ext. Ka-5. He also prepared photo lash, Chalan lash, report to C.M.O. which were marked as Ext. Ka-6,7 and 8. He further deposed that HCP Hubbalal was posted at the police outpost and the witness identified his (Hub Lal) signatures, who prepared the recovery memo of torn underwear, which was marked as Ext. Ka-9. In the cross-examination, he deposed that on 7.2.2004 he had left the police station for the place of occurrence at about 8.30 a.m. alongwith the police force. He commenced inquest proceeding at 9.10 a.m. and that when he arrived at the place of occurrence, C.O. had also reached there. S.H.O. Vijendra Singh had gone alongwith him and on their direction he had prepared the inquest report. An old shawl was lying near the dead body. The dead body was sealed in the same shawl. The dead body was sealed alongwith the clothes she was wearing. The frock was of pink colour and one garland of white moonga was on his neck and there was red thread (dhaga) tied around her left hand. All the article were sealed alongwith the dead body and they were not removed from the dead body. He did not find any sack near the dead body. He was not informed that the dead body was kept in a sack, therefore, he did not know anything about the sack. The dead body was kept at an available place. There were contusions all around the neck and near the left eye. There were also contusions below the chin. There were contusions on the outer and inner side of right ear, and blood stain was present on the leg. He did not know whether blood was oozing or it had dried up. He further stated that he did not notice anything tied around the neck. He did not know whether Ext. Ka-9 was falsely prepared by Hubbalal. In further cross-examination, he deposed that he did not know where the inquest was prepared. He did not know whether blood was oozing or it had dried up. He further stated that he did not notice anything tied around the neck. He did not know whether Ext. Ka-9 was falsely prepared by Hubbalal. In further cross-examination, he deposed that he did not know where the inquest was prepared. Inquest was prepared at an available place and not inside the house but it was prepared within the abadi (populated area) of the village and it was not prepared either in the middle of the village or towards northern and western side of the village. They reached after registration of the F.I.R. He clearly stated that he had arrived at the village after the registration of the F.I.R and that he and inspector had arrived at the village first of all prior to the arrival of other police personnel. The report, he further stated was lodged at 8.30 am while he and inspector had arrived at the village at 9 a.m. The cloths on the dead body bore stains of blood and no other stains were noticed on the cloths. He could not recollect whether there was any pond (pokhar) around the place where the inquest was prepared. He also could not recollect who were the witnesses to the inquest report. He also could not tell whether mother of the deceased was present at that time. He vividly remember that Mahendra Singh and Kishan Singh were present. He could not tell how long they stayed there. He denied the suggestion that he did not prepare the inquest properly and he was falsely deposing and that he filled up the blank space in the inquest report subsequently. 21. P.W. 7 Inspector Fakirchand Azad had investigated the case and submitted charge-sheet against the appellant. In his cross-examination he deposed that he received information on R.T. set on 7.2.2004 and reached village Garhumrao after the arrival of SHO Vijendra Singh. He reached there within an hour after receiving the information and SHO was already present there. He stated that he had no knowledge whether Surendra was also there for condolence or not. He denied the suggestion that he and S.H.O. got the report registered. He denied the suggestion that on account of faction in the village, he got the name of Surendra introduced. He stated that he had no knowledge whether Surendra was also there for condolence or not. He denied the suggestion that he and S.H.O. got the report registered. He denied the suggestion that on account of faction in the village, he got the name of Surendra introduced. He further stated that he himself did not search for the underwear of Surendra in the pond but directed the police personnel to search for the underwear of Surendra. He further deposed after consulting the case diary that on the pointing out of Surendra and with the help of villagers, search was made for underwear but the same could not be recovered. He directed HCP Hubbalal to search for the underwear and denied the suggestion that Hubbalal had falsely shown the recovery of underwear. He denied the suggestion that Surendra was arrested on 7.2.2004 when he came in the house of informant for condolence and his arrest has been shown falsely. In the cross-examination on behalf of Surendra, he deposed that the factum of rape did not receive corroboration from any of the eye-witness nor any evidence was collected on that count attended with deposition that the medical evidence lent credence to the allegation of rape. He further deposed that the post mortem examination report and injury No. 6 and chemical examination of the clothes, reinforced the charge of rape. The clothes were recovered on the pointing out of Suniya. On a direct question regarding date and time and place of the recovery, he deposed that on 7.2.2004 from the barn (Nohre) of Surendra and at about 11 a.m. from the house of Suniya in the presence of Parsadi, Rajendra Singh, Basudeo and Lelladhar, recoveries were made. Separate recovery memo were prepared. First of all, he had prepared the recovery memo of the articles recovered from the house of Suniya. He could not give details of the boundaries of the house of Suniya. The house of Suniya, he further stated, was inside the village. The dead body of the deceased was present in front of the house of informant at 8 a.m. On his own he deposed that it was about 9 a.m. He had not conducted any examination about the semen recovered from the clothes and semen of Suniya. He did not recover any plastic sack near the dead body. The dead body of the deceased was present in front of the house of informant at 8 a.m. On his own he deposed that it was about 9 a.m. He had not conducted any examination about the semen recovered from the clothes and semen of Suniya. He did not recover any plastic sack near the dead body. The articles which were shown in the Court did not include any sack. The place where the dead body was recovered was at a distance of 150 yards form the place where the dead body was kept. No entry has been made in this regard. He stated that he was deposing according to his own guesstimate. He could not tell on whose pointing/guidance, site plan was prepared. He also stated that he prepared four site plans. The first site plan relates to where the inquest was held, second site plan relates to the house of Suniya, third site plan pertains to the place where the dead body was kept in a bag and the fourth place is the place of recovery of Angauchcha and blood stained and semen stained underwear on the pointing out of Suniya. He could not tell the name of the persons who had accompanied him at the time the recovery was made from the house of Suniya. Large number of persons were there but he could not tell as to how many persons had come inside the house. They did not search each other before entering into the house. He could not tell the name of the persons before whom Suniya has given his confessional statement. He himself stated that S.H.O. Sadar Vijendra and other police constables were present and Suniya was under custody. He was arrested by S.H.O. Sadabad. He was taken into custody at 7.30 p.m. on 7.2.2004. He further stated that at the time of arrest of Suniya he was not present as he was in Sadabad and he got information on wireless set about the arrest of Suniya. He could not tell as to how long SHO stayed in the village. He himself prepared the recovery memo of the clothes recovered from the house of Suniya and at that time, two witnesses were present and both were from the village. They were present in the crowed which had collected at the house of Suniya. He could not tell as to how long SHO stayed in the village. He himself prepared the recovery memo of the clothes recovered from the house of Suniya and at that time, two witnesses were present and both were from the village. They were present in the crowed which had collected at the house of Suniya. He did not make any effort for recording the statement of Suniya under section 164 Cr.P.C. Before taking him into custody attended with the deposition that Suniya was left in the custody of SHO. He did not know when S.H.O. had taken him into custody. He investigated the case on 7.2.2004 at about 8.30 a.m. He did not know as to who had seen Suniya taking away the girl. Kishan Singh and Shanker Singh had stated in their statements that they had seen deceased in the company of Suniya but exact time and place has not been mentioned but it was stated that they had seen Suniya near the house of Chhidda. In his presence District Magistrate and Superintendent of Police had reached the place of occurrence. They had gone their next day on 8.2.2004. However, he could not tell the time when they reached attended with the deposition that the entry has not been made in the G.D. He recorded the statement of Suniya in the evening in village Garhumaro on 7.2.2004. He could not recollect the place but it was a public place. He had sealed the recovered articles. He had prepared the sample seal of the recovered articles. On a query being made about the distance of the plot of Sukhram from the house of complainant, he deposed that he has already mentioned that it was about 150 yards. He further stated that the plot of Sukram is situated on eastern- southern side of the House of Suniya. He could remember the exact distance but it was at a distance of about 200 yards. He did not make any entry in the G.D. He denied the suggestion that no confession was voluntarily made by Suniya and the same was fabricated to give good account of his performance attended with the denial that nothing has been recovered from the house of Suniya. 22. In the instant case, there are no eye-witnesses to the occurrence and the whole case of the prosecution hinges on circumstantial evidence. 22. In the instant case, there are no eye-witnesses to the occurrence and the whole case of the prosecution hinges on circumstantial evidence. Now let us consider whether the prosecution placed acceptable materials to substantiate the charges levelled against the appellant. The settled preposition of law regarding the circumstantial evidence is clear as in the case of In Padala Veera Reddy v. State of A.P., AIR1990 SC 79, in which it was held that when a 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.’ 23. Learned counsel for the appellant has challenged the findings of the trial Court on various grounds. To begin with, learned counsel for the appellant argued that chain of circumstances is not complete; that the evidence of last seen is not proved by the prosecution, precisely stating that there is no eye-witness account of taking away the bag and keeping it on the roof of the Kothari of Sukhram and the Sessions Judge has erroneously relied upon hear say evidence. It is lastly argued that the recoveries from the house on the pointing out of the accused are not admissible under section 27 of the evidence Act. 24. As pointed out above, the first circumstance relied upon and made the basis of finding of conviction against the appellant by the trial Court is that of last seen of the deceased in the company of appellant. In the first information report lodged by Mahendra Singh, it is enumerated that he (Mahendra Singh) was informed by Kishan Singh and Shanker that they had seen Nirmesh going towards the house of Suniya in the company of Surendra Singh and Suniya. In the first information report lodged by Mahendra Singh, it is enumerated that he (Mahendra Singh) was informed by Kishan Singh and Shanker that they had seen Nirmesh going towards the house of Suniya in the company of Surendra Singh and Suniya. In his deposition, the first informant P.W.2 Mahendra Singh skipped the name of Surendra and he only deposed that Kishan Singh and Shankar had told him that they had seen his daughter going towards the house of Suniya in his company. Indubitably, he himself is not an ocular witness of the fact of last seen and his testimony has its basis in the information given to him by Kishan Singh and Shanker. By this reckoning, this part of testimony can well be said to have the complexion of hearsay testimony and therefore, it is inadmissible in evidence. Out of these two witnesses who had informed P.W.2 about “last seen of the deceased” alongwith appellant only Kishan Singh was examined as P.W.4. His deposition substantially is that while he alongwith Shanker had gone to see the marriage procession, he had seen Nirmesh alongwith Suniya and one another person standing near the house of Chhidda Jat. He did not name that person as Surendra. It is worthy of notice here that initially, the case of the prosecution was that the first informant was informed that witnesses named above had seen Nirmesh going alongwith Surendra and Suniya towards the house of Suniya. Upon scrutiny of what he stated in his cross-examination by P.W. 4, it would appear that he clearly deposed that he did not inform the police about his last seen of Nirmesh alongwith Suniya. The further deposition is to the effect that when he alongwith Shanker was standing near the house of Chhidda, no other person of the village was present and only Barati (members of bridegroom party) were present there and that other children were also present there alongwith Nirmesh. In his deposition, this witness did not give currency to the story of his having seen deceased going towards the house of Suniya. In his deposition, this witness did not give currency to the story of his having seen deceased going towards the house of Suniya. This witness also denied that his statement was recorded by the C.O. It would thus transpire that out of two witnesses who had last seen deceased in the company of the accused, P.W.4 Kishan Singh was examined and he too did not name Surendra in his deposition in Court but reiterated that he had seen Suniya alongwith one another person present there. P.W.4 Kishan Singh is the full blooded brother of the first informant and it is inexplicable from the record why he denied that his statement was recorded by the investigating officer. Further, he has not lent corroboration to the prosecution case that he had seen Suniya alongwith deceased going towards his house. In his examination in chief, he deposed that when police arrested Suniya, it was on his pointing out that the police had recovered his underwear and angaucha from his barn (Nohrey) but in his cross-examination, he conceded the fact that he was not an eye-witness to the recoveries attended with further averment that at the time of recoveries, entire village had converged and was present but he was not there. Thus, on the above analysis, we find it very difficult to believe the evidence of P.W.4 with regard to “last seen circumstance” and it can well be said that he is not a trustworthy witness as his evidence is at variance with the version as contained in the F.I.R and also in his deposition in his examination in chief. Apart from the testimony of P.W.4, there is no clinching circumstance on the record to lend credence to the story beyond reasonable doubt that the deceased was present in the company of appellant Suniya and thereafter she was not seen alive. 25. The second circumstance relied by the trial Court is that next morning Man Singh and Rakesh Singh had informed the complainant that while they were on way to open area for answering the call of nature, they had seen Suniya and Surendra carrying something in the sack and also saw them keeping the bag on the roof of a kothari constructed on the plot of Sukhram. It is worth mentioning here that the first informant is not an eye-witness of this circumstance as well. It is worth mentioning here that the first informant is not an eye-witness of this circumstance as well. In the first information report, P.W. 2 mentioned that Man Singh and Rakesh Singh had told him that while they were going to answer the call of nature towards the open area outside the village, they had seen Suniya and Surendra carrying something in a sack which they had kept on the roof of Kothari constructed in the plot of Sukhram. It is again worth mentioning here that Man Singh and Rakesh Singh had not been examined by the prosecution to prove this circumstance. By this reckoning, we cannot resist observing that the learned Sessions Judge erroneously relied upon this circumstance on the ground that the investigating officer had recorded statements of the informant, Kishan Singh, Rakesh Singh, Man Singh and Shankar under section 161 Cr.P.C on 7.2.04 and 8.2.04 in which they had told the investigating officer that in the evening of 6.2.04 they had seen Nirmesh daughter of complainant in the company of accused. Thereafter, Man Singh and Rakesh Singh were interrogated by the Investigating officer and they had told him that had seen accused carrying something in a sack which they had kept on a kothari constructed in the plot of Sukhram. It is significant to mention here that these witnesses were not examined during the trial but the learned Sessions Judge relied upon these statements of the witnesses given to the investigating officer during investigation to lend credence to the testimonies of P.W.2 and P.W.4. The law is well enunciated as reinforced by catena of decisions that the statements of the witnesses recorded during investigation without their being produced in Court has got no legal value and cannot be used to support any evidence. 26. One such case on the point is Ramprasad v. State of Maharashtra, (1999) 5 SCC 30 , in which the Apex Court has held as under: ‘’Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code.’’ 27. In view of above discussion and regard being had to the settled principles of law, we are of the firm opinion that there is no admissible evidence on record to prop up the version that witnesses had seen appellant carrying a sack and keeping it on the roof of a kothari which was discovered by the first informant taking cue from the above witnesses and that the dead body was recovered on opening of the sack. Therefore, in our considered opinion, the learned Sessions judge has erroneously relied upon this circumstance, which does not commend to us for acceptance. 28. The last circumstance relied upon by the learned Sessions Judge is of recoveries of quilt, bed sheet, Dari and underwear on which human blood and semen were found stuck. The learned Sessions Judge observed that the recoveries in the absence of any independent witness corroborating the testimony of the investigating officer is admissible under section 27 of the Evidence Act. In this connection, it would appear that two recovery memos were prepared. First recovery pertains to memo marked as Ext. Ka-9, in which recovery of an underwear is displayed. A perusal of the recovery memo evinces that on 9.2.2004, one underwear, blue, white with black strips of Surendra was recovered in the presence of Ranveer Singh and Sher Singh from the Pokhar of village Garhumrao. Another recovery memo pertains to blood stained Cotton Dari, one quilt, two Khesh cotton and the same were recovered from the house of appellant and recovery memo marked as Ext. Ka-12 was prepared. A Perusal of the recovery memo shows that on 7.2.2004, one Dari, one Khesh of green colour with square, one old khesh and one quilt was recovered in the presence of Vasudeo and Leeladhar from the house of Suniya, and the clothes were smeared with blood. The investigating officer also prepared another recovery memo, marked as Ext. Ka-13 on 7.2.2004 in the presence of Parsadi and Rajendra Singh. A Perusal of the recovery memo shows that on 7.2.2004, a blood stained underwear of Suniya and one Angauchcha which was used for strangulating Nirmesh after committing rape was recovered from the heap of cow dung kept inside a tin from the (Nohrey) barn of Surendra in the presence of Parsadi and Rajendra Singh on the pointing out of Surendra and Suniya. Ext. Ext. Ka-9 and Ex Ka 12 recovery memos indicate that the alleged articles which were shown to be recovered, were not recovered on the pointing out of accused persons. So far as Ext. Ka-13 is concerned, it evinces that recoveries were made on the pointing out of appellant and acquitted accused Surendra jointly from the barn (Nohrey) of accused Surendra. It is also siginficant to note that Surendra was also prosecuted alongwith the appellant but during the trial, the witnesses abjured his name in connection with the first circumstance of last seen and consequently, he had been granted clean acquittal by the trial Court. A perusal of the recovery memos shows that the recoveries were not made in pursuance of any disclosure statement. No disclosure statement was made by any of the accused persons and therefore, these recoveries are not admissible under section 27 of the Evidence Act. Section 27 of the Evidence Act reads as under: “27. How much of information received from accused may be proved- 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.” It would transpire from a close scrutiny that Section 27 of the Evidence Act lifts the ban qua the admissibility of the confession/admission made to the police to a limited extent by allowing proof of information of a specified nature furnished by the accused in police custody and in that sense section 27, is considered to be an exception to the rules embodied in sections 25 and 26 of the Evidence Act. 29. In the above perspective, the case of Bahadul v. State of Orissa, AIR 1979 SC 1262 , is worthy of notice in which the Apex Court in para 4, made the following observation : “As regards the production of the tangla by the accused before the police, the High Court seems to have relied on it as admissible under section 8 of the Evidence Act. As there is nothing to show that the appellant had made any statement under S. 27 of the Evidence Act relating to the recovery of this weapon hence the factum of recovery thereof cannot be admissible under Section 27 of the Evidence Act. Moreover, what the accused had done was merely to take out the axe from beneath his cot. There is nothing to show that the accused had concealed it at a place which was known to him alone and no one else other than the accused had knowledge of it. In these circumstances, the mere production of the tangla would not be sufficient to convict the appellant.” 30. In the case in hand, unfortunately, an innocent child was ravished brutally and done to death in a most barbaric manner but we have administered caution into ourselves that mere heinous nature of crime should not at all adversely affect the approach to the evidence and that detached approach to the whole case with an anxious desire to find out the real truth is needed and that no innocent person should be punished because of the heinous nature of the barbaric crime. We are constrained to observe that the prosecution from the very inception has not come up with clean hands. Earlier according to the prosecution, Surendra (acquitted accused) and Suniya, present appellant, have committed the crime but during the examination in chief, the first informant, who happens to be the father of the deceased girl, stated that he had made Surendra accused at the instance of one Sher Singh. He explained that he was distraught at that time and therefore, he was inveigled by Sher Singh into naming Surendra as one of the accused in the case. It has also come in evidence that Sher Singh who has been defeated by Surendra in election for the office of Pradhan, had named Surendra and nominated him in the F.I.R as accused alongwith Suniya in this heinous and barbaric crime. According to the deposition of P.W. 2, Mahendra Singh when he was confronted as to why he has wrongly named Surendra, he clearly stated that it was at the instance of Sher Singh and when he confronted Sher Singh on this count, he mirthlessly replied that he has avenged himself on Surendra. According to the deposition of P.W. 2, Mahendra Singh when he was confronted as to why he has wrongly named Surendra, he clearly stated that it was at the instance of Sher Singh and when he confronted Sher Singh on this count, he mirthlessly replied that he has avenged himself on Surendra. Further, from a close scrutiny of the materials on the record, it does transpire that the F.I.R. has come into existence after the recovery of dead body. The learned Sessions Judge dubbed the testimony of P.W. 3 Smt. Rekha as being based on hearsay on whatever was told to her by her husband except that she had seen blood oozing out from the private part of the deceased and therefore, it was held that her testimony being based on hearsay is not admissible. 31. Second pivotal aspect is the plastic sack in which the dead body of the deceased was kept according to the own showing of the prosecution. The said sack has not been seized by the investigating agency and there is no mention anywhere about it in the investigation. So far as the story pivoting on plastic sack is concerned, the statements of the prosecution witnesses are replete with contradictions. According to the statement of the father of the deceased girl, P.W. 2, deposed that the dead body was recovered in the sack which was kept on the roof of a kothari constructed on the plot of Sukhram, and was stained with blood. He brought the dead body in his lap to his house alongwith the sack. The mother of the girl also deposed in his deposition that the said sack was kept beside the dead body when it was brought to her house. But surprisingly enough, the investigating officer in his deposition stated that he had no knowledge about the plastic sack nor did he find any sack near the dead body while the dead body was kept in the barn (Nohrey) nor was he informed by anyone that the dead body was kept in a sack, when it was recovered. All these circumstances do indicate that the prosecution has not come with clean hands. 32. For the reasons stated above, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt. All these circumstances do indicate that the prosecution has not come with clean hands. 32. For the reasons stated above, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt. The circumstance of last seen together as tried to establish by the prosecution by means of evidence brought on record does not lead to the inference that it was accused who committed the crime. We are also of the view that the chain of the circumstances, by all accounts, is not complete and the same leave reasonable ground for the conclusion consistent with the innocence of the appellant. To rephrase, it does show that the facts disclosed are not consistent with the hypothesis of the guilt of the accused and the learned Sessions Judge has erroneously convicted the appellant relying upon the evidence adduced by the prosecution which did not inspire confidence on account of inconsistencies and contradictions permeating it. 33. The appeal is accordingly allowed. The order dated 12.12.2007 passed in S.T. No. 479 of 2005 by Addl. Sessions Judge/FTC I/ Special Judge S.C./S.T. (Prevention of Atrocities) Act, Hathras is hereby set aside and the appellant is acquitted of the charges. The appellant is in jail. He shall be released forthwith unless wanted in any other case. The reference made by the trial Court is also rejected. The certified copy of this judgement shall be communicated to the Court below for compliance.