V.N. Sinha, J. – Instant death reference and criminal appeal arise out of judgment/order dated 21.01.2013/30.01.2013 passed by 9th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 564/2010/315/2012 whereunder the two appellants have been convicted for the offence under Sections 302, 376, 201/34 of the Indian Penal Code and have been imposed death sentence for the offence under Section 302 I.P.C. There is no separate sentence passed for the conviction under Sections 376, 201/34 I.P.C. 2. Prosecution case as set out in the fardbeyan, Ext. 5 of Ram Naresh Sahni, P.W. 6 recorded by Sub-Inspector Naresh Kumar, S.H.O., Maniyari P.S., P.W. 11 at Sinahiya bridge on 25.05.2010 at 7.45 hours is that informant, aged about 45 years, resident of village Lachhiram Asoi, P.S. Bhagwanpur, district Vaishali on 24.05.2010 had come to the house of Lakhindra Sahni in village Ratnauli along with the Barat party to attend the marriage of his son Dina Sahni. In the Barat Soni Kumari, aged about 10 years, daughter of his brother in law Bhikari Sahni, P.W. 3 has also come. For coming in the Barat informant had hired Maruti Van bearing no. WB02H 0494 of appellant no. 1. The Barat procession came to the house of bride at about 10 P.M. After arrival of Barat Soni Kumari felt sleepy and was made to sleep on the rear seat of Maruti Van. After sometime both the appellants went away with the Maruti Van. Cloth, ornament and Sindurdani required for marriage was kept in the Maruti Van. At the time of marriage search for Maruti Van was made to take out from the Van the cloth, ornament and Sindurdani required for the marriage but the van was not found. At about 2.30 A.M. appellant no. 1 was seen coming in his Maruti Van from western direction. Enquiry was made from appellant no. 1 regarding his conduct of taking away the Maruti Van without the permission of the informant. Earlier effort was made to trace Tamatar Sahni but he was also not found. At about 4 A.M. appellant no. 1 handed over the key of the Maruti Van to his brother Manjan Kumar, P.W. 7 and left for his village with other Baraties in Tata-407 vehicle. In the morning of 25.05.2010 while search was being made for Soni Kumari information came that dead body of a girl is found thrown east of the village near Sinahiya bridge. 1 handed over the key of the Maruti Van to his brother Manjan Kumar, P.W. 7 and left for his village with other Baraties in Tata-407 vehicle. In the morning of 25.05.2010 while search was being made for Soni Kumari information came that dead body of a girl is found thrown east of the village near Sinahiya bridge. After getting such information informant together with his other relatives went to Sinahiya bridge and found on the southern side of the bridge dead body of Soni Kumari thrown there. Near the dead body her underpant was also found. There was injury on her throat and blood was found smeared on her face, nose and eyes. Informant claimed in the fardbeyan that two appellants having raped Soni Kumari killed her and threw the dead body near Sinahiya bridge. In the light of the aforesaid fardbeyan S.I. Naresh Kumar, S.H.O. Maniyari P.S. took up the investigation and forwarded the fardbeyan to Maniyari P.S., on the basis of which Maniyari P.S. Case No. 74/10 dated 25.05.2010 for the offences under Sections 376, 302, 201/34 I.P.C., Ext. 5 was registered. During investigation P.W. 11 first prepared the inquest report of deceased Soni Kumari, Ext 4/1 and sent her dead body to S.K.M.C.H., Muzaffarpur for post mortem. Having sent the dead body for post mortem, Investigating Officer, P.W. 11 inspected the place of occurrence which is contiguous south of Sinahiya bridge where amidst bushes dead body, underpant of the deceased was found. Distance of the place where body of the victim was found from the bridge is about 10 ft. below surrounded by bushes. At the distance of 40 ft. from the place of occurrence there is timber, mango garden of Suresh Thakur and west of the place of occurrence is the cattle shed of Sitaram Thakur. North, south of the Sinahiya bridge there is a cemented railing. After the bridge there is village road going west, east to village Ratnauli and Mahanth Maniyari respectively. 3. Having inspected the place of occurrence, P.W. 11 conducted further investigation by examining Chathu Sahni, P.W. 4, Kishore Sahni not examined, Manjan Sahni, P.W. 7, Bhikari Sahni, P.W. 3, Naresh Sahni, P.W. 1. In the light of the statement of the witnesses, P.W. 11 arrested appellant no. 2 on 26.05.2010 from his village who made disclosure statement. In the light of the disclosure statement of appellant no. In the light of the statement of the witnesses, P.W. 11 arrested appellant no. 2 on 26.05.2010 from his village who made disclosure statement. In the light of the disclosure statement of appellant no. 2 P.W. 11 again came to the place of occurrence near Sinahiya bridge and recovered from the bushes near the bridge one plug wire attached with rubber of 2 ft. length vide seizure list, Ext. 7 which was used for strangulating the victim. Investigating Officer, P.W. 11 also received post mortem report, Ext. 2 on 26.05.2010. P.W. 11 was transferred from Maniyari P.S. on 12.06.2010. After transfer of P.W. 11 Alakh Narayan Prasad, P.W. 12 became Investigating Officer, who submitted charge-sheet no. 89/10 dated 30.06.2010 finding the case true against the two appellants for the offence under Sections 376, 302, 201/34 of the Indian Penal Code. After submission of charge-sheet cognizance of the offence found true in the charge-sheet was taken and the case was committed to the court of sessions for trial, whereafter charge was framed on 22.09.2010 against both the appellants. 4. In support of charge prosecution examined altogether 12 witnesses. P.W. 1 Naresh Sahni is the brother in law of informant P.W. 6 as he is married in the village Lachhi Ram Asoi within Bhagwanpur P.S. the native village of informant. P.W. 2 Raj Kishore Sahni is a co-villager of informant who also went with the Barat on 24.05.2010 to village Ratnauli, P.S. Maniyari, district Muzaffarpur. P.W. 3 Bhikari Sahni is the own brother in law of informant P.W. 6 and father of deceased Soni Kumari but had not come with the Barat party. He received information about the occurrence at his village from Maniyari P.S. on 25.05.2010 at about 11 A.M. P.W. 4 Chhathu Sahni is also co-villager of the informant and attended the Barat on 24.05.2010. P.W. 5 Devendra Sahni is a formal witness who proved his signature Ext. 1 on the inquest report Ext. 4/1. P.W. 6 Ram Naresh Sahni is the informant of the case. P.W. 7 Manjan Sahni is the brother of appellant no. 1. P.W. 8 Dr. Mumtaz Ahmad is the Professor of Forensic Medicine at S.K.M.C.H., Muzaffarpur who conducted post mortem on the dead body of the deceased and submitted post mortem report Ext. 2. P.W. 9 Garibnath Mahto, Advocate Clerk has proved the formal F.I.R. Ext. 3. P.W. 7 Manjan Sahni is the brother of appellant no. 1. P.W. 8 Dr. Mumtaz Ahmad is the Professor of Forensic Medicine at S.K.M.C.H., Muzaffarpur who conducted post mortem on the dead body of the deceased and submitted post mortem report Ext. 2. P.W. 9 Garibnath Mahto, Advocate Clerk has proved the formal F.I.R. Ext. 3. P.W. 10 Bipin Kumar is also an Advocate Clerk who has proved the endorsement made on the fardbeyan by Officer in charge, Maniyari P.S. after registration of the case vide Ext. 4. 5. Now we proceed to consider the evidence of the prosecution witnesses. P.W. 1 Naresh Sahni is resident of village Mahanth Maniyari and the brother in law of P.W. 6 informant by way of village relationship as parental home of his wife is in village Lachhiram Asoi within Bhagwanpur P.S. of Vaishali district, the native village of informant. He has stated in his evidence that the occurrence took place in the night about 6 months earlier when Barat had come to his village for marriage of the son of the informant. According to this witness Barat procession reached the house of the bride at about 10 P.M. Maternal cousin sister of the groom was sleeping in the Maruti Van. Articles required for marriage were also kept in the same Maruti Van. After marriage procession reached the house of bride all the persons sitting in the Maruti Car alighted therefrom. The girl who was about 9 years of age was, however, made to sleep in the car by the informant. The family members of the groom came to search for the marriage articles kept in the car but the car was not found there. The car was being driven by appellant no. 1 and one Madan. The witness further stated that he is not aware about the girl as to where did she go along with car. The witness could not know about the same. Around 3 A.M. witness left for his house. In paragraph 2 the witness stated that he learnt about the dead body of a girl being thrown near Sinahiya bridge at his house in village Maniyari. He also learnt at his house that appellant nos. 1 and 2 committed rape on the girl and thereafter killed her. Around 3 A.M. witness left for his house. In paragraph 2 the witness stated that he learnt about the dead body of a girl being thrown near Sinahiya bridge at his house in village Maniyari. He also learnt at his house that appellant nos. 1 and 2 committed rape on the girl and thereafter killed her. In paragraph 4 of his cross-examination the witness further stated that he came to village Ratnauli as a member of Barat party but returned from Barat in the night itself and learnt about the occurrence in the morning. He also admits that he did not see any occurrence. 6. P.W. 2 Raj Kishore Sahni the co-villager of P.W. 6 informant also accompanied the informant in the Barat of his son to village Ratnauli. According to witness the marriage procession (Barat party) reached the house of bride at 10 P.M. Maruti Van of appellant no. 1 was also part of the procession in which one girl whose name he does not know was made to sleep after the marriage procession reached the house of bride but she is the daughter of Bhikari Sahni. According to witness in the same Maruti Van ornament, cloths required for the marriage was also kept. The witness further states that after Barat party reached the house of the bride appellant no. 1 took the Maruti Van but he is not aware as to who accompanied him in the Maruti Van. The witness also says that he learnt about the death of the girl and that he returned from the Barat. In paragraph 2 of his cross-examination the witness states that Barat party reached the house of the bride at about 8 P.M. He took dinner and returned from Barat by Tata Maxi as there was no dance party in the Barat. The witness also confirmed that he never made any statement before the police. 7. P.W. 4 Chhathu Sahni is also a co-villager of the informant and had accompanied him in the Barat of his son. His evidence is also on the similar lines as that of P.W. 2. In paragraph 2 of his cross-examination witness has confirmed that he also did not give any statement to the police about the occurrence. 8. 7. P.W. 4 Chhathu Sahni is also a co-villager of the informant and had accompanied him in the Barat of his son. His evidence is also on the similar lines as that of P.W. 2. In paragraph 2 of his cross-examination witness has confirmed that he also did not give any statement to the police about the occurrence. 8. P.W. 3 Bhikhari Sahni is the brother in law of informant P.W. 6 and father of the deceased Soni Kumari but had not come to the Barat Party of the son of the informant in which his daughter Soni Kumari had come and the occurrence took place. P.W. 3, however, learnt about the occurrence telephonically from the officer of Manihari P.S. on 25.05.2010 at 11 A.M. and then went to Ratnauli village where he learnt that the two appellants have committed rape and killed her daughter. 9. P.Ws. 5, 9 and 10 Devendra Sahni, Garibnath Mahto and Bipin Kumar are formal witnesses as P.W. 5 proved his signature, Ext. 1 on the inquest report, Ext. 4/1. P.W. 9 Garibnath Mahto Advocate Clerk has proved formal F.I.R., Ext. 3. P.W. 10 Bipin Kumar, another Advocate Clerk has proved endorsement made over the fardbeyan about registration of the case. 10. P.W. 7 Manjan Sahni is the brother of appellant no. 1 who has not supported the prosecution case and has been declared hostile. 11. P.W. 8 Dr. Mumtaz Ahmad, Professor, Forensic Medicine, S.K.M.C.H., Muzaffarpur conducted post mortem on the person of the deceased Soni Kumari, his report is Ext. 2 wherefrom it appears that victim was raped and then killed by means of strangulation as injuries have been found not only on her private parts but also on the neck/ throat. 12. Now we come to consider the most important witness i.e. informant, P.W. 6 Ram Naresh Sahni who by profession is a rickshaw puller. On the date of occurrence he had come to village Ratnauli along with Barat of his son who was to be married with the daughter of Lakhindra Sahni. According to informant the time of occurrence is from 10 P.M. in the night of 24.05.2010 till 6 A.M. of 25.05.2010. According to informant he had come to attend Barat of his son in a Maruti Van of appellant no. 1. According to informant the time of occurrence is from 10 P.M. in the night of 24.05.2010 till 6 A.M. of 25.05.2010. According to informant he had come to attend Barat of his son in a Maruti Van of appellant no. 1. Before the marriage procession came to the house of the bride, the younger son of the informant and deceased Soni Kumari were in the same Maruti Van. In the Maruti Van ornament, cloths etc. was also kept. Deceased Soni Kumari was made to sleep alone in the Maruti Van along with ornament, cloths etc. According to informant after marriage procession reached the house of the bride appellants went away with the Maruti Van. In paragraph 2 informant claims that he was busy in connection with the marriage procession of his son. Informant did not find the Maruti Van when he came out to take the ornament, cloths etc. from the van. Later in the night appellant no. 1 returned alone in his Maruti Van, informant asked him to explain as to why did he go with the van without asking him but appellant no. 1 did not respond. At the time of return of the Maruti Van victim Soni Kumari was not in the van. Appellant no. 1 handed over the keys of the van to his brother Manjan Sahni, P.W. 7 and ran away. In the morning informant learnt about the dead body of a girl found near Sinahiya bridge and then went there and found dead body of victim Soni Kumari lying there. Near the dead body her underpant was also found thrown and there was injury on her neck. Having seen the dead body informant and others presumed that the victim has been raped by appellants and then killed. In paragraph 3 of the cross-examination informant has admitted that he did not see the occurrence but presumed that appellants have killed the victim. He further stated that he being busy in connection with marriage of his son could not see when the Maruti Van was taken by the appellants. In paragraph 4 of the cross examination informant confirmed the fact that appellant no. 1 came back with the Maruti Van to village Ratnauli at 2.30 A.M. At the time of return of the Maruti Van to Ratnauli village informant did not suspect appellant no. 1 that he has killed the victim. In paragraph 4 of the cross examination informant confirmed the fact that appellant no. 1 came back with the Maruti Van to village Ratnauli at 2.30 A.M. At the time of return of the Maruti Van to Ratnauli village informant did not suspect appellant no. 1 that he has killed the victim. He has also stated in the same paragraph that because of the crowd in the Barat he could not take notice of Soni Kumari. 13. Learned counsel for the appellants with reference to the evidence of the informant and other prosecution witnesses submitted that present is the case of circumstantial evidence but chain of circumstances pointing the needle of guilt towards the two appellants have not been connected as from the prosecution evidence, it does not appear as to how the deceased or her body reached and recovered from near Sinahiya bridge. He also submitted that there is also no evidence to suggest that victim remained sleeping in the Maruti Van when the appellants took the same without the permission of the informant. It is also submitted on behalf of the appellants that no suspicion was raised against the appellants when the Maruti Van reached the house of the bride second time at 2.30 A.M. In this connection, it is pointed out that in case there was any suspicion raised against appellant no. 1 he would not have been allowed to leave the house of the bride at about 4 A.M. along with other Baraties in Tata 407 vehicle. 14. In the background of the submission noted above, it is submitted that in the present case the two appellants have been named in the fardbeyan only on the basis of suspicion which in absence of proof cannot be a ground for conviction of the two appellants. It is also pointed out that the disclosure statement made by appellant no. 2 is not to be relied upon even for the purpose of recovery of the plug wire and the rubber, which as per disclosure statement was used by the appellants to strangulate the deceased as there being no ligature mark found on the dead body by P.W. 8 Dr. Mumtaz Ahmad, Professor of Forensic Medicine, S.K.M.C.H., Muzaffarpur, which is quite clear from perusal of post mortem report, Ext. 2. Mumtaz Ahmad, Professor of Forensic Medicine, S.K.M.C.H., Muzaffarpur, which is quite clear from perusal of post mortem report, Ext. 2. Recovery made from the place of occurrence at the instance of appellant may not be of any assistance to the prosecution. 15. To buttress the aforesaid submission learned counsel for the appellant placed reliance on the judgment of the Supreme Court in the case of Gambhir vs. State of Maharashtra, (1982) 2 Supreme Court Cases 351, paragraph 9. “When a case rests upon circumstantial evidence, such evidence must satisfy three 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. 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. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 16. In the light of the legal position enunciated with respect to circumstantial evidence we proceed to examine the evidence led in the present case. It appears victim Soni Kumari along with her brother and others had come to attend the Barat of her maternal brother, son of the informant. The Barat procession reached the house of the bride at about 10 P.M. Soni Kumari felt sleepy and was made to sleep in the Maruti Van in which she and others had come to the house of the bride along with others in the Barat party. In the Maruti Van ornament, cloths etc. required for the marriage from the side of the groom was also kept. After 10 P.M. onwards informant and other Baraties remained concerned with Barat and had no information about Soni Kumari. Late in the night, at the time of marriage informant required ornament, cloths etc. kept in the Maruti Van for marriage, to take out ornament, cloth etc. from the van, he came to look for the van but did not find the van at or near the house of the bride. Late in the night, at the time of marriage informant required ornament, cloths etc. kept in the Maruti Van for marriage, to take out ornament, cloth etc. from the van, he came to look for the van but did not find the van at or near the house of the bride. At about 2.30 A.M. informant saw the Maruti Van coming from western direction. After arrival of the Maruti Van informant made enquiry from appellant no. 1 as to why did he take the van without his permission but did not suspect any foul play by the appellants with respect to the victim Soni Kumari though she was neither available in the van nor in the Barat, which fact is admitted by the informant, P.W. 6 in paragraph 4 of his cross-examination because of the crowd present in the Barat. From the evidence of informant and other prosecution witnesses, it does not appear that victim girl kept sleeping in the Maruti Van until the same was taken by the appellants without permission of the informant. In view of the fact that none of the prosecution witnesses have affirmatively stated that victim girl kept sleeping in the Maruti Van until the same was taken by the appellants without the permission of the informant, it would be difficult for us to presume that when the Maruti Van was taken by the appellants without the permission of the informant, the victim girl was sleeping in the Maruti Van. 17. There is yet another aspect of the matter. Sinahiya bridge where the dead body of the victim was found is east of village Ratnauli. At 2.30 A.M. when appellant no. 1 returned with the Maruti Van he was seen by the informant coming from west and it could not be affirmatively said that he was returning from Sinahiya bridge as he was seen coming from opposite direction. 18. There is third aspect of the matter also. After arrival of appellant no. 1 with the Maruti Van at about 2.30 A.M. no suspicion was raised against him that he has committed wrong to the victim girl and was allowed to leave village Ratnauli at about 4 A.M. along with other Baraties on Tata 407 vehicle. 19. Counsel for the State opposed the submission but could not explain the omission in the evidence as noted above. 19. Counsel for the State opposed the submission but could not explain the omission in the evidence as noted above. According to him Barat reached the house of the bride at about 10 P.M. and there is definite evidence to suggest that Soni Kumari felt sleepy at that time and she was made to sleep in the Maruti Van, which is enough for this Court to hold that she remained sleeping in the Maruti Van until the van was taken by the appellants without the permission of the informant. Once such fact is accepted by this Court then there cannot be any other conclusion than the conclusion that Soni Kumari has been raped and killed by the appellants alone and none else. 20. Learned counsel for the State further submitted that informant being busy in connection with marriage procession of his son could not take notice of Soni Kumari after she was made to sleep in the Maruti Van. He could notice her disappearance only in the morning as according to learned counsel informant remained concerned in connection with marriage procession, attending to the Baraties as also solemnizing the marriage of his son. 21. In view of the rival submission, we considered the evidence of the informant and the prosecution witnesses and it appears to us that there is no definite evidence about the fact that Soni Kumari kept sleeping in the Maruti Van after the marriage procession reached the house of the bride until the van was taken by the appellants without the permission of the informant. It is also not understandable as to why suspicion was not raised against appellant no. 1 when he reached with his Maruti Van from the western side of village at about 2.30 A.M. and left along with other Baraties on Tata 407 vehicle at 4.30 A.M. 22. Prosecution having failed to indicate as to how the victim girl reached near Sinahiya bridge situate east of village Ratnauli either before or after death, we are not in a position to uphold the conviction of the two appellants and they are entitled for grant of benefit of doubt. The death reference is, accordingly, answered in negative. Judgment/order dated 21.01.2013/30.01.2013 is set aside. Appeal is allowed. Appellants are directed to be released forthwith, if not wanted in any other case.