JUDGMENT SUNIL KUMAR SINHA, J. This appeal is directed against judgment dated 31-5-2006 passed in Sessions Trial No. 339/2005 by 12th Additional Sessions Judge (FTC), Raipur (CG). By the impugned judgment, the appellant has been convicted and sentenced in the following manner with a direction to run the sentences concurrently : Conviction Sentence Under Section 363, IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months Under Section 376, IPC Rigorous imprisonment for 10 years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months Under Section 302, IPC Imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months. Under Section 201, IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months. 2. The facts, briefly stated, are as under: Deceased Ku. Neera was daughter of Kejuram (PW-1). She was missing since the evening of 15-8-2005. A search was made by the parents. When she could not be searched, a missing report (Ex. P-33) was lodged by Kejuram (PW-1) at about 11:30 a.m. on 16-8-2005. Later on, on recording 161, Cr. P. C. statements of Mahendra (PW-2), Rajeshwaribai (PW-16) and Baisakhinbai (PW-5), it revealed that the deceased had gone with the appellant on a motorcycle. The appellant was then taken into custody on 17-8-2005 and his discovery statement (Ex. P-11) under Section 27 of the Evidence Act was recorded and dead body of the deceased was seized at his instance vide seizure memo (Ex. P-12). Inquest (Ex. P-7) on the dead body was prepared and it was sent for post-mortem. The post mortem examination was conducted by a team of 3 doctors including Dr. Ulhas Gondale (PW-18). The autopsy surgeon found that it was a case of strangulation by using a ligature and the death was homicidal in nature. There was a deep ligature mark around the neck of the deceased. It was horizontally placed and was regular. A ligature (piece of cloth) was also found around the neck. There were other injuries also. The autopsy surgeon also found injuries on the inner portion of labia minora. There was a deep ligature mark around the neck of the deceased. It was horizontally placed and was regular. A ligature (piece of cloth) was also found around the neck. There were other injuries also. The autopsy surgeon also found injuries on the inner portion of labia minora. The post mortem report is Ex. P-8. Various articles were seized during the course of investigation. They were sent for chemical examination to Forensic Science Laboratory, Raipur, from where a report (Ex. P-34) was received. According to the FSL Report (Ex. P-34), human spermatozoa were found in the slides prepared from the vaginal swab of the deceased and they were found in the slide prepared from the semen of the appellant. The slides were not sent for serological examination. The prosecution came up with the case that the appellant abducted the deceased from Village Jhanki and took her on his motorcycle to Village Sarkhiroad where she was subjected to forcible intercourse by the appellant and thereafter she was strangulated by him and the dead body was left at that place. Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances on which the Sessions Judge relied and convicted and sentenced the appellant as above: (i) The deceased was last seen with the appellant at about 5:30 p.m. on 15-8-2005, (ii) The appellant gave discovery statement (Ex. P-11) on 17-8-2005 and the dead body of the deceased was recovered at his instance on the same day. (iii) Human spermatozoa were found in the slides prepared from the vaginal swab of the deceased. 3. Mr. S. K. Dadsena, learned counsel appearing on behalf of the appellant has argued that the above circumstances were not fully established; they were not of conclusive nature and tendency; it was not established that the deceased was seen in the company of the appellant and it was also not established that the dead body was recovered on the discovery statement made by the appellant, therefore, the conviction based on the above circumstantial evidence cannot be sustained. 4. On the other hand, Mr. Akhil Mishra, learned Deputy Government Advocate appearing on behalf of the State/respondent opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the record of sessions case. 4. On the other hand, Mr. Akhil Mishra, learned Deputy Government Advocate appearing on behalf of the State/respondent opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the record of sessions case. 6. Firstly, we shall look into the circumstance of last seen. The prosecution has mainly examined 3 witnesses to prove the circumstance of last seen. They are Mahendra (PW-2), Rajeshwaribai (PW-16) and Baisakhinbai (PW-5). 7. Mahendra (PW-2) was a resident of Village Jhanki. He deposed that on 15-8-2005, at about 5-5:30 p.m., he was working in his field. He saw that the appellant was going on a motorcycle and Ku. Neera (deceased) was sitting with him as a pillion rider. The motorcycle got trapped in the mud. The appellant took out the motorcycle from mud and thereafter he went with the deceased on the motorcycle. They went towards Irrigation Colony Abhanpur on the said motorcycle. Mahendra (PW-2) was cross-examination by the defence. He deposed that the motorcycle was appearing as Hero Honda Splendor. He admitted that he cannot tell the correct name of the motorcycle. However, it was of blue colour. But later on, he added that it was Hero Honda Splendor. He admitted in the cross-examination that he had told the police that the motorcycle was Hero Honda or Hero Splendor or it can be Splendor Plus. However, he had told that it was a green coloured motorcycle. He very clearly admitted in his cross-examination that he had not told the name of the appellant to the police while giving his case diary statement (Ex. D-2). He also denied to give another portion of Ex. D-2, which was relating to the clothes worn by the motorcycle rider. 8. If the appellant was well known to this witness, as he claimed in his examination-in-chief, he must have told his name to the police while recording his case diary statement (Ex. D-2), but the name of the appellant is an omission in his case diary statement. 9. Rajeshwaribai (PW-16) is the elder sister of the deceased. According to her, she was present in the house of the deceased on 15-8-2005. Her husband Krantidas Soni (PW-17) was also present in the house of the deceased on the said date. D-2), but the name of the appellant is an omission in his case diary statement. 9. Rajeshwaribai (PW-16) is the elder sister of the deceased. According to her, she was present in the house of the deceased on 15-8-2005. Her husband Krantidas Soni (PW-17) was also present in the house of the deceased on the said date. She deposed that on the fateful day, at about 5 p.m., she was sitting in her parents house. Her husband was also sitting with her. Ku. Neera (deceased) was also sitting with them. Her younger sister Dimeshwari was also with them in the house. At that time, her father, i.e., Kejuram (PW-1) was not present in the house. Pointing towards the appellant from the dock, she deposed that the appellant had came to their house in the evening and had asked about her brother Chhabilal (PW-15). She told that Chhabilal (PW-15) had gone to the fields. Thereafter, the appellant said her sister - Neera (deceased) to tell him the way of the field. Neera (deceased) thereafter went with the appellant. She could not see that how the appellant had come to their house. She had only heard the sound of motorcycle. When the appellant was asking about her brother, she had seen the appellant. Neera (deceased) thereafter did not return to the house. Later on, a report was lodged in police station. 10. The other witness of the last seen is Baisakhinabai (PW-5). She was also a resident of Village Jhanki. She deposed that she was knowing the appellant, however, she was not knowing Ku. Neera (deceased), daughter of Kejuram (PW-1). She deposed in clear words that she did not know anything about the incident. However, she further deposed that on the fateful day, in the evening, she was working in her field. She had seen that the appellant was going on a motorcycle and a girl was sitting as a pillion rider behind him. She deposed in clear words that she could not identify as to who was the said girl. 11. Krantidas Soni (PW-17) is son-in-law of Kejuram (PW-1). Though he deposed that Neera (deceased) had gone with somebody yet he clearly deposed that he could not see the person with whom she had gone. 12. She deposed in clear words that she could not identify as to who was the said girl. 11. Krantidas Soni (PW-17) is son-in-law of Kejuram (PW-1). Though he deposed that Neera (deceased) had gone with somebody yet he clearly deposed that he could not see the person with whom she had gone. 12. So far as circumstance of last seen together is concerned, the principle is that the witnesses must have lastly seen the deceased in the company of the appellant and their evidence should be sure about the fact that the persons whom they had seen were the appellant and the deceased only. If it comes in their evidence that they could only identify either of them and they could not identify the other, their evidence of last seen together would vitiate because in such situation, it cannot be held that the appellant and the deceased were accompanying each other. Krantidas Soni (PW-17) has clearly deposed that he had not seen the person who came to his in-law’s place. Baisakhinbai (PW-5) only deposed that she could identify the appellant only but she could not identify the girl who was accompanying the appellant. Therefore, the evidence of Krantidas Soni (PW-17) and Baisakhinbai (PW-5) was not sufficient to prove the circumstance of last seen together. 13. Kejuram (PW-1) deposed that his daughter Neera (deceased) was missing since the evening of 15-8-2005. He lodged missing report in Police Station Abhanpur. On the fateful day, he had gone to Abhanpur. He returned at about 6 p.m. and came to know that his daughter Neera (deceased) was missing. He made search of his daughter in the village. When he could not find her, he returned to his house after sometime. He deposed in clear words that when he returned to his house, his daughter Rajeshwaribai (PW-16) told him that one boy had visited their house and Neera (deceased) had accompanied him for telling him way to the field as he wanted to meet her brother Chhabilal (PW-15) who was in the fields at that time. Neera (deceased) had gone with the boy. Kejuram (PW-1) further deposed that in the next morning, when he made further search, Baisakhinbai (PW-5) told that Neera (deceased) had gone with a boy, namely, Jai Kumar (appellant). Thereafter, they went to Village Abhanpur. They traced appellant Jai Kumar and asked about the deceased. Neera (deceased) had gone with the boy. Kejuram (PW-1) further deposed that in the next morning, when he made further search, Baisakhinbai (PW-5) told that Neera (deceased) had gone with a boy, namely, Jai Kumar (appellant). Thereafter, they went to Village Abhanpur. They traced appellant Jai Kumar and asked about the deceased. Jai Kumar (appellant) told them that the deceased had not come with him. Thereafter, they took Jai Kumar (appellant) to Irrigation Colony. The appellant faced Baisakhinbai (PW-5) who asked him about the girl who was accompanying with him. Seeing all these, Kejuram (PW-1) immediately went to the police station and then the report was lodged by him. 14. The above evidence of Kejuram (PW-1) would show that before lodging the missing report, on 16-8-2005, he had already met Rajeshwaribai (PW-16), Mahendra (PW-2) and Baisakhinbai (PW-5), who claimed that they had seen the appellant with the deceased. The contents of the missing report would show that Kejuram (PW-1) did not disclose to the police that the above witnesses had seen that his daughter Neera (deceased) had gone along with the appellant. The above facts are not at all mentioned in the report. It is simply mentioned in the report that her daughter was missing since 5:30 p.m. of 15-8-2005 and her whereabouts are not known since the said time, therefore, she should be searched and nothing more. If Rajeshwaribai (PW-16), Mahendra (PW-2) and Baisakhin-bai (PW-5) had told Kejuram (PW-1) that the girl had gone with the appellant on his motorcycle, these facts must have been mentioned by Kejuram (PW-1) in the report dated 16-8-2005. We are of the view that the evidence of Mahendra (PW-2), Baisakhinbai (PW-5) and Rajeshwaribai (PW-16) relating to last seen together, in light of evidence of Kejuram (PW-1), was not reliable and it was not proved by the evidence of above witnesses that the deceased was lastly seen in the company of the appellant at about 5:30 p.m. on 15-8-2005. 15. It comes in the prosecution case that when the appellant was interrogated by the police, saying that he was moving on a motorcycle with a girl, the appellant had explained them that he was with one Ku. Kalyani (PW-11). Kalyani (PW-11) has been examined by the prosecution. Kalyani (PW-11) was a resident of Village Bakhtara. She was studying in 6th standard. Kalyani (PW-11). Kalyani (PW-11) has been examined by the prosecution. Kalyani (PW-11) was a resident of Village Bakhtara. She was studying in 6th standard. She deposed that at about 4-4:30 p.m., the appellant had visited her house on a motorcycle. She had some muscle strain in her leg. The appellant told her that he will take her for some medicine. Thereafter, she had accompanied the appellant on his motorcycle and went to his house from where the appellant left her back to her house at about 6 p.m. and thereafter the appellant returned back alone on the motorcycle. This is the entire evidence of this witness which she gave in examination-in-chief. There was no cross-examination of this witness by the public prosecutor or by the defence. There is no reason to disbelieve the testimony of this witness. If the appellant was present with this witness till 6 p.m. and she had visited on his motorcycle with the appellant, how he can go to Village Jhanki at about 5:30 p.m. We further note that Baisakhinbai (PW-5) had seen that a girl was accompanying the appellant. If we rely on the evidence of Baisakhinbai (PW-5), she said that a girl was accompanying the appellant. There is a possibility that instead of the deceased, Kalyani (PW-11) may have been seen by Baisakhinbai (PW-5). 16. We further note that the deceased was alleged seen alive in the company of the appellant at about 5:30 p.m. on 15-8-2005 and her dead body was seen at about 15:45 hours on 17-8-2005. Therefore, there was a long time gap between the deceased allegedly seen alive with the appellant and the dead body found. Thus, even if we take that she was seen with the appellant at that time, a possibility of any other person coming in between also cannot be fully ruled out. 17. In view of the above discussion, we find that the circumstance of last seen together was not established by the prosecution and it was not at all established that the appellant had taken the deceased on his motorcycle on the fateful day. 18. So far as circumstance of discovery of the dead body at the instance of the appellant is concerned, 2 witnesses, namely, Milan Ekka (PW-21) and Sanjay Das (PW-27) have been examined by the prosecution. Millan Ekka (PW-21) deposed that on 17-8-2005, he had gone to the police station. 18. So far as circumstance of discovery of the dead body at the instance of the appellant is concerned, 2 witnesses, namely, Milan Ekka (PW-21) and Sanjay Das (PW-27) have been examined by the prosecution. Millan Ekka (PW-21) deposed that on 17-8-2005, he had gone to the police station. The appellant was also present there. The police had not interrogated the appellant before him. Thereafter, the police took the appellant along with the other persons on a jeep. Then, they went in the jeep to a place between Villages Bakhtara and Piroda. It was an open field. They were taken by the appellant who showed them the dead body of the deceased. There the appellant was beaten by danda by the police persons. It is after all these, the appellant told them as to how the incident had taken place and then the discovery statement (Ex. P-11) was prepared by the police officer on which he also signed at place A to A. 19. Sanjay Das (PW-27), the other witness of the memorandum statement, deposed that the appellant had told about the girl in the police station. He accompanied with the police to the place where the dead body was lying. The dead body was seen by many villagers. Then, the appellant told the police as to how the incident took place and police prepared memo (Ex. -11) which bears his signature at place D to D. 20. On appreciation of evidence of above 2 witnesses of the discovery statement (Ex. P-11), we find that firstly the dead body was found by the police and thereafter the discovery statement (Ex. P-11) under Section 27 of the Evidence Act was recorded. According to the contents of the discovery statement (Ex. P-11), it was recorded in police station. The Investigating Officer has also told that it was recorded in the police station. But, the witnesses are not telling like that. If, in fact, the discovery statement (Ex. P-11) was recorded in the police station, the witnesses would have told that such a discovery statement was made by the appellant in the police station on which they had put their signatures and thereafter they accompanied with the police to the place where the dead body was found. This shows that the discovery of the dead body was not the consequence of the discovery statement (Ex. P-11) made by the appellant. This shows that the discovery of the dead body was not the consequence of the discovery statement (Ex. P-11) made by the appellant. On the contrary, as stated by the witnesses, the discovery statement was prepared after the dead body was discovered. 21. We further note that it is not a case that the dead body was either buried or it was in hidden condition so that nobody could notice it. According to the seizure panchnama (Ex. P-12), the dead body was lying in an open field and only the portion of the skull was inside the mud and rest portion of the body was visible. The incident took place on 15-8-2005 and the dead body was recovered on 17-8-2005. 22. On appreciation of the entire evidence regarding discovery and seizure of the dead body, we find that it was not a case in which the dead body of the deceased was recovered at the discovery statement made by the appellant. 23. So far as circumstance of human spermatozoa found in the slides prepared from the vaginal swab of the deceased is concerned, that itself would not be incriminating circumstance against the appellant because it was not established by the prosecution by DNA Test or by some other test of comparison that the said human spermatozoa were matching with the human spermatozoa of the appellant. 24. In a case based on circumstantial evidence, the circumstances must be full established. The circumstances so estsblished must be of conclusive nature and tendency. The circumstances should not be capable of being explained and the chain of evidence must be complete so as not to leave any doubt to hold that it was none else than the accused who was the author of the crime. In the instant case, the above circumstances were not fully established by the prosecution. They were not of conclusive nature and tendency. The circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. 25. For the foregoing reasons, we are unable to convict the appellant on the above set of circumstantial evidence. We are of the view that the appeal filed by the appellant deserves to be allowed. 26. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant are set aside. The appellant is acquitted of the charges framed against him. We are of the view that the appeal filed by the appellant deserves to be allowed. 26. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant are set aside. The appellant is acquitted of the charges framed against him. It is stated that he is in jail since 18-8-2005. He be released forthwith, if not required in any other case. Appeal allowed.