Judgment: S.K. Seth, J. 1. This death reference and connected appeal arise out of the judgment of conviction passed by the Additional Sessions Judge, Indore holding respondents guilty of the charges levelled against them in the trial. Following facts appear to be undisputed at this stage. The deceased, female child of about 3 to 4 years of age was sexually abused beyond words, and her dead body was found lying in a Nala near Shrinagar and Malviya Nagar Colonies of Indore City on the morning of 25th June, 2012. This child went missing from her house in MIG Colony, Indore since the 8.30 p.m. on 24-6-2012. Upon discovery of the dead body, Exh. P-6, Merg Intimation was recorded. Police prepared the site map (Exh. P-21), and Panchnama (Exh. P-17), and the corpse was sent to M.Y. Hospital for autopsy. Exh. P-5 is the short autopsy report dated 25-6-2012, which reads as under:-- "Opinion: -- Death was due to asphyxia as a result of aspiration of muddy fluid in air passage. -- Evidence of head injury present caused by hard and blunt object, sufficient to cause death in ordinary course of nature. Looking to circumstances and finding possibility of aspiration in terminal stage of death could not be ruled out. -- Death was homicidal in nature. -- Evidence of sexual assault per vaginum present. -- Time since death was 24 hrs. since post-mortem examination. -- Clothing preserved One vaginal swab and two vaginal smear slides for histological examination and one vaginal smear slide for DNA examination. -- Uterus with adnexa and fornices preserved for further investigation if required. -- Right femur bone preserved for diatom test, two bottle viscera preserved in saturated common salt for chemical analysis. -- Scalp hairs preserved as desired. All sealed and handed over to PC concerned along with seal sample namuna." 2. It is also undisputed that the accused persons are unrelated, and staying in different colonies at Indore; Accused Babu @ Ketan is an auto rickshaw driver while the remaining two accused Jitendra and Sunny are labourers. 3. -- Scalp hairs preserved as desired. All sealed and handed over to PC concerned along with seal sample namuna." 2. It is also undisputed that the accused persons are unrelated, and staying in different colonies at Indore; Accused Babu @ Ketan is an auto rickshaw driver while the remaining two accused Jitendra and Sunny are labourers. 3. Prosecution case in brief is as under:--On 24-6-2012 at about 8.30 p.m., the victim aged about 4 years had come out of her house in MIG Colony, Indore to see a Barat (Marriage Procession); and she did not return back to the house; this led her father Arjun (P.W. 4) to get in touch on phone his cousin Ajay (P.W. 9); and they waited till morning thinking that the child had slept somewhere in the near neighbourhood; next day brought the bad news about a dead body of a female child being found in a Nala near the Shrinagar Colony already mentioned. On reaching the spot, body was identified by Ajay (P.W. 9) as that of the deceased in question; and thereafter, investigation was launched as mentioned in the admitted facts. 4. During investigation, the Police arrested the three accused on suspicion of being involved in the horrendous crime. The basis for the prosecution case rests on two pillars namely, (1) the deceased was last seen alive with three accused on the night preceding finding of the dead body; and (2) circumstantial evidence. 5. There is no direct evidence to connect the appellants with the crime alleged to have been committed by them. Prosecution case is based on circumstantial evidence. It is well-settled that when dealing with the serious question of guilt of persons charged with crime there must be clear and unequivocal proof of the corpus delicti and the hypothesis of delinquency should be consistent with all the facts proved. It is also well-settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests--(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a complete chain so there is no escape from the conclusion that the crime was committed by the accused and none else. In Brijlal Prasad Sinha Vs. In Brijlal Prasad Sinha Vs. State of Bihar, (1998) 4 SCALE 25 (SC), Pattanaik, J., speaking for the Bench held as under:-- "In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decisions of this Court that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the Court records conviction on the basis of circumstantial evidence it must satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused." 6. It is equally well-settled that where the entire prosecution case hinges on circumstantial evidence, the Court should adopt cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence points irresistibly to the guilt of the accused, it would not be sound and safe to base the conviction of an accused person. Keeping this settled position in mind, we have examined the prosecution evidence adduced in the case in hand. It is also noteworthy to remember that in a case involving capital punishment, while deciding the death reference we have done fresh assessment of evidence so as to reach our conclusions as laid down in Deepak Rai Vs. State of Bihar, (2013) 10 SCC 421 . 7. We take the first point first for consideration. If this ground is established it would be reasonable to expect some explanation from the accused persons to deflect the suspicion against them, and in the event of their failure to give some explanation or any explanation adverse inference could be drawn against them. 8. 7. We take the first point first for consideration. If this ground is established it would be reasonable to expect some explanation from the accused persons to deflect the suspicion against them, and in the event of their failure to give some explanation or any explanation adverse inference could be drawn against them. 8. The only witness examined by the prosecution on this point is a chance witness viz., Ankit (P.W. 1). No doubt conviction could be based on the sole testimony of a single witness but prudence requires seeking support to such evidence more specially in a case involving death sentence. Here, it may be mentioned that the prosecution instead of trying to bolster evidence of Ankit has given up two important witnesses to the last seen incident and they are Vinay @ Viny pillion rider of the motorcycle driven by the Ankit and Maniram as the order sheets of the Trial Court clearly show. Presence of Maniram is spoken about Investigating Officer Y.R. Yadav (P.W. 16). 9. Ankit (P.W. 1) was cross-examined at length by each of three accused and from his cross-examination certain facts emerged casting doubt on his veracity. They are--(1) his not remembering the owner of the house for whose opening ceremony he was returning from at the time of incident; (2) he states that the day after the incident on seeing picture of the dead body on the TV he along with Vinay went to M.Y. Hospital in the afternoon and saw the child lying as corpse, near the mortuary; and he confirmed this fact with Police Constable on duty who instead of recording information asked the witness to report the matter in the concerned Police Station. Surprisingly, there is no confirmation of this important version in the examination of the I.O. on the point. This important omission tends to cast doubt on the veracity of the witness Ankit. 10. For these reasons, it seems to us that it would be highly imprudent to place reliance on the sole testimony of Ankit and to sentence the accused persons to death on that basis. So, the first pillar of the prosecution story fails. 11. We now come to the second pillar of circumstantial evidence. It would be well to keep in mind certain settled principles touching appreciation of such evidence. So, the first pillar of the prosecution story fails. 11. We now come to the second pillar of circumstantial evidence. It would be well to keep in mind certain settled principles touching appreciation of such evidence. The circumstantial evidence must forge a complete chain of evidence leading to the one and only conclusion of the guilt of the accused and incompatibility with the innocence of the accused. Suspicion however strong, could never take the place of ground for conviction in a criminal case. 12. The first point of the prosecution in this behalf is the statements under Section 27 of the Evidence Act by each of the accused. Accused Sunny in his statement under said Section 27, makes no statement whatsoever of "discovery" of any implicating article, and hence this Memo has to be rejected out of hand. The same criticism applies to the Memo (Exh. P-25) of accused Babu. 13. As regards the memo under Section 27 of the Evidence Act by accused Jitendra (Exh. P-23), we regretfully note that the Trial Court has not marked the admissible portions in that Memo. We however, supply the omission and mark "A to A" and "B to B" which read as under:-- 14. Pipe seized from the Auto Rickshaw of the accused in Thana premises turns out to be a steel pipe but however this seizure has no value since the forensic report (Exh. P-62) shows that stains on this Art. Q-1 could not be determined as being disintegrated. Hence this exercise was in futility. 15. Next circumstance relied on by the prosecution is the identification of the three accused by Ankit (P.W. 1) in test Ld. Parade held by Tehsildar Bihari Singh (P.W. 2). The documents being Exhs. P-1 to P-3. For the reasons already stated testimony of Ankit being of doubtful value we would not attach any importance to this identification. 16. Next it has to be noted that Ankit (P.W. 1) has deposed about the remembering the registration number of the auto rickshaw MP 09 TA 2232 just by seeing the number at the spot, a version difficult to accept. That the auto bore the word "Dhan Laxmi" finds admission by the accused Babu but this by itself does not further the prosecution case. 17. Next point is touching documents pro-note and cheque (Articles G and H) respectively. That the auto bore the word "Dhan Laxmi" finds admission by the accused Babu but this by itself does not further the prosecution case. 17. Next point is touching documents pro-note and cheque (Articles G and H) respectively. These documents were seized from the spot namely the Nala as per seizure Memo (Exh. P-18) proved by attesting witness Ajay (P.W. 9) uncle of the deceased and by I.O. Ashwani Chaturvedi (P.W. 15). The accused Babu in examination under Section313 of the Cr. PC has stated in reply to question 125 that these documents were in fact seized from his auto. It however, seems to us that the prosecution has established seizure of the documents in question from the spot. The accused Babu, as already stated, admits the documents in question but denies seizure from the spot. Hence there was no occasion for the prosecution to prove the authenticity of the documents in question. If the documents were seized from the post this raises very serious presumptions about the presence of at least accused Babu on the spot. To this extent, Exh. P-18 and the documents mentioned therein lead at least to the conclusion of presence of accused Babu on the spot. 18. But this suspicion however, grave, cannot by itself lead to the conviction of accused Babu much less that of other two accused. 19. We now come to the DNA tests involved in the case. The report (Exh. P-59) from the DNA Finger Printing of the Forensic Laboratory, Sagar shows that on 2-7-2012 per Constable Prem Narayan, five sealed packets were received from the Police Station, MIG, Indore marked A to E. The report reads as under:-- 20. The conclusions based on analysis are detailed read as under:-- 21. Now the report ibid leads to definite and inescapable conclusion that the three accused persons and they alone were the perpetrators of the shocking and horrible crime we are dealing with. As held by the Supreme Court the burden of proving that the DNA Report was vitiated for any reason was on the accused. See: Sandeep Vs. State of U.P., (2012) 6 SCC 107 . In our opinion, none of the accused has advanced any cogent reason for discarding or rejecting this report. Various arguments advanced to attack the DNA report do not cut any ice. See: Sandeep Vs. State of U.P., (2012) 6 SCC 107 . In our opinion, none of the accused has advanced any cogent reason for discarding or rejecting this report. Various arguments advanced to attack the DNA report do not cut any ice. The arguments were highly technical and specious like no proof of the proper sealing of sample, samples being the same etc. Hence, we would place reliance on the DNA Report (Exh. P-59). 22. From the above discussion, it is clear that the prosecution has made out two very important circumstances against the accused persons viz., (1) the DNA report (Exh. P-59) and the seizure of documents from the spot per seizure Memo (Exh. P-18). These two circumstances by themselves in our opinion build a chain of circumstances leading to the one and only conclusion of the involvement of all the three accused persons before us. The circumstances thus established are wholly in consistent with innocence of any of the accused. 23. However, we would now like to mention that in order to escape conviction, accused persons have examined as many as 9 defense witnesses. A brief reference to the testimony of these witnesses. 24. Sukhdeo (D.W. 1) the grandfather of accused Sunny @ Devendra states that on 24th June from night to morning the accused was with him in the house of Nehru Nagar, Indore. This witness is a partisan witness and hence his testimony is open to serious misgivings. Secondly, he has not stated the time of the night since when the accused Sunny was with him in the house. Suresh (D.W. 2) father of accused Sunny has stated that he had made a written complaint (Exh. D-4) about police using 3rd degree methods against his son. Maya (D.W. 3) Masi (Mother's sister) of the accused Babu has this to say: On 12th (month not mentioned) they had gone for some marriage on 24th (month not mentioned) among persons with her, Babu was one and they were together upto 10 o'clock. Manda (D.W. 4) is the mother of accused Babu also speaks in the same vein as Maya (D.W. 3). Evidence of Pawan (D.W. 5), an auto rickshaw driver does not lead us anywhere. Kamla (D.W. 6) is the landlady of accused Jitendra and she speaks about the good character of this accused. Her evidence is also of no merit or consequence. Evidence of Pawan (D.W. 5), an auto rickshaw driver does not lead us anywhere. Kamla (D.W. 6) is the landlady of accused Jitendra and she speaks about the good character of this accused. Her evidence is also of no merit or consequence. Radha Bai (P.W. 7) mother of accused Jitendra says that on the date of incident her son was with her all the time. Versha (D.W. 8) elder sister of accused Babu also speaks in the same vein as D.W. 7. The same could be said about the last defense witness (D.W. 9), who is Masi of accused Babu. All these witnesses can safely be styled as partisan witness and not worthy of credit. Hence, we would ignore the defense testimony trying to prove alibi. 25. From the above discussion, it would be clear that the prosecution has brought out two strong circumstances against the accused persons which, as already mentioned above, lead to the inevitable conclusion of guilt of the accused Nos. 1 to 3. 26. The next question is as regards the complicity of the accused persons in the death of the said infant. The autopsy report already adverted to prove her death to be homicidal. Now the circumstantial evidence already discussed, and the fact that the dead body was found next morning in a Nala, from where documents were found implicating accused Babu vide seizure memo (Exh. P-18), lead to the one and only conclusion that the accused persons in their anxiety to hide their and heinous crime tried to suppress incriminating evidence, dumped the body after silencing the victim. We, therefore, confirm this finding. 27. This brings us to the question of what sentence should be passed against the three accused persons? We have given very serious and anxious thought to this matter. On one side, there are the rights of accused to life and on the other the rights of women and maidens and infants in society to lead normal healthy lives. On balance we find that the accused persons by their extremely depraved and demonic acts against an infant of three or four years, have forfeited the right to be treated softly or lightly. The circumstances already discussed, cry for the heaviest sentence against the accused. On balance we find that the accused persons by their extremely depraved and demonic acts against an infant of three or four years, have forfeited the right to be treated softly or lightly. The circumstances already discussed, cry for the heaviest sentence against the accused. So long as the death sentence remains on the statute book, it would, in our opinion, be a travesty of justice to award the lesser sentence of life to the accused. Hence we would confirm the death sentence awarded to each of the accused, and resultantly dismissed the appeals against conviction and sentence passed against them by the Trial Court. Let a copy of this judgment be retained in the file of connected Cr. Reference. Office is directed to send a copy of this judgment immediately to the Trial Court for taking appropriate action in accordance with law. Ordered accordingly.