JUDGMENT 1. 1. Appellant viz., Sanjay @ Taldiya S/o. Gokal Ram has preferred instant criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 to assail judgment dated 30.09.2004 rendered by the Additional Sessions Judge, Khetri, whereby he was held guilty for offences punishable under Sections 302 and 377 of Indian Penal Code. 2. Having pronounced appellant guilty, vide a separate order of even date, the trial Court sentenced him as under:- For commission of offence under Section 302 I.P.C., he was sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo six months simple imprisonment. For commission of offence under Section 377 I.P.C., he was sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo six months simple imprisonment. 3. It is a case of circumstantial evidence, as no eye witness has been examined by the prosecution. 4. Facts, in nut-shell, of the prosecution case are that Srichand [PW-1] on 26.05.2000 at about 05:30 P.M. presented a written complaint [Exhibit-P/1] before Sub Inspector, Sajjan Singh [PW-12], Incharge Police Station, Khetri. 5. On the basis of above said written-report [Exhibit-P/1], a formal F.I.R. [Exhibit-P/2] was registered at said Police Station. 6. In his written complaint, Srichand [PW-1] stated that Satyaveer is his nephew, being son of his brother Nihala Ram. On 25.05.2000 at about 05:30 P.M. he was seen by him in the company of Naresh s/o. Krishan Kumar, Bulla s/o. Shyokaran, Bhaida s/o. Girdhari, Rajendra s/o. Subhash, Shersingh s/o. Matadeen, Dholya s/o. Vidhyadhar, Shaitan s/o. Umrav. The said boys were passing through from Goriror bus stand to Dudhwa. Srichand [PW-1] had seen them near Dharamshala. He called Satyaveer and told him to go back to the house, upon which Naresh s/o. Krishan Kumar and Bhaida s/o. Girdhari replied that he will come later-on. Thereafter, Satyaveer had not returned to the house till 08:30 P.M. due to which family become worried. Complainant - Srichand [PW-1] along with his brother Nihala Ram and Karan Singh searched for Satyaveer in the Village. They also asked those boys regarding whereabouts of Satyaveer and they replied that he was with them earlier, but later went away and he be searched at some deserted place. Thereafter, witnesses [family members] started searching for Satyaveer in the fields. Complainant - Srichand [PW-1] along with his brother Nihala Ram and Karan Singh searched for Satyaveer in the Village. They also asked those boys regarding whereabouts of Satyaveer and they replied that he was with them earlier, but later went away and he be searched at some deserted place. Thereafter, witnesses [family members] started searching for Satyaveer in the fields. He was not found till 12:00 in the night. In the morning at about 06:00 A.M. while searching, they reached near the well of one Bisarka at that time Karan [son of complainant] and brother Nihala Ram [father of deceased] and Gulab s/o. Ramji Lal found Satyaveer lying dead in a well. It was stated in the complaint that Satyaveer was killed persons named by him in the F.I.R. and thereafter, they had thrown his body in the well. 7. It is pertinent to note here that in First Information Report, appellant has not been named by Srichand [PW-1]. Above said First Information Report was investigated and the report to this effect under Section 173 Cr.P.C. was submitted. The said report was committed to the Court of Sessions and was entrusted for trial to the Additional Sessions Judge, Khetri. 8. Mr. Vinay Pal Yadav, the learned counsel appearing for the appellant, has informed us that two of the co-accused of appellant, namely Bulla @ Narendra s/o. Shyokaran and Dholya @ Pradeep s/o. Vidhyadhar were also found as accused of the alleged offence and they being delinquent juvenile in conflict with law were sent for trial before the concerned Juvenile Justice Board and they have been acquitted after trial. Present appellant was charged for commission of offences punishable under Sections 302 and 377 I.P.C. He pleaded not guilty and claimed trial. 9. Prosecution commenced its evidence. 10. Srichand, first informant appeared as PW-1 in the Court. He stated that on 25.05.2000 at about 05:30 P.M. from Goriror bus stand he was going to his house and near 'dharamshala' he found Satyaveer, aged 13-14 years, along with Naresh s/o. Krishan Kumar, Bulla @ Narendra s/o. Shyokaran, Dholya @ Pradeep s/o. Vidhyadhar, Rajendra s/o. Subhash, Bhaida @ Rakesh s/o. Girdhari, Shersingh @ Matadeen, Shaitan @ Laxminarayan s/o. Umrav, they all belong to the "Jogi" Community. He further stated that he called Satyaveer and asked as to where he is going with above said boys, then Bhaida @ Rakesh and Naresh replied that you go we are coming then they went ahead and he came to his house. Since in the evening till 08:30 P.M. deceased had not returned, they had carried extensive search, details of which are not required to be given at this juncture, rather they had found his dead-body in the well. Panchnama of the dead-body was made and Inquest proceedings were carried and same were attested. 11. Since the appellant has not been named by this witness, we need not notice cross-examination as nothing hinges upon that. 12. PW-2 Ranveer Singh stated that after Satyaveer had died, the Police had come in the Village, got dead-body recovered from the well and prepared site-plan PW-3. He had attested the same and also attested the inquest proceedings. This witness further stated that pant of deceased Satyaver and one pair of chappal [slipper] were recovered from present appellant - Sanjay @ Taldiya. He proved recovery memo [Exhibit-P/5]. He also proved site-plan of the spot from where pant and pair of chappal of deceased was recovered. This witness further stated that present appellant was arrested in his presence vide arrest memo [Exhibit P/7] and he had duly attested the same. He further stated that the Police had recovered under-wear of the appellant, which he had handed over to the Police. 13. It is to be noted here that the State Forensic Science Laboratory, Rajasthan, Jaipur vide its report [Exhibit P/38] had found human semen on the underwear of the accused - appellant - Sanjay @ Taldiya. 14. PW-3 Rajuram stated that on 25.05.2000 he was at brickkiln in his field near well and he had seen Rajendra s/o. Subhash, Rakesh s/o. Girdhari, Shersingh s/o. Matadin, Shaitan s/o. Umrav, Naresh s/o. Krishan Kumar, Dholya, Bullia and Sanjay Dhanak s/o. Gokulram at about 07:30 P.M. 15. Suffice it to say, this witness has seen all accused together after the time of occurrence. This witness has been examined to say that present appellant was along with other persons who were earlier seen by Srichand [PW-1] with deceased. He further stated that on being asked, they told that they are going to ease themselves. Suffice it to say, this witness has seen all accused together after the time of occurrence. This witness has been examined to say that present appellant was along with other persons who were earlier seen by Srichand [PW-1] with deceased. He further stated that on being asked, they told that they are going to ease themselves. He stated that on 26.05.2000 at about 08:30 A.M., it was heard in the Village that Satyaveer had been murdered. In his presence, dead-body was recovered and he had seen the same. In cross-examination, this witness stated that he had seen Satyaveer along with accused. 16. PW-4 Chhote Lal stated that on 26.05.2000 Police came in the Village and made Panchnama of dead-body [Exhibit P/4]. 17. PW-5 Gulab Singh had stated that on 26.05.2000 he had gone with the relatives of the deceased for searching his whereabouts and in his presence, Police had recovered dead-body from the well. This witness was declared hostile as he has not supported the prosecution, qua the evidence of last seen, which was recorded by the Police in his statement recorded under Section 161 Cr.P.C. [Exhibit-P/9]. 18. PW-6 Nihal Singh, father of deceased has deposed regarding information received from his brother Satyaveer; and the search carried to find his son and subsequent finding of dead body from the well and information given to the Police. 19. Karan Singh appeared as PW-7, being son of Srichand [PW-1] and stated that on 25.05.2000 in the evening at about 06:00 P.M. when he was going to ease himself, he had seen Raju s/o. Shyochand, Satyaveer in company of Rajendra, Shersingh, Shaitan Singh, Bhaida, Bullia. On being asked Satyaveer informed that he is going to play with his friends. Later-on Satyaveer had not returned. They searched for him and found his dead-body in the well. 20. PW-8 Naresh Kumar, aged about 16 years was examined to prove the last seen evidence, but he has turned hostile and has not supported the prosecution case, rather this witness stated that he was beaten and compelled by the Police to say that the offence has been committed by Dholya and Sanjay etc. 21. PW-9 Hawa Singh in no way had advanced the case of prosecution. PW-10 Sukhveer had attested Exhibit P/7, arrest memo of the appellant. PW-11 Islaam Khan had photographed the spot and had proved photographs & negative. 21. PW-9 Hawa Singh in no way had advanced the case of prosecution. PW-10 Sukhveer had attested Exhibit P/7, arrest memo of the appellant. PW-11 Islaam Khan had photographed the spot and had proved photographs & negative. PW-12 Sajjan Singh was posted as Sub- Inspector/In-charge Police Station, Khetri. He proved receipt of written complaint, registration of F.I.R. and various facets of investigation. PW-13 Netram was posted as In-charge of Malkhana. He was examined to prove link evidence. PW-14 Sindharam stated that accused Sanjay came with the Police and from the cremation ground got recovered one pant of coca-cola colour and pair of chappal. He proved recovery memo [Exhibit P/5] and site-plan of the spot from where clothes and chappal were recovered as Exhibit P/6. 22. It is to be noted here that accused, during interrogation had made disclosure statement [Exhibit P/31] that he had concealed pant and chappal belonging to deceased in a cremation ground and he can get the same recovered. 23. This witness, in cross-examination has stated that he joined inquest proceedings in his capacity as Sarpanch of the Village. 24. Laxmanprasad Sharma PW-15 stated that he was posted as Constable at Police Station, Khetri. He had taken packets from In-charge Malkhana, which includes clothes and deposited the same in the State Forensic Science Laboratory, Rajasthan, Jaipur. 25. Amir Singh, PW-16 stated that he was posted as Station House Officer/A.S.I. Police Station, Khetri and on receipt of written complaint [Exhibit-P/1], he had registered formal F.I.R. [Exhibit P/2]. 26. PW-17 Dr. Vinay Kumar stated that he was Member of the Medical Board and had conducted autopsy on the dead-body of the deceased - Satyaveer Singh. He found various injuries, which included abrasions on the body of the deceased. He further found an injury on the anus of the deceased. 27. This witness opined that the cause of death was asphyxia and shock. This witness further stated that no semen was found on the swab taken from the anal of the deceased. 28. PW-18 Balmukund stated that on 26.05.2000 he was posted as Additional Superintendent of Police, Jhunjhunu. He had supervised the investigation carried by Sub-Inspector Sajjan Singh and Aas Mohd. 29. PW-19 Banwari Lal stated that he was posted as Constable at Police Station, Khetri. He had also carried packets to the Forensic Science Laboratory. 30. 28. PW-18 Balmukund stated that on 26.05.2000 he was posted as Additional Superintendent of Police, Jhunjhunu. He had supervised the investigation carried by Sub-Inspector Sajjan Singh and Aas Mohd. 29. PW-19 Banwari Lal stated that he was posted as Constable at Police Station, Khetri. He had also carried packets to the Forensic Science Laboratory. 30. PW-20 Balveer stated that in his field, well was situated from where dead-body was recovered, but he had not seen anything. Pertaining to the occurrence, this witness was declared hostile as he had not supported the prosecution case. PW-21 Ramesh Kumar Sharma stated that on 30.04.2000 he was posted as Judicial Magistrate and in his Court, statement of Naresh was recorded under Section 164 Cr.P.C. 31. Thereafter, prosecution closed its evidence and the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 and all incriminating evidence were put to him, he denied the same and pleaded innocence. 32. In defence, accused has examined Ramphal as DW-1. 33. This witness was examined to prove alibi on the part of present appellant. He stated that the appellant was working with him at the brickkiln and on the day of occurrence, he had worked till 07:30 P.M. 34. From the evidence noted herein above, it is clear that PW-3 Rajuram had seen appellant along with Rajendra s/o. Subhash, Rakesh s/o. Girdhari, Shersingh s/o. Mataddin, Shaitan s/o. Umrav, Naresh s/o. Krishan Kumar, Dholya and Bullya and Sanjay Dhanak s/o. Gokulram but not with deceased. 35. It is to be noted here that as per PW-1 Srichand at 05:30 P.M. on the same day, deceased Satyaveer was present with above persons named by PW-3 Rajuram with whom appellant was seen at 07:30 P.M. by Rajuram PW-3 probably after occurrence. 36. Thus, so far as evidence of last seen of the accused with the deceased is concerned, no evidence to this effect has been led by the prosecution. 37. Srichand, PW-1 & Karan Singh, PW-7 have not stated that the deceased was last seen with the accused and have not named present appellant. Naresh, PW-8 has also turned hostile and has not supported prosecution case, rather he had stated that he was compelled by the Police to name the appellant. 38. 37. Srichand, PW-1 & Karan Singh, PW-7 have not stated that the deceased was last seen with the accused and have not named present appellant. Naresh, PW-8 has also turned hostile and has not supported prosecution case, rather he had stated that he was compelled by the Police to name the appellant. 38. PW-3 Rajuram during cross-examination stated that at 07:30 P.M. he had seen present appellant along with deceased Satyaveer, we will ignore this stray line in the cross-examination considering that appellant has not been named, qua the last seen by PW-1 Srichand, PW-5 Gulab Singh, PW-7 Karan Singh, PW-8 Naresh Kumar and PW-20 Balveer and same was not the case of PW-3 Raju Ram in examination-in-chief. 39. Once we ignore the evidence of last seen, we are left with the recovery of pant and chappal of the deceased at the instance of present appellant along with recovery of underwear of accused-appellant containing presence of human semen. As per prosecution, appellant had made disclosure statement, Exhibit-P/31 and in pursuance thereof he got recovered pant and pair of chappal of the deceased from the cremation ground of the Village. Furthermore, on 29.05.2000 at 04:30 P.M. vide Exhibit P/33 appellant handed over underwear worn by him which as per report Exhibit P/8 contain human semen. 40. It is to be noted here that swab from the anus of deceased was sent to the State Forensic Science Laboratory, Rajasthan, Jaipur and vide report Exhibit P/36 no semen was found thereupon. 41. Thus, we cannot assume that for a period of four- days, appellant had not changed underwear and same was not washed. From the recovery of underwear containing seman, after four-days of occurrence, it cannot be said that the semen on the underwear was one which was due to alleged commission of unnatural offence committed by the appellant. Even otherwise, recovery of pant and pair of chappal of the deceased and human semen on the underwear of the accused are not sufficient to complete the chain of circumstances to come to a conclusion that it is the appellant only who had committed unnatural offence falling within the ambit of Section 377 I.P.C. and the offence of murder. 42. Even otherwise, recovery of pant and pair of chappal of the deceased and human semen on the underwear of the accused are not sufficient to complete the chain of circumstances to come to a conclusion that it is the appellant only who had committed unnatural offence falling within the ambit of Section 377 I.P.C. and the offence of murder. 42. We have found many loopholes in the chain of circumstances and, thus, it cannot be said that it is the appellant alone who had committed alleged offence, hence, taking totality of circumstances, we shall extend the benefit of doubt to the appellant. 43. As a result of above, we accept this appeal, set aside the conviction & sentence awarded upon the appellant by extending benefit of doubt and acquit him of the charges. *******