JUDGMENT G.R. UDHWANI, J. 1. Both these appeals, being CR.A No.278 of 2011 and CR.A No.685 of 2011 have been preferred respectively by the State and convict for enhancement of the sentence and for a challenge to the judgment and order of conviction and sentence against the convictParshottambhai Bhikhabhai Solanki. The convict was tried in Sessions Case No.87 of 2008 by Fast Track Court, Amreli camp at Rajula Presided over by learned Additional Sessions Judge, Amreli and was found guilty and awarded sentence of imprisonment of life and fine of Rs.5,000/and, in default sentence of SI of two months for the offence punishable under Section 302 of the Indian Penal Code (for short IPC). Rigorous imprisonment of sentence of 10 years and a fine of Rs.5,000/, in default additional sentence of two months SI on his being found guilty for the offence punishable under Section 376(2) of the IPC was also imposed upon the convict. The convict was also found guilty of the offence punishable under Section 201 of the IPC and sentenced to one year RI and fine of Rs.5,000/, in default sentence of 15 days SI. The judgment and order was pronounced on 23/11/2010. 2. Briefly stated, prosecution case, as revealed in the FIR (Exhibit22) was that the complainant is a father of one Laxmi (victimdeceased) aged 07 years and one Vijay who was then aged 04 years. They all were residents of Village–Mitiyana of Jafrabad Taluka. The FIR was registered on 12/07/2008 at about 14:45 pm in respect of offence committed on 11/07/2008 between noon and 5:00 p.m. The informant came out with a case that on the date of incident, he had brought his children Laxmi and Vijay from Village Mitiyana to his parents' place and left them there and went to Una wherefrom he returned at about 3:00 O’clock to Mitiyana at his house, where he found Vijay, his son aged four years crying and on being inquired whereabouts of his daughter–Laxmi, Vijay informed him that Kharva Parshottam (convict) had taken Laxmi near the basin behind the bushes. The informant thereafter returned to his parents' place and inquired whereabouts of his daughter, whereupon he was told that she had gone home. That neither Laxmi nor Parshottam Kharva were seen. This persuaded the informant to search for Laxmi and he found her frock near the basin from the bushes. The informant thereafter returned to his parents' place and inquired whereabouts of his daughter, whereupon he was told that she had gone home. That neither Laxmi nor Parshottam Kharva were seen. This persuaded the informant to search for Laxmi and he found her frock near the basin from the bushes. Therefore, suspecting a foul play, the informant with the assistance of few villagers intensified the search for Laxmi during the night; but in vain. On the next morning at about 8:00 a.m., the informant found the blood stains in nails of babool tree and the deadbody of his daughter pressed under a heavy stone in the basin water. It floated on the water when stone was removed. He found bleeding head injury of the victim. She was naked and traces of blood were found on her private parts. Under the circumstances, the informant named the culprit in the FIR. Upon investigation, there being evidence against the convict, chargesheet was submitted and ultimately the case being triable by the Court of Sessions, was committed to it and convict having pleaded not guilty to the charge (Exhibit2) was tried, found guilty and punished as aforesaid. 3. Amongst the aforesaid witnesses, PW 2, Vinubhai Bijalbhai Bhalia is the informantfather of the victim; PW 5–Raiyaben is the aunt of the victim and PW 13 is the child witnessson of informant and brother of victim. There is no eyewitness to the incident and the case revolves around various circumstances emerging from oral as well as documentary evidence adduced by the prosecution during the trial. 4. Learned APP Ms.Calla, would rely upon the circumstances like homicidal death of the victim with injuries on her private parts, evidence of PW 2 deposing having learnt from his son PW 13 of the victim having been seen last with PW 13, incriminating material as noted in the Panchnama of the scene of offence, identification of the victim in the Court by PW 13, citing of the victim in nude by PW 5 near the scene of offence and discovery of the blood stains bearing group 'A' which was that of the victim, submitted that the guilt of the convict was proved beyond reasonable doubt and the chain of circumstances leaving no room for inference of innocence of the convict was established beyond reasonable doubt. In the submission of learned APP, the trial Court has applied its mind to each and every minute aspect of the matter and has reached to a legally sustainable conclusion requiring no interference by this Court in the appeal against conviction preferred by the convict. According to learned APP, this is a rarest of rare case where the convict aged 20 years easily overpowered the helpless victim aged only 07 years, after enticing her away to a lonely place and raping her and attempted to destroy the evidence by hiding the dead body under the weight of heavy stone in the basin. Learned APP while inviting the attention of this Court to Zahid Hussein & Ors., Vs. State of W.B. & Anr., [ (2001) 3 SCC 750 ]; Bantu Vs. State of Uttar Pradesh [ (2008) 11 SCC 113 ] and Mohd. Mannan Alias Abdul Mannan Vs. State of Bihar [ (2011) 5 SCC 317 ] would urge to award the death penalty to the convict accused by allowing the State appeal. 5. On the other hand, learned Counsel for the convict while relying upon State of Gujarat Vs. Ratansingh @ Chinubhai Anopsinh Chauhan [2014 (2) GLH 208] would contend that no chain of circumstances proving the guilt of the convict beyond reasonable doubt has been established. In his submission, evidence of PW 5 establishes a circumstance leading to the innocence of the convict; inasmuch as according to her version while the victim was away to the village side, the convict was not with the victim, but with PW 5 and thereafter was noticed at a place other than the scene of offence but not with the victim and that testimony of the three prime witnesses i.e. PW 2, PW 5 and PW 13 is inconsistent and full of contradictions and omissions and that PW 13, a child witness admits having been tutored to give evidence suitable to the prosecution. In his submission evidence of tutored child witness requires a corroboration from other evidence which is lacking in the present case. Learned Counsel would rely upon Bhagwan Singh & Ors., Vs. State of M.P. [ (2003) 3 SCC 21 ]. 5.2 Learned Counsel would contend that innocence of the convict can be inferred from his conduct of being member of the search party to find out victim right from 05:00 p.m., of the day of incident until the next day. Learned Counsel would rely upon Bhagwan Singh & Ors., Vs. State of M.P. [ (2003) 3 SCC 21 ]. 5.2 Learned Counsel would contend that innocence of the convict can be inferred from his conduct of being member of the search party to find out victim right from 05:00 p.m., of the day of incident until the next day. As to conduct of accused in such cases, learned Counsel would rely upon State of Gujarat Vs. Mohanbhai Raghubhai Patel & Anr., [1990 (2) GLH 120]. He would also contend that various omissions of PW 6, a Panch Witness for discoveries, showing that entire sealing process of articles discovered was done in the Police Station, discrepancy in the timings of the Panchnama and other infirmities, bely the discoveries. 5.3 Learned Counsel would also contend that it was illegal for the trial Court to rely upon and rest the conviction only on inculpatory circumstances and the alleged statements of the convict during the so called discoveries. Learned Counsel would thus urge to acquit the convict. 6. Before embarking upon the appreciation of evidence and rival submissions, we may briefly glance through the case law cited at the bar. 6.1 Zahid Hussein (supra) was not the case dealing with the death penalty, but only pronouncing the consideration that must be taken into account for premature release of the convict. It was held that conduct of the convict in jail and not the opinion of the society at large would decide whether the prisoner would be a danger to the locality or not, if prematurely released. That the age alone cannot be a factor while considering the potentiality of the prisoner in repeating the crime or being danger to the society after his premature release. 6.2 In Bantu (supra) , the victim Vaishali was an infant girl of five years. During the full moon night, the neighbour of the victim, induced her with an offer of a balloon to accompany him. Several persons were witnesses to her being going with the culprit. The culprit was also seen carrying the victim towards a pond and the victim was searched and in the dark night, with the help of torches the accused was found near the field of one Dharma inserting or thrusting a stem/stick of dhanicha in vagina of deceased after having pushed her to the ground. Accused was caught redhanded. The culprit was also seen carrying the victim towards a pond and the victim was searched and in the dark night, with the help of torches the accused was found near the field of one Dharma inserting or thrusting a stem/stick of dhanicha in vagina of deceased after having pushed her to the ground. Accused was caught redhanded. The victim was profusely bleeding and was ultimately pronounced dead by the Doctors. The medical examination showed 33 cm of the part of a stick admeasuring 57cm x .8 cm inside vagina of the victim. That depicted perversity of the culprit. The internal examination revealed that small and large intestine were perforated at places due to insertion of the stick. The stomach contained semi digested food of about 200ml. Free and clotted blood was present in the cavity. The mesenteric vessels in the abdomen were torn due to insertion of wooden stick. Uterus was small in size and was ruptured due to insertion of wooden stick into the vagina. The walls of cervix were lacerated. Slides of vaginal swab were prepared for examination. No traces of rape however were found. The murder was thus in a diabolic manner. Under the aforesaid circumstances, the Apex Court after referring to various authorities pronouncing the principles of imposition of death sentence, in the facts of the case, found as a rarest of rare case and death sentence was confirmed. In Mohd. Mannan Alias Abdul Mannan (Supra), the culprit was 43 years of age and thus held a position of trust which was misused in a calculated and preplanned manner to rape a girl aged seven years. The circumstances like the appellant working as a mason in the house of one of the witness, his sending the deceased to buy betel and his following her after few minutes to the betel shop, his being last with the deceased going together on a bicycle and his confession leading to the recovery of a dead body from a field led to the conviction of the culprit and the case was treated by the trial Court as falling in the rarest of rare category. The High Court confirmed the death sentence imposed by the trial Court on the ground of heinousness of the offence, age of the victim being 07 years, her being helpless, convict matured aged of about 4243 years, the cruel manner of dealing with her by the culprit as revealed in the medical evidence i.e. injuries on the face, nails and body of the child at the time of committing rape which was followed by murder and concealment of her body. The aforesaid facts justified the imposition of a death penalty by the Apex Court. 6.4 In Ratansingh @ Chinubhai Anopsinh Chauhan (supra) on facts in a case of murder and rape of the tiny girl of 07 years, the evidence was found short of completing a chain of circumstances connecting the culprit with the murder of the victim. 6.5 In Bhagwan Singh & Ors (supra) well settled principles of law for appreciating the child witness were reiterated. 6.6 In Mohanbhai Raghabhai Patel (supra) in a case of death by burning, the conduct of the accused throwing mattress on the burning woman coupled with the fact that in the earlier stages the deceased did not implicate the accused, were treated as circumstances doubting veracity of version of the prosecution. 7. Keeping in view the evidence on record, impugned judgment and order and the case law cited at the bar and the submissions made, we embark upon the exercise of reappreciation of evidence. 8. The most crucial circumstance connecting the convict with the crime pressed into service is his having been seen last with the victim immediately before the commission of the offence. The relevant evidence on this count is that of PW 2, PW 5 and PW 13. The common source of evidence for PW 2 and PW 5 is PW 13. As can be noticed from the testimony of PW 2 and PW 5, PW 13 has given different version to both the said witnesses. According to PW 2, PW 13 had a knowledge of victim being enticed away under the pretext of offering Singoda, to the scene of offence, by convict. However, this version of PW 2 does not get corroborated from the testimony of PW 5, who also testifies to have learnt from PW 13 that the victim had gone to village side. According to PW 2, PW 13 had a knowledge of victim being enticed away under the pretext of offering Singoda, to the scene of offence, by convict. However, this version of PW 2 does not get corroborated from the testimony of PW 5, who also testifies to have learnt from PW 13 that the victim had gone to village side. According to PW 5 while she was talking to Vijay PW 13, in the house of her fatherinlaw, the culprit had come there. Thus, at that point of time, the victim was not with him. Thereafter, she merely saw the convict in nude near the scene of offence, but not in the company of the victim. It is not clear from the evidence on record as to whether PW 13 had seen the convict with the victim before or after her going to the village side. As a matter of fact, PW 13 does not make any statement of he having seen the convict with the victim on the day of the offence in his testimony. Therefore, the testimony of PW 2, Pw 5 and PW 13 does not establish the factum of the convict having been last seen with the victim before the crime. 9. The next important aspect which heavily weighed with the learned trial Judge to find the incriminating circumstances against the convict is the discovery Panchnama of the scene of offence and trousers of the convict having stains of blood group 'A' of the victim, as distinguished from blood group 'O' of the victim. According to testimony of PW 6 Kalubhai, a willingness to discover garments worn by him on the date of offence was expressed by convict on 13/07/2008 in the Police Station, where he alongwith other Panch was called to be the Panch witness and that the Police party and Panchas were led by the accused to his sister's place and from the kitchen of that house a shirt and the pants as described in the Panchnama were discovered by the convict. The said witness deposes the convict having discovered the scene of offence alongwith other incriminating spots and material therein between 3:00 and 3:30 p.m. Preliminary part of the first panchnama regarding discovery of garments upto the stage when the convict had shown the willingness was drawn between 15:00 and 15:50 hours and the 2nd part under which the garments were actually discovered by the convict is said to have been completed at about 16:00 hours. Similarly, the preliminary part of the Panchnama where the convict is said to have expressed his desire to discover the scene of offence was drawn between 16:30 and 16:45 hours and the later part during which the convict is actually said to have discovered the scene of offence was drawn between 16:45 and 18:30 hours. 9.2 The collection and sealing of various incriminating articles discovered during the aforesaid process are also deposed to have been made. 9.3 In the aforesaid context of the facts of discoveries, the crossexamination of PW 6 is required to be appreciated. In the crossexamination, according to him, the entire sealing process was done in the Police Station and not at any other place and the occasion of discovery of trousers and shirts from a sister's place occurred at about 5:00 p.m. and not before 4:00 p.m. According to him, there was no occasion of his coming out of the Police Station with the convict for discovery before 4:00 p.m. and that there was no occasion of such discovery before the said time and that he had no occasion to sign the Panchnama before 4:00 p.m. and that entire sealing process took place after 6:00 p.m., and that it was in the Police Station that he dictated that the sealing process was done in his presence. That even the garments were accepted by him in the Police Station and not at any other place before that. According to him, he occupied a seat beside the writer in the Police Station while dictating the Panchnama of discovery of the garments. The witness also admits that he had no occasion to dictate anything between the period he left and came back to the Police Station; neither during such period he had an occasion to sign any document. According to him, he occupied a seat beside the writer in the Police Station while dictating the Panchnama of discovery of the garments. The witness also admits that he had no occasion to dictate anything between the period he left and came back to the Police Station; neither during such period he had an occasion to sign any document. Thus, the witness belies the drawl of Panchnama at the time prescribed in the Panchnama, as also drawing of the Panchnama at the places where the discoveries were allegedly effected, as also sealing process of the articles discovered at the places of discovery. Thus, a substantial doubt about the discovery of the garments of the accused and the place of incident exists and therefore, we are not inclined to rely upon such discoveries. 10. The trial Court appears to have fallen in serious error while treating the said discoveries as the confession of the convict in the face of well settled legal position that only noninculpatory part of the discovery made under Section 27 of the Indian Evidence Act can be relied upon and the confession to the Police, as also the confession while in custody of the Police by the accused is not admissible in evidence in view of Sections 25 and 26 of the Indian Evidence Act. To connect the convict with the offence, the learned trial Judge has heavily relied upon inculpatory part of the discoveries. Even the inculpatory statements allegedly made by the convict during such discoveries are heavily relied upon by the learned Judge under the misconception of the settled law. 11. In the above stated circumstances, there exists no evidence of citing of the convict last with the victim and his being at the scene of the offence at the time of occurrence and his having raped or murdered the victim. We feel that dedicated efforts were necessary in the serious case like this to bring the guilt of the culprit. 12. We have also noticed the conduct of the convict inconsistent with guilt, inasmuch as admittedly the convict accompanied the search party and remained with it between 05:00 p.m., when the search for the victim commenced until the next day. Normally, the guilty mind would not exhibit such a conduct. 12. We have also noticed the conduct of the convict inconsistent with guilt, inasmuch as admittedly the convict accompanied the search party and remained with it between 05:00 p.m., when the search for the victim commenced until the next day. Normally, the guilty mind would not exhibit such a conduct. There is nothing on record leading to the inference that such a conduct of convict was aimed at misguiding the search or destroying the evidence or for any other purpose, to benefit the convict. 13. In the result, Criminal Appeal No.685 of 2011 preferred by convictParshottambhai Bhikhabhai Solanki succeeds. The impugned judgment and order of conviction and sentence convicting the convict for the offences punishable under Sections 302, 376(2)(f) and 201 of the Indian Penal Code rendered in Sessions Case No.87 of 2008 by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court, Amreli is quashed and set aside. The convict is acquitted of all the charges levelled against him and is ordered to be set at liberty forthwith, if not required in any other case. However, appellantParshottambhai Bhikhabhai Solanki of Criminal Appeal No.685 of 2011 shall comply with Section 437-A of the Code of Criminal Procedure. 14. Criminal Appeal No.685 of 2011 preferred by the State of Gujarat for enhancement of sentence for the foregoing reasons fails and is dismissed.