JUDGMENT 1. - Convicted of offences under Sections 302, 376(2)(f) and 201 IPC by the Additional Sessions Judge (Fast Track) Behror, by judgment dated 22.7.2005, the appellant, Ashok Kumar, has approached this court. For the offence under Section 302 IPC, the appellant was sentenced to life imprisonment, imposed with a fine of Rs. 00/-, and directed to further undergo a simple imprisonment of six months. For offence under Section 376(2)(f) IPC, the appellant was also sentenced to life imprisonment, imposed with a fine of Rs. 00/-, and directed to further undergo six months of simple imprisonment in default thereof. For offence under Section 201 IPC, the appellant was sentenced to three years of rigorous imprisonment, imposed with a fine of Rs. 500/- and directed to further undergo a simple imprisonment of two months. All the sentences were directed to run concurrently. 2. Briefly, the case of the prosecution is that Anita (P.W.8) had come to visit her parental home. She had brought her four months old daughter with her. (The name of the daughter is being withheld in order to protect her identity as allegedly the child had been raped and killed by the appellant). It is further alleged that on the night of 5.6.2004, the family had watched T.V. Anita and her daughter, her grand-mother, Smt. Phoola Devi, and Ashok had slept out in the courtyard. Around 1:00 Oclock at night, Anita had given milk to her daughter. But when the family woke up at 5:00 AM on 1.6.2004, they found both the child and Ashok missing. Subsequently, Subhash Chand (P.W. ) was informed that the dead body of the child is lying in a field belonging to Ramesh Yadav. Therefore, at 6:00 AM he informed the police over the telephone. Consequently, the police reached at the place where the dead body of the child was discovered. At Ramesh Yadavs filed, Subhash submitted a written report (Ex.P.8) wherein he claimed that "in the night of 1.6.2004, around 1:00 Oclock, my niece had given milk to her daughter, four months old. Subsequently, some unknown persons have kidnapped the child and left her dead in the field of Ramesh. There is no visible injury on the body. I do not suspect anyone. I am submitting this report so the legal proceedings can be initiated. Subsequently, some unknown persons have kidnapped the child and left her dead in the field of Ramesh. There is no visible injury on the body. I do not suspect anyone. I am submitting this report so the legal proceedings can be initiated. On the basis of this report, a Mrig FIR (Ex.P.8), namely Mrig FIR No.11/2004 under Section 174 Cr.P.C was registered at 7:25 AM on 1.6.2004. 3. Subsequently, on 1.6.2004 at 1:15 PM, Anil Kumar (P.W.13) lodged a report with the SHO, Police Station Behror which when translated into English reads as under:- To, The SHO Sahab, Police Station Behror, Alwar. Sub.: For registration of a report. Sir, It is submitted that my uncle had informed the police this morning that someone had taken away my sisters daughter, aged four months, and had left her in Rameshs field. The police had gotten the post-mortem done. Now, we have come to know that the child was taken by Ashok Chamar. He tried to rape the child and because of internal injuries caused, he has killed the child and hiding this act from everyone, he has left the child in Rameshs field. I am reporting this so that legal action can be taken. Sd/- Anil Kumar Yadav. 4. On the basis of this written report (Ex.P.16), a formal FIR (Ex.P.17), namely FIR No.253/2004, was registered for offences under Sections 302, 376, 511, 201 IPC. The appellant was arrested on 1.6.2004 at 4:30 PM. After completing the investigation, the case was committed before the Additional Sessions Court, Behror, from where it was transferred to the court of Additional Sessions Judge (Fast Track), Behror. 5. In order to prove its case the prosecution examined seventeen witnesses, and submitted thirty documents. In turn, the defense did not examine any witness, but did submit a single document. After completion of the trial, the learned Judge convicted and sentenced the appellant, as aforementioned. Hence, this appeal before this court. 6. Before this court deals with the contentions of the learned counsel, it would be appropriate to first briefly consider the evidence produced by the prosecution. 7. Smt. Anita (P.W.8), the mother of the deceased, informs the court that "two years ago she was married at Narnol and her parental place is at Behror. About fifteen days prior to the date of incident, she had brought her daughter to her parental place. 7. Smt. Anita (P.W.8), the mother of the deceased, informs the court that "two years ago she was married at Narnol and her parental place is at Behror. About fifteen days prior to the date of incident, she had brought her daughter to her parental place. Her daughter was four years old. On 1.6.2004 around 11:00-11:30 at night, I, my grand-mother, Phoola, my daughter, and Ashok, the accused, were sleeping out in the courtyard. My sister-in-law, Suman, was sleeping inside a room. My younger brother, Sonu, was also sleeping inside a room. My brother, Anil, was not in the house. I slept with my daughter. When I woke up at 5:00 Oclock in the morning, I neither found my daughter, nor Ashok. We tried to look for my daughter. After one and a half hours, Ashok came back. He also looked for my daughter. Lots of people had gathered. Khushi Ram informed us that the child is lying about three to four fields away from our house. When they brought my daughter back home, I saw her. I noticed that there was an injury on her vagina. We suspect that the accused, present in the court, had picked up the child, taken her, and committed rape on her because in the morning both Ashok and my child were missing. When my daughter was with me, she was wearing a single frock." 8. In her cross-examination she states that "it is true that I had given milk to my daughter at 1:00 Oclock in the night. I woke up only at 5:00 Oclock in the morning. It is wrong to say that my grand-mother told me about the missing child. Instead, I myself had seen that my child was missing. The police had recorded my statement. In the police statement (Ex.D.1), the part where it says that my grand-mother woke me up, the part marked as A to B, is wrongly recorded. We were not watching any picture. We were merely watching the video of a marriage. A cooler was on, in the courtyard, where I, my grandmother and Ashok were sleeping. The courtyard where we were sleeping, from there, Ashoks room was ten to fifteen feet away. Ashok did not look after our fields, but he used to come only to sleep. We were merely watching the video of a marriage. A cooler was on, in the courtyard, where I, my grandmother and Ashok were sleeping. The courtyard where we were sleeping, from there, Ashoks room was ten to fifteen feet away. Ashok did not look after our fields, but he used to come only to sleep. It is wrong to say that I have an illicit affair with someone, and that Ashok has seen the illicit affair. Therefore, I had threatened him that in case you were to tell anyone about the illicit affair, I would falsely implicate you in a case. It is also wrong to say that because of an illicit affair, the child was born. Therefore, we have killed the child. It is equally wrong to say that my in-laws are dissatisfied with the little dowry that I had brought, and by the fact that I had given birth to a girl child. It is also wrong to say that the person with whom I have an illicit affair, I asked that person to kill my child and to throw her away." 9. Smt. Phoola Devi (P.W.6), the grand-mother of Smt. Anita and the great-grand-mother of the deceased child, and Smt. Suman (P.W.7), Anitas sister-in-law, and Anil Kumar (P.W.13), the complainant and Anitas brother, have corroborated Anitas testimony. Since they have given similar testimonies as Anitas, their testimonies are not being reproduced here. 10. Dr. Satyaveer Yadav (P.W.2), Dr. Suresh Yadav (P.W.3), Dr. (Smt.) Uttara (P.W.4) and Dr. Rajeev Kumar Gupta (P.W.11) were the members of the Medical Board which carried out autopsy of the child. According to Dr. Satyaveer Yadav (P.W.2), the Post-Mortem Report is Exhibit-2. They discovered the following injuries on the dead body:- i. Swelling, contusion 10 cm x 8 cm over right occepeto-parito temporal area of skull. ii. Bleeding from right ear. iii. Abrasion 3 x 1/2 cm over upper lip and 3 x 1/2 cm over lower lip. iv. Two abrasions 1 x 1 cm each over pubic area. v. One abrasion 1 x 1 cm over left ingevical area. vi. One abrasion 1 x 1 cm over right buttock near labia majora. vii. ii. Bleeding from right ear. iii. Abrasion 3 x 1/2 cm over upper lip and 3 x 1/2 cm over lower lip. iv. Two abrasions 1 x 1 cm each over pubic area. v. One abrasion 1 x 1 cm over left ingevical area. vi. One abrasion 1 x 1 cm over right buttock near labia majora. vii. Abrasion, stained blood size 4 cm linear over both boarders of labia majora on separating labia majora there is lacerated wound (tears) size about 3 cm x 2 cm x muscle deep on each side over lateral wall of vagina including fourchette. 11. The cause of death was coma due to the head injury. 12. Hanuman Singh (P.W.16) claims that "on 1.6.2004, he was posted as S.I. at police station, Behror. At 6:30 AM the police station received a telephone call from Subhash informing the police that his niece, four months old, has been taken by unknown person. Her dead body is lying in Rameshs field." According to him, "the police reached Rameshs field. There the panchnama was prepared. At the field, Subhash submitted a written report (Ex.P.8). The said report was sent with Gangaram, Constable". He has also proven the written report submitted by Anil Kumar. In his cross-examination he admits that "at the field, the parents of the deceased were not present. The child was recognised by distant relatives." 13. Janesh Singh (P.W.17) was the SHO at Police Station, Behror. He is also the Investigating Officer in the present case. He has proven the various documents prepared during the investigation. According to him, he recovered the appellants underwear by Exhibit-P.18. Further, after the appellant was arrested, on 2.6.2004, he gave a statement (Ex.P.23) under Section 27 of the Evidence Act wherein he told the police that he has hidden a plastic bag under a rock, on the Narnol road, which he could get recovered by the police. Consequently, by recovery memo (Ex.P. ), the police recovered a blood stained plastic bag. 14. Anil Kumar (P.W.13) proves the recovery of the appellants underwear by Exhibit-P.18. 15. Virendra Singh (P.W.14) proves the recovery of the plastic bag and the site plan of the scene of recovery of the plastic bag. 16. Pyarelal (P.W.12) states that he was posted as a Constable on 13.7.2004. 14. Anil Kumar (P.W.13) proves the recovery of the appellants underwear by Exhibit-P.18. 15. Virendra Singh (P.W.14) proves the recovery of the plastic bag and the site plan of the scene of recovery of the plastic bag. 16. Pyarelal (P.W.12) states that he was posted as a Constable on 13.7.2004. According to him, he has taken five sealed packets to FSL and has deposited the same with the FSL; the receipt of which is Exhibit-P.15. 17. According to the FSL Report (Ex.P.30), it had received vaginal swab, slide, pubic hair, underwear and a plastic bag. It detected human semen from vaginal swab slide, vaginal swab, and the underwear. And it detected human blood from the plastic bag. 18. Mr. N.A. Naqvi, the learned Senior Counsel, has raised the following contentions before this court: firstly, the case is based entirely on circumstantial evidence. Yet the prosecution has failed to prove its case beyond a reasonable doubt. Secondly, there are only four pieces of evidence produced by the prosecution against the appellant: a) the motive for committing rape on the child as the appellant was living with the family; b) his absence immediately after the disappearance of the child; c) the recovery of blood stained plastic bag at the instance of the appellant; d) the presence of semen on the underwear of the appellant, and on the vaginal swab, and the presence of human blood on the plastic bag. However, according to the learned Sr. Counsel, these four pieces of evidence do not unerringly point towards the guilt of appellant. Therefore, the learned Judge has erred in convicting the appellant for offences under Sections 302, 376(2)(f) and 201 IPC. 19. On the other hand, Mr. Aladeen Khan, the leaned Public Prosecutor, has vehemently contended that these four pieces of evidence are sufficient for establishing the guilt of the appellant beyond a reasonable doubt for the alleged crime. 20. Heard the learned counsel for the parties, examined the record and perused the impugned judgment. 21. Relying on the case of Munish Mubar v. State of Haryana [ (2012) 10 SCC 464 ] , in the case of Dhan Raj @ Dhand v. State of Haryana [ (2014) 6 SCC 745 ], the Honble Supreme Court has reiterated the principle dealing with appreciation of evidence in a case based on circumstantial evidence as under:- 19. 21. Relying on the case of Munish Mubar v. State of Haryana [ (2012) 10 SCC 464 ] , in the case of Dhan Raj @ Dhand v. State of Haryana [ (2014) 6 SCC 745 ], the Honble Supreme Court has reiterated the principle dealing with appreciation of evidence in a case based on circumstantial evidence as under:- 19. We would refer to the decision of this Court in Munish Mubar v. State of Haryana wherein Dr. Chauhan, J. has very aptly and succinctly stated the following: (SCC p.473, para 28) "28. ...The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused." A court has to examine the entire evidence in its entirety especially in case of circumstantial evidence and ensure that the only inference drawn from the evidence is the guilt of the accused. If more than one inference can be drawn then the accused must have the benefit of doubt as it is not the courts job to assume and only when guilt beyond reasonable doubt is proved then it is fair to record conviction. In case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence, and the circumstances so proved must form a complete chain without giving any chance of surmise or conjecture and must also be consistent with the guilt of the accused. 22. Admittedly, the appellant was a servant in the complainants house. According to Anita (P.W.8), the appellant was not looking after their farm, but used to come at night to sleep with the family. Moreover, according to her, when the family woke up at 5:00 Oclock in morning, both the appellant and the child were missing. But subsequently, after one and a half hour the appellant came back. He helped the family to search for the child. Therefore, it cannot be said that he had absconded immediately after the child was missing. According to the prosecution, he was arrested from the complainants house in the evening. Therefore, his presence at the house of the complainant is vouched for. 23. He helped the family to search for the child. Therefore, it cannot be said that he had absconded immediately after the child was missing. According to the prosecution, he was arrested from the complainants house in the evening. Therefore, his presence at the house of the complainant is vouched for. 23. Even if for the sake of argument it were accepted that the appellant had absconded, even then absconding cannot be taken as revealing the appellants guilt. For, even innocent persons may leave the place of the crime fearing that they may be falsely implicated, or falsely arrested by the police. Hence, the appellants absence for few hours does not point towards his guilt. 24. The recovery of the appellants underwear, and the presence of human semen on it also do not establish the appellants guilt. For, according to the prosecution, the appellant was a twenty years old young man. According to the medical report of the appellant (Ex.P.13), he was virile enough to perform sexual intercourse. Therefore, the presence of semen on the underwear of a young man does not necessarily lead to an inference that he has committed the alleged rape. Even if the FSL has discovered human semen on the vaginal swab slide and in the vaginal swab, it does not imply that the rape was in all probability committed by the appellant. For, the FSL has not examined the antigen found in the human semen in the vaginal swab, and the antigen found in the human semen in the underwear. In fact, surprisingly, the police have not even collected the appellants semen and sputum for sending it to the FSL for its report. Therefore, the mere presence of human semen in the vaginal swab and human semen in the underwear cannot be co-related to each other. Therefore, the learned Judge has erred in reading the presence of the human semen as a proof of the alleged rape committed by the appellant. 25. Even if the recovery of the plastic bag at the instance of the appellant were to be read against him, even then the recovery is meaningless. For, the FSL has discovered merely presence of human blood. The prosecution has not eliminated the possibility that the human blood could be that of the appellant, instead of being that of the deceased. Even if the recovery of the plastic bag at the instance of the appellant were to be read against him, even then the recovery is meaningless. For, the FSL has discovered merely presence of human blood. The prosecution has not eliminated the possibility that the human blood could be that of the appellant, instead of being that of the deceased. The prosecution is required to eliminate the possibility that the blood belongs to the accused. In the absence of this elimination, the discovery of human blood cannot be read against the appellant. Moreover, as the plastic bag was discovered from an open place, its recovery is insignificant. 26. As far as the motive is concerned, there is no evidence to prove the motive. Merely because the appellant was living as a servant, merely because he was sleeping in the same courtyard, merely because he has known the child, that, too, as a child of the family, it cannot be concluded that he had the motive to commit the rape and murder of the child. 27. Therefore, a critical analysis of the evidence clearly proves that the prosecution case is riddled with gaping holes. The links of circumstances do not unerringly point to the appellants guilt. In fact, the pieces of evidence are consistent with the appellants innocence. In the case of Dhanraj @ Dhand (supra), the Honble Supreme Court had opined that where there are breaks in chain of circumstances leading to the possibility of more than one inference, the benefit of doubt should be given to the accused. In the present case, there are too many breaks in the chain of circumstances, therefore, this court grants the benefit of doubt to the appellant. 28. For the reasons stated above, the appeal is hereby, allowed. The appellant is acquitted of the charges framed against him. Since he is undergoing his sentence, he shall be set at liberty forthwith, if not wanted in any other criminal case. 29. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Ashok Kumar, is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. 29. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Ashok Kumar, is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeal allowed. *******