JUDGMENT : R.S. Chauhan, J. Aggrieved by the judgment dated 8.3.2006, passed by the Additional Sessions Judge No.2, Kishangarh Bas, Camp Tijara, District Alwar, the appellants Kalua, Arif and Jafroo have approached this Court. By the said judgment, the learned Judge had convicted the appellants as under:- Appellant - Kalua: U/s. 364 IPC- to undergo life imprisonment, to pay a fine of Rs. 2,000/-, and in default of payment of fine, to further undergo one year's S.I. U/s. 376 IPC- to undergo life imprisonment, to pay a fine of Rs. 2,000/-, and in default of payment of fine, to further undergo one year's S.I. U/s. 302 IPC- to undergo life imprisonment, to pay a fine of Rs. 5,000/-, and in default of payment of fine, to further undergo two years' S.I. U/s. 201 IPC- to undergo two years' R.I., to pay a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo six months' S.I. Appellant-Arif: U/s. 364 IPC- to undergo life imprisonment, to pay a fine of Rs. 2,000/-, and in default of payment of fine, to further undergo one year's S.I. U/s. 302 IPC- to undergo life imprisonment, to pay a fine of Rs. 5,000/-, and in default of payment of fine, to further undergo two years' S.I. U/s. 201 IPC- to undergo two years' R.I., to pay a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo six months' S.I. Appellant- Jafroo- U/s. 364 IPC- to undergo life imprisonment, to pay a fine of Rs. 2,000/-, and in default of payment of fine, to further undergo one year's S.I. All the sentences were ordered to run concurrently. The learned Judge has acquitted all the three appellants for the offence under Section 368 IPC. 2. The brief case of the prosecution is that Akhtar Ali (P.W.2) submitted a written report (Exhibit-P/6) before SHO, Police Station Bhiwadi, 24.3.2005. The report when translated in English, reads as under:- "To SHO, Police Station Bhiwadi, Rajasthan. Subject: For the purpose of lodging a report. Sir, It is submitted that my daughter (the name of daughter is not being revealed, in order to protect her identity), aged about five years, on 17.3.2005, around 5 o'clock, my daughter suddenly disappeared from my house. The report when translated in English, reads as under:- "To SHO, Police Station Bhiwadi, Rajasthan. Subject: For the purpose of lodging a report. Sir, It is submitted that my daughter (the name of daughter is not being revealed, in order to protect her identity), aged about five years, on 17.3.2005, around 5 o'clock, my daughter suddenly disappeared from my house. In relation to this, my wife, Smt. Meena had lodged a report for the missing child on 18.3.2005 with the Police Station Bhiwadi. Subsequently, we have been searching for the child both here and in village Aurangabad. We have some information that two boys from our village, Arif and Jafroo, who used to stay here and who owe some money to us, have taken away my daughter. I suspect that it is these persons, who have enticed my daughter away. Kalua s/o Liyakat Meo, is also involved in kidnapping of my daughter. Sd/- Akhtar Ali s/o Chhida Khan Caste Fakeer, aged 37 years, r/o Khanoda, District Bulandshahar, Police Station Aurangabad, presently resident of Ganshyam Gurjar, Harchandpur, Bhiwadi, Police Station Bhiwadi, District Alwar (Raj.)" 3. On the basis of this report (Exhibit-P/6), the police chalked out a formal FIR (Exhibit-P/7), namely FIR No. 85/2005, for the offences under Sections 363 IPC. The police started the investigation. During the course of investigation, the Police apprehended the three accused-appellants. Upon an information given by Arif (Exhibit-P/24) under Section 27 of the Evidence Act, a human skeleton was recovered by Recovery Memo (Exhibit-P/11). With the recovery of the skeleton, the offence punishable under Section 302 IPC was added. After completion of the investigation, the Police filed a charge-sheet against Kalua for the offences under Sections 363, 368, 302, 201 and 376 IPC; against Arif, it filed a charge-sheet for only offences under Sections 363, 368, 302, 201 and 120-B IPC. But against Jafroo, it filed a charge-sheet for the offences under Sections 363, 368 and 120-B IPC. Subsequently, the case was transferred to the court of Sessions Judge No.2, Kishangarh Bas, Camp Tijara, District Alwar. By order dated 18.8.2005, the learned Judge framed the charges against Kalua for the offence under Sections 364, 368, 376, 302 and 201 IPC; against Arif and Jafroo, the learned Judge framed the charges for the offence under Sections 364, 368, 302 and 201 IPC. 4. By order dated 18.8.2005, the learned Judge framed the charges against Kalua for the offence under Sections 364, 368, 376, 302 and 201 IPC; against Arif and Jafroo, the learned Judge framed the charges for the offence under Sections 364, 368, 302 and 201 IPC. 4. In order to prove its case, the prosecution examined fourteen witnesses, and submitted twenty-eight documents. The defence did not examine any witness on its behalf. But did submit a single document. After completion of the trial, the learned Judge convicted and sentenced the appellants as aforementioned. Hence this appeal before this Court. 5. Before this court deals with the contentions of the learned counsel for the appellants and the learned Public Prosecutor, it would be fruitful to briefly consider the evidence produced by the prosecution. 6. Smt. Meena (P.W.1), mother of the deceased, in her examination-in-chief states that "my daughter's name is (the victim) aged about four and a half years. I along with my husband, my two children, both girls, the victim and Sabana live in Harchandpur village, in the house of Ghanshyam Gurjar. I know the accused persons in the court. They are Arif, Jafroo and Kalua. My in-laws' house is in Khanauda, District Bulandshahar, Uttar Pradesh. These persons are from the same village. That is how I know them. These persons had come to Harchandpur, from the place where I used to live along with my husband. Jafroo used to live here and used to work. But he would keep on coming and going. Arif came to our house for the first time. He told us that he is looking for his elder uncle (Tau). The third one, I did not see him, as he was standing outside. One day, Jafroo had threatened my husband that he will grind him to dust (that he would kill him). Although, we did not owe any money to him, he was needlessly harassing us. The incident occurred on 17th March. Arif had stayed at our place for about three to four days. Since he belonged to our village, I gave him food for three to four days. He told us that he is looking for a job as a labourer. He requested that we should get him a small shop. It was merely a pretence that he had come looking for his elder uncle, as his elder uncle was already in the village. He told us that he is looking for a job as a labourer. He requested that we should get him a small shop. It was merely a pretence that he had come looking for his elder uncle, as his elder uncle was already in the village. Arif used to give the victim money and used to entice her with money. I told him not to give any money to the child, as the child is likely to step outside the house and go into the bazar. In the evening, around 5 o'clock, he told me that he would like to leave. My daughter, the victim, came from inside the house, and told me that uncle Arif is taking me with him. He told me that my little daughter would get a chance to spend some time with his wife. He also gave some grapes to my daughter. He told my daughter to go ahead and that he would follow her. Both left in a tempo. I did not suspect anything, as he was a relative. Arif left alone in front of me. Since I am physically handicap, I lie inside the house. Who was standing outside? I do not know. From the time my daughter has left, she has never returned. She is missing. I searched for my daughter in the entire Bhiwadi. We even made announcements over the loudspeaker in Bhiwadi for the purpose of discovering her. But we could not find her. Jafroo is the one, who got my daughter kidnapped. I had also beseeched him to help us. He also went out looking for her. We also asked those, who may have known about whereabouts of my daughter. When Jafroo got down from a tempo and ran away, since then I am convinced that both Jafroo and Arif have kidnapped my daughter. Therefore, I suspect both of them. My husband submitted a report about all these. I did not go with him to file the report. Then she said that she suspect that Kalua, Arif and Jafroo are involved in this case. Kalua was standing outside". In her cross-examination, she states that "on 18th, we had lodged the report for our missing daughter". She told the court that "as she is illiterate, the court can look at the papers and find out as to when exactly the report was filed. Kalua was standing outside". In her cross-examination, she states that "on 18th, we had lodged the report for our missing daughter". She told the court that "as she is illiterate, the court can look at the papers and find out as to when exactly the report was filed. I had named Arif and Jafroo in the report. Subsequently, a phone came. Thereafter, we gave a report in the name of all the three, Kalua, Arif and Jafroo. The report which contains the names of the three is dated 19th. In the report given by me, I had named Jafroo and Arif. I cannot say whether I named Kalua in that report or not. We had received phone-call from Khanauda, from the family members of my husband. But I cannot tell the name of the person who had called. My statement was recorded by the Police but I cannot say whether I have given name of the three persons in Exhibit-D/1 or not. On that day, I had seen Kalua standing outside my house. The fact that they had taken my daughter away in a tempo, I had merely heard. I had not seen it myself. It is true that Arif and the victim had left together from my house. I did not see both of them leave the house together. I had seen only Arif leaving the place. It is true that on that day, Arif had told me that he is returning back to his village. He left thereafter". Then witness stated that "even my daughter left on the same day. I did not see the tempo. In the report, I did not mention the clothes worn by my daughter". Then witness stated that "she was wearing red clothes. It is wrong to say that my daughter had gone out to play. I told my neighbours about my missing daughter. Whether I told the Police about the fact that loudspeakers were used for discovery of my daughter, or that I told my neighbours about her being missing, I do not know. I had told Ghanshyam over the phone that my daughter has been kidnapped. After receiving phone from Khanauda, we did not go to Khanauda to look for my daughter. Arif and Jafroo had met me at Harchandpur. Kamil also told me that these persons had taken my daughter. I had told Ghanshyam over the phone that my daughter has been kidnapped. After receiving phone from Khanauda, we did not go to Khanauda to look for my daughter. Arif and Jafroo had met me at Harchandpur. Kamil also told me that these persons had taken my daughter. I suspect that Arif had taken away my daughter, because he used to entice her." 7. Kamil (P.W.12) in his examination-in-chief states that "in 2005, he resided at Harchandpur, Bhiwadi in Ghanshyam Colony. I know Akhtar Ali, as he belongs to my village. He also used to live at Harchandpur in the same colony. His wife and children also used to live with him. Three people used to visit him, namely Jafroo, Arif and Kalua, who are present today before the court. The incident is of 17.3.2005, when I was returning back home from work around 5 o'clock in the evening, when I reached the Adda (place where one stays), I saw that Arif was with the victim, and was holding her hand. He was accompanied by Jafroo and Kalua. The victim was the daughter of Akhtar Ali. I know the girl, as she was the daughter of Akhtar Ali. I went to my room to wash myself. But when I came back, I saw that all three of them were getting her into a three-wheeler and were leaving in the direction of Phoolbagh. I had come back from my work early, as I had to leave for Delhi to meet my brother. After the incident, I went to Delhi. When I came back, at that time police had already arrested Kalua. The girl was killed thereafter". In his cross-examination, he claims that "his statement was recorded by the police. He had come back to Bhiwadi on 26th - 27th. The Police had recorded his statement at night. Prior to this, he did not contact the police". 8. According to the learned counsel for the accused, the statement recorded on 26th - 27th are not available in the record. When he asked for a copy of the statement, the learned Public Prosecutor told the court that "there is no such statement available on the record." 9. Further, this witness states that "Police had taken his statement at his home. When the Police recorded the statement, lots of people were there. If Akhtar Ali was there, I do not remember. When he asked for a copy of the statement, the learned Public Prosecutor told the court that "there is no such statement available on the record." 9. Further, this witness states that "Police had taken his statement at his home. When the Police recorded the statement, lots of people were there. If Akhtar Ali was there, I do not remember. He admits that he did not tell the police that he had to go to Delhi. The Police did not ask me as to where did I go after the incident. Akhtar Ali does not belong to my village. Jafroo, Arif and Kalua belong to Akhtar Ali's village. I had come only one month before this incident. Prior to this, I did not know the accused. My house is right next to the house of Akhtar Ali. The place where Arif was holding the hands of the victim is opposite Shyam Dharam Kanta. I did not tell the Police about the said place. It must have taken me not more than ten minutes to wash up. At that time, house of Akhtar Ali was open. There is a three-wheeler stand near Shyam Dharam Kanta". He states that "I had seen all the three of them sitting in a three-wheeler. It is the same place where I had seen Arif holding hands of the victim. When I came back from house, Arif was standing where I had left him. But what was the number of three-wheeler, I do not know. I do not even know the driver of the three-wheeler. I used to go to Akhtar Ali's house often. It is wrong to say that I am involved in the kidnapping of the victim. It is wrong to say that I gave this testimony at the behest of the Police". 10. Akhtar Ali (P.W.2), the father of the deceased, and the complainant, has turned hostile and has not supported the case of the prosecution. According to him, he suspects that only Arif is involved in abducting the daughter. He does not suspect anyone else. Since this witness has not supported the prosecution, qua Jafroo and Kalua, the prosecution had declared him hostile. In his cross-examination by the Public Prosecutor, he has admitted that "the Police had investigated the case and had taken his statement". According to him, he suspects that only Arif is involved in abducting the daughter. He does not suspect anyone else. Since this witness has not supported the prosecution, qua Jafroo and Kalua, the prosecution had declared him hostile. In his cross-examination by the Public Prosecutor, he has admitted that "the Police had investigated the case and had taken his statement". He also admitted that "prior to the incident, Jafroo used to live in Bhiwadi, and used to live with them". He claims that "he had never seen Kalua and the part marked in his statement (Exhibit-P/1) from A to B, he did not tell the Police". According to him, "he does not even recognise Kalua". Then he state that "at that time, he did not know Kalua but as this case progressed he came to know Kalua". According to him, "he had called his village and told that ever since Arif has left, his daughter is missing. There I searched for Arif. But I could not locate Arif. The portion marked as C to D in Exhibit-P/1, I did not tell the police this portion. I cannot explain as to how the Police had written this part. My daughter was lying in the mountain. It was her skeleton. This skeleton had been discovered before me and the document (Exhibit-P/2) was made before me. It contains my signatures from A to B. I had recognised frock worn by the victim. Therefore, this skeleton belonged to her. Jafroo was arrested before me. His arrest memo is Exhibit-P/3. It contains my signatures from A to B. Kalua was also arrested before me. His arrest memo is Exhibit-P/4. It contains my signatures from A to B. The Police had also drawn up the site map, which is Exhibit-P/5. That contains my signatures from A to B. I had filed the report about the incident which is Exhibit-P/6, which contains my signatures from A to B. The formal FIR is Exhibit-P/7. It contains my signatures from A to B. It is true that in the report Exhibit-P/6, I had named both, Jafroo and Kalua as persons, who had kidnapped my child. It is wrong to say that I am giving this statement falsely in order to protect Jafroo and Kalua." In his cross-examination, this witness stated that "my family used to live with Arif. I was at work, when the incident had occurred. It is wrong to say that I am giving this statement falsely in order to protect Jafroo and Kalua." In his cross-examination, this witness stated that "my family used to live with Arif. I was at work, when the incident had occurred. It is true that I did not see Arif or others taking away my daughter. It is true that I had submitted the report only on the basis of suspicion. My daughter was discovered in the mountains, near village Batkal, on the top of the mountain. The documents made with regard to skeleton was made at the site, where the skeleton was discovered. I think the date on that day was 31st March. On the skeleton, there were some hair, an underwear and an undershirt. Since the accused persons had showed the place, it is on this basis I say that skeleton belong to my daughter. There is a difference between skeleton of an animal, and a skeleton of a human being. With all confidence, I say that the skeleton belonged to my daughter. Arif's elder uncle was already in Gaziabad and was not lost. That was merely an excuse. It is true that except that Arif, I did not know the other two accused persons prior to the incident. Jafroo was one of the persons who had gone with me for looking for my daughter". 11. Sher Mohammad (P.W.3) has proven the site plan from the place of recovery Exhibit-P/5. He states that "the accused Arif had gotten a human skeleton, few bones and the clothes of the deceased recovered. This is reflected in Exhibit- P/8. Site plan is that of top of the mountain". He also claims that "the accused Kalua had gotten the underwear and other things belonging to the deceased and few bones. They were recovered through Exhibit-P/9. The said exhibit was prepared on the top of the mountain". He has also proven the arrest memo of Kalua (Exhibit-P/4). He also proved the arrest memo of Arif (Exhibit-P/10). He also proved the arrest memo of Jafroo (Exhibit-P/3). According to him, "the human skeleton and the red coloured frock were recovered before him by Exhibit- P/11". Moreover, according to him, "the human bones were recovered at the instance of Arif by recovery memo Exhibit- P/13. The underwear of the deceased was recovered at the instance of Kalua through recovery memo Exhibit-P/14". According to him, "the human skeleton and the red coloured frock were recovered before him by Exhibit- P/11". Moreover, according to him, "the human bones were recovered at the instance of Arif by recovery memo Exhibit- P/13. The underwear of the deceased was recovered at the instance of Kalua through recovery memo Exhibit-P/14". He also claims that "at the time when the bones and the red frock were discovered, Test Identification Parade was held. This Test Identification Parade by five persons was done under Section 174 Cr.P.C". The witness had identified both human bones as well as red frock. This is reflected in Exhibit-P/2. In the cross-examination, this witness admits that "he is real younger brother of Akhtar Ali (P.W.2)". He also admits that "he does not remember the date on which the human skeleton and the clothes were identified. The father of the deceased had told us that the bones belonged to her and clothes also belonged to her. It is on this basis that I had said that bones belonged to her. Then Arif also said so. Arif also told us that they had left the girl at the spot". 12. Jitendra Singh (P.W.4) has also proven the recovery of the human skeleton and the bones and all the clothes of the deceased. He has proven the site plan of the place of recovery Exhibit-P/8. In his cross-examination, he admits that "the father of the victim had identified the bones to be hers. On the same basis, he had claimed that bones belonged to the victim". 13. Chand Mohammad (P.W.5) claims that "some half burnt clothes were recovered at the instance of Kalua. The pieces were red in colour. The recovery memo is Exhibit-P/20. The site plan of the place of occurrence is Exhibit-P/2. The Exhibit-P/21 is of the place of occurrence. The clothes belonged to a girl. The girl was that of my elder brother, hence recognised the clothes". In cross-examination he claims that "he does not remember the day when he had seen the clothes". He further admits that "the site plan for the recovery was made in Bhiwadi". "The questions put to him were that- Question: The place where you had signed, there were only you and the police? Answer: Yes. Then he said, other men and women were also standing there. Question: Which Officer had made the site plan? He further admits that "the site plan for the recovery was made in Bhiwadi". "The questions put to him were that- Question: The place where you had signed, there were only you and the police? Answer: Yes. Then he said, other men and women were also standing there. Question: Which Officer had made the site plan? Answer: I do not know who had made the site plan. Amarpal was also with us. I do not know when the site plan was made. I work outside." 14. Hannu (P.W.6) in his examination-in-chief claims that "skeleton and frock were recovered at the instance of Arif, which is marked as Exhibit-P/11. It contains my signatures from C to D. The site plan of place of occurrence is Exhibit- P/8. The taking of plain and blood stained soil is marked as Exhibit-P/12. The recovery memo of recoveries of the underwear is Exhibit-P/14; the site plan of the place of such recoveries is Exhibit-P/9". In his cross-examination, he clearly admits that "he does not understand anything about site plan. He cannot even tell the place where items were recovered by looking at the site plan". According to him, "the items were recovered on a hill". He claims that "it is true that when he was asked to sign papers, only he and Police personnels were there. Prior to the recovery of the clothes, he had never seen the clothes. It is wrong to say that due to the statement of the father of the deceased, I am repeating the same statement with regard to recovery of the clothes". He admits that "such type of clothes are readily available in the market. In front of him, few bones, hair and clothes were recovered from a bush, which were recognised by her father". He admits that "earlier he used to work with Akhtar Ali, the father of the deceased". According to him, "the clothes, bones and the underwear were recovered on 31st March". 15. Salim (P.W.7) has turned hostile. He was supposed to have supported the recovery of skeleton and the clothes. But he has failed to do so. 16. Dr. Mahendra Singh Bundal (P.W.8) had examined Kalua for his impotency by report Exhibit-P/22. 17. Rakesh Kumar (P.W.9) was the person, who had taken the sealed packets from the Malkhana, and deposited the same with the FSL. He was supposed to have supported the recovery of skeleton and the clothes. But he has failed to do so. 16. Dr. Mahendra Singh Bundal (P.W.8) had examined Kalua for his impotency by report Exhibit-P/22. 17. Rakesh Kumar (P.W.9) was the person, who had taken the sealed packets from the Malkhana, and deposited the same with the FSL. He had received its receipt (Exhibit-P/23) and (Exhibit-P/24), which he had submitted back at the Police Station. 18. Dr. Dhiraj Saxena (P.W.10) had examined the skeleton and the bones. He was a member of the Medical Board, which carried out the said examination. According to him, "the bones were kept in a packet. When the packet was opened, the bones were discovered to be disjointed. The bones belonged to a human being. By looking at the bones, one could not tell the sex of the skeleton. One could not even tell the cause of death of the skeleton. The age of the skeleton was about 6 to 7 years. The examination Report is Exhibit-P/25. The cause of death could not be discovered". According to him, "skeleton had some hair still sticking to it". According to him, "the bones of the face were sent to the FSL for getting superimposition of the image". This witness was not cross-examined by the learned counsel for the defence. 19. Jangliya Ram (P.W.11) was the Investigating Officer. He has merely proved different documents prepared by the Investigating Agency during the investigation. According to him, "the report submitted by FSL is Exhibit-P/28". In his testimony, he informs the court that during his police custody, Kalua had made a statement under Section 27 of the Evidence Act (Exhibit-P/25), wherein he informed the police that he could get his underwear and the underwear of the deceased recovered from the top of the mountains amongst the bushes. Upon this information, the police recovered two underwears, by recovery memo (Exhibit-P/14). Both the underwears had blood stain and semen stain upon them. Similarly, during his police custody, Kalua also informed the police under Section 27 of the Evidence Act (Exhibit-P/26) that he could get a burnt red coloured Lehanga recovered from behind the Shivali Masjid. Upon this information, by recovery memo (Exhibit-P/20), the police recovered a red coloured burnt Lehanga. 20. Vilayat Khan (P.W.13), is the witness to the recovery of few red coloured clothes, which were recovered at the instance of Kalua. Upon this information, by recovery memo (Exhibit-P/20), the police recovered a red coloured burnt Lehanga. 20. Vilayat Khan (P.W.13), is the witness to the recovery of few red coloured clothes, which were recovered at the instance of Kalua. He has proven the recovery as well as site plan of the place of occurrence. 21. Amarpal (P.W.14) is the witness of the arrest of all the three accused appellants. 22. With these witnesses, the prosecution closed its case. Thus, the prosecution has produced the following evidence against the appellants:- 23. Firstly, the evidence of the last seen testified by Exhibit-P/12, recovery of skeleton, recovery of few bones and recovery of frock, lehanga and underwear the deceased, clothes of the deceased at the instance of Kalua and Arif, and the recovery of Kalua's underwear at his instance. 24. Mr. Satyapal Poshwal, the learned counsel for the appellants, has vehemently contended that the entire case is based on circumstantial evidence. However, the prosecution has failed to prove its case beyond reasonable doubt. As it has failed to forge the circumstance in such a sequences as to unerringly point towards the guilt of the accused. 25. Secondly, the evidence of last seen is hopelessly weak. For, both Meena (P.W.1) and Akhtar Ali (P.W.2), mother and father of the deceased, respectively have admitted that they have not seen the victim going with Arif at the last moment. Although, the prosecution has introduced Kamil (P.W.12) as a witness of the last seen in order to buttress its case, but the said witness is a fabricated one. His statement was recorded much later than from the date of the incident. Moreover, although, he claims to be the neighbour of Akhtar Ali, although, he claims to have visited Akhtar Ali's house often, yet despite being witness of last seen, he did not reveal the names of the accused appellants to Akhtar Ali. His silence about the last seen with the parents of the deceased, raises great doubt about the veracity of his testimony. 26. Thirdly, the recovery of skeleton at the instance of Arif does not connect him to the alleged crime. For, Dr. Dhiraj Saxena (P.W.10) has clearly stated that by looking at the skeleton, neither its gender, nor the cause of its death could be deciphered. Thus, the prosecution has failed to prove the existence of corpus delicti. 26. Thirdly, the recovery of skeleton at the instance of Arif does not connect him to the alleged crime. For, Dr. Dhiraj Saxena (P.W.10) has clearly stated that by looking at the skeleton, neither its gender, nor the cause of its death could be deciphered. Thus, the prosecution has failed to prove the existence of corpus delicti. Since there is no direct evidence, it was essential to prove the corpus delicti. But the prosecution has failed to do so. 27. Fourthly, the recovery of the frock and of the clothes of the deceased were never subjected to a formal Test Identification Parade. They were merely identified by the father, Akhtar Ali (P.W.2) at the place where they were recovered. Thus, even the recovery of the clothes at the behest of Arif, do not connect him to the alleged crime. 28. Fifthly, even the recovery of underwear of the deceased at the instance of Kalua, does not connect him to the alleged crime, as the underwear was also not subjected to Test Identification Parade. Moreover, Meena (P.W.1) merely states that Kalua was standing outside, yet she claims that because she is physically challenged, she was inside the house. Therefore, the presence of Kalua is not proven by the prosecution when the child left the house. 29. Sixthly, Jafroo has been falsely implicated and has been convicted only on the fragile evidence that he had threatened Akhtar Ali, that he would kill him. Admittedly, loan amounts were due allegedly from both the sides. Therefore, threat was given by Jafroo. But merely giving a threat cannot connect the accused to the alleged crime of murder. Hence, the prosecution has miserably failed to prove its case qua Jafroo. 30. Lastly, the prosecution has failed to establish the offence of Section 376 IPC, as there is no evidence that the victim was ever subjected to rape by Kalua. Although, according to the prosecution upon an information given by Kalua (Exhibit D. B. CR. Appeal No. 369/2006 Kallua & Ors. v. State 18/24 P/25), underwear belonging to Kalua was recovered. Similarly, although an underwear belonging to the deceased, upon a statement given by Kalua (Exhibit-P/36) was also recovered. But neither of these two clothes were ever sent to FSL for its examination. Therefore, the recovery of these two underwear does not connect Kalua to the offence under Section 376 IPC. 31. On the other hand, Mr. Similarly, although an underwear belonging to the deceased, upon a statement given by Kalua (Exhibit-P/36) was also recovered. But neither of these two clothes were ever sent to FSL for its examination. Therefore, the recovery of these two underwear does not connect Kalua to the offence under Section 376 IPC. 31. On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor has vehemently contended that the prosecution has succeeded in establishing its case. Meena (P.W.1) stated that Arif had stayed with her for three to four days. He would entice the victim with money. He even gave her grapes to eat and took her away. According to Kamil (P.W.12), he had seen Arif holding hands of the girl and had seen the girl in the company of Arif, Jafroo and Kamil. Thus, the evidence of last seen is well established. Moreover, at the instance of Arif, a human skeleton of child was discovered in the mountains. Even if the gender of the skeleton is not known, nonetheless, the skeleton belonged to a child. Similarly, frock worn by the deceased was identified by her father, Akhtar Ali. At the instance of Kalua, his and victim's underwear have been discovered vide Exhibit-P/14. The recovery of said underwear has been proven by Sher Mohammad (P.W.3). Both the underwears had spots of semen. Therefore, it was obvious that Kalua had raped the deceased before killing her. Therefore, the offence both under Sections 376 and 302 IPC were established by the prosecution. Moreover, Lehanga (skirt) and half burnt part of that Lehanga were also discovered at the instance of Kalua by Exhibit-P/20 and Exhibit-P/21, respectively. These clothes also belonged to the deceased. Thus, Kalua's involvement in the case is well established. 32. Lastly, so far as Jafroo is concerned, the learned Public Prosecutor has contended that according to Kamil (P.W.12), Jafroo was seen on the last occasion with the deceased. Jafroo has not offered any explanation, as to what happened to the deceased after she was last seen with him. Therefore, the learned Public Prosecutor submitted that the trial Judge has rightly convicted him for the offence under Sections 364 IPC. Hence, the learned Public Prosecutor has supported the impugned judgment. 33. Jafroo has not offered any explanation, as to what happened to the deceased after she was last seen with him. Therefore, the learned Public Prosecutor submitted that the trial Judge has rightly convicted him for the offence under Sections 364 IPC. Hence, the learned Public Prosecutor has supported the impugned judgment. 33. In the case of Dharam Deo Yadav v. State of Uttar Pradesh [ (2014) 5 SCC 509 ], the Hon'ble Apex Court has laid down the principles governing the appreciation of evidence in case based on of circumstantial evidence as under:- "Circumstantial evidence is evidence of relevant facts from which, one can, by process of reasoning, infer about the existence of facts in issue or factum probandum. In Hanumant, Govind Nargundkar v. State of M.P., this Court held as follows: (AIR pp. 345-46, para 10) "10.....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance, be fully established and all the facts so established should be consistent only with the hypotheses of the guilt of the accused. Again, the circumstances would be of a conclusive nature and tendency and they should be such as to exclude but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye-witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, accused may be convicted on the basis of such circumstantial evidence." 34. By dolling out some scattered piece of evidence, the prosecution does not discharge the burden of proof. By dolling out some scattered piece of evidence, the prosecution does not discharge the burden of proof. While in a case of direct evidence, the prosecution is heavily armed against the accused, in the case of circumstantial evidence, the prosecution can only forge a chain of circumstances, which would unerringly point towards the guilt of the accused. Therefore, by merely revealing a few circumstances, which are disconnected and disjointed, the prosecution cannot succeed in securing conviction of the accused. In a case based on circumstantial evidence, the court has to carefully read the evidence before convicting the accused. The court cannot afford to be swayed by the gruesome nature of the crime. It cannot afford to convict an accused on the basis of surmises and conjectures. Since there is a grave possibility that the court may be influenced by the gruesome nature of crime, criminal jurisprudence has always insisted that the prosecution must establish its case through cogent and convincing evidence. 35. Meena (P.W.1) had claimed in her examination-in-chief that Arif had left with the victim from the house. But in her cross-examination, she has clearly stated that when Arif left, he left alone. Moreover, she admits "the fact that the persons had left in a Tempo, she had merely heard". Therefore, the said fact is only a hearsay evidence. In her examination-in-chief, she claims that since she is physically challenged person, she was confined inside the house. Therefore, she had no knowledge as to who were the people standing outside. Yet in her cross-examination, she certainly claims that Kalua was standing outside. Interestingly, although, in its cross-examination, she claims that Kamil (P.W.12) had told her that these boys had taken her daughter away, yet this fact is not corroborated by Kamil's testimony. Kamil (P.W.12) merely claims that he is a neighbour of Akhtar Ali, the father of the deceased. But he does not tell the court that he had informed them that he had seen the appellants on the last occasion with the deceased. 36. Kamil (P.W.12) in his examination-in-chief, certainly claims that he had seen Arif, holding hands of the child and had seen Kalua and Jafroo with him. He also claims that he had seen all three of them leaving in a tempo with the child. 36. Kamil (P.W.12) in his examination-in-chief, certainly claims that he had seen Arif, holding hands of the child and had seen Kalua and Jafroo with him. He also claims that he had seen all three of them leaving in a tempo with the child. But in the cross-examination, he claims that his statement was not recorded by the police till 26th and 27th of March, 2005. In fact, according to him, it was recorded on 28th March, 2005. Yet no such statement has been produced by the prosecution. Even the learned Public Prosecutor has admitted that "no such statement exists in the file". Moreover, although he claims to be a neighbour of Akhtar Ali, he does not tell the court that he had informed Akhtar Ali and his wife about the fact that the appellants had taken away their daughter with them. His silence on the entire point, with his own neighbour, casts doubt about the veracity of his testimony. Hence, it seems that Kamil (P.W.2) is a fabricated witness in order to add teeth to the case of the prosecution. 37. Even if the evidence of last seen were to be believed hypothetically, even then the evidence by itself does not necessarily lead to the inference that the appellants have committed the alleged crime. In the case of Kanhaiya Lal v. State of Rajasthan, 2014 (4) SCC 715 , the Hon'ble Supreme Court has opined that mere non explanation of being last seen together with the deceased person on part of the accused by itself cannot lead to proof of guilt against him. Therefore, even if the appellants were seen on the last occasion with the child, it does not necessarily point towards their guilt shorn of any other corroborative evidence. 38. Even if the recovery of skeleton can be accepted hypothetically, even then it does not strengthen the case of the prosecution. For, according to Dr. Dhiraj Saxena (P.W.10), the Medical Board had merely received a packet full of bones, which were disjointed. Looking at these bones, the gender of the bones could not be deciphered. Moreover, it could not be said as to what was the cause of death. Merely because the bones belonged to a child between six to seven years, it does not lead to the conclusion that the bones must have belonged to the victim in the present case. Looking at these bones, the gender of the bones could not be deciphered. Moreover, it could not be said as to what was the cause of death. Merely because the bones belonged to a child between six to seven years, it does not lead to the conclusion that the bones must have belonged to the victim in the present case. Thus, we do not know the identity of the child, whose bones were discovered allegedly at the instance of Arif. The statement given by Arif under Section 27 of Evidence Act, that this is the place where he had burried the dead body of the victim, obviously cannot be read against him. 39. Recovery of a red frock, a lehanga or half burnt lehanga also are meaningless, as these pieces of clothes have not been subjected to formal Test Identification Parade. Akhtar Ali merely identifies the clothes as belonging to the victim. But such identification is not an objective one. Therefore, these recoveries do not buttress the case of the prosecution. Furthermore, although the prosecution claims that it had recovered two underwears, one belonging to the deceased and the other belonging to Kalua, but even this recovery is insignificant. For, these underwears were never sent to the FSL in order to discover whether they contained Kalua's semen or not. Mere presence of semen, as rightly noticed in the recovery memo, cannot be read against him. For, according to Dr. Mahendra Sing Bundal (P.W.8), Kalua was 24 years old young man. He was potent enough to have sex. The presence of semen on his underwear does not necessarily connect him to the alleged offence of rape. Unfortunately, the learned Judge has jumped to the conclusion that merely because two underwears were recovered at his instance, therefore, he must have raped the child. But such conclusion, needless to say, are based on surmises and conjectures and not on cogent proof. 40. Lastly, so far as Jafroo is concerned, the only evidence against him is that of last seen, and the evidence of Meena (P.W.1) that Jafroo had threatened her husband that he would kill him. As discussed above, the evidence of last seen is unreliable. Therefore, the prosecution has failed to prove the evidence of last seen against Jafroo. A mere threat given to Akhtar Ali would not lead to the conclusion that Jafroo is involved in the case. As discussed above, the evidence of last seen is unreliable. Therefore, the prosecution has failed to prove the evidence of last seen against Jafroo. A mere threat given to Akhtar Ali would not lead to the conclusion that Jafroo is involved in the case. Most importantly, Akhtar Ali has turned hostile in his testimony. He does not reveal the fact that he was ever threatened by Jafroo. In his cross-examination, he only speaks about Arif and clearly states that he has no suspicion about the involvement of Jafroo and Kalua. Therefore, the alleged threat is too fragile to convict Jafroo with the alleged offence under Section 364 IPC. 41. Mere discovery of clothes of the accused, mere discovery of skeleton of a child, mere discovery of underwear of the deceased and one of the accused, does not lead to the conclusive conclusion that the appellants are guilty of the alleged crime. 42. For the reasons stated above, the appeal is allowed. The impugned judgment dated 3.8.2006 is set aside. The appellants are acquitted of the charges framed against them. Since they are languishing in the jail, it is directed that they shall be set at liberty, forthwith, if not wanted in any other case. 43. Keeping, however, in view of the provisions of Section 437-A Cr.P.C., the appellants, namely Kalua, Arif and Jafroo are directed to forthwith furnish their 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 this judgment, or an grant of the leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.