JUDGMENT : Hon’ble Alok Singh, J. Present appeal is preferred assailing the judgment and order dated 28.02.2014 passed by the Sessions Judge, Nainital in Session Trial No. 50 of 2013, whereby the accused appellant was held guilty for the offences punishable under Section 457, 363, 376 and 302 IPC; was awarded RI for a period of five years and fine of Rs. 3,000/- and, in default of payment of fine, to serve additional imprisonment for a period of one year under Section 457; to undergo RI for a period of seven years and to pay fine of Rs. 5,000/- and, in default of payment of fine, to serve additional imprisonment for a period of one year under Section 363; to undergo life imprisonment and to pay fine of Rs. 10,000/- and, in default of payment of fine, to undergo additional imprisonment for a period of two years under Section 376 IPC; was awarded sentence of death for the offence punishable under Section 302 IPC. 2. Since, the appellant was awarded sentence of death by the Session Court, therefore, record was submitted to this Court for confirmation under Section 366 of the Code of Criminal Procedure. 3. 2. Since, the appellant was awarded sentence of death by the Session Court, therefore, record was submitted to this Court for confirmation under Section 366 of the Code of Criminal Procedure. 3. As per the prosecution story, in the intervening night of 10.7.2012 – 11.7.2012, Naveen Ram, PW 1 was sleeping in one room with his wife along with one daughter Swati, while Smt. Bhagirathi Devi, PW5 (mother of PW1 and grand-mother of the deceased), was sleeping in another room with her three grand-daughters including Sanjana @ Nanu (deceased), aged about 8 years; at about 01:00 a.m., when Smt. Bhagirathi Devi, PW5, woke up to relieve herself, then she noticed that Sanjana @ Nanu was not present in the room; PW5 Bhagirathi Devi, grand-mother, immediately informed PW1 Naveen Ram that Sanjana @ Nanu was missing; PW1 Naveen Ram immediately made search for Sanjana @ Nanu, however, in vain; Thereafter, PW1 went to all his neighbours including accused Deepak Arya for the search of Sanjana @ Nanu, however, she could not be traced; PW1 Naveen Ram, accused Deepak Arya and other neighbours started making search about Sanjana in the nearby agricultural fields; at about 05:00 a.m., early in the morning; naked dead body of Sanjana @ Nanu was found in a ditch in one of the agricultural fields; near the dead body of Sanjana @ Nanu, one phial of whitener, piece of the undergarment and sleepers of PW5 Bhagirathi Devi were found lying in the same field; accused lifted the dead body of Sanjana @ Nanu and carried it to the house of Naveen Ram, PW1 and the dead body was kept in the house of PW1 Naveen Ram and, thereafter, PW1 Naveen Ram got registered FIR (Exhibit 1) with the P.S. Lalkuan, District Nainital. 4. Post-mortem was conducted on the dead body of Sanjana @ Nanu by the panel of two doctors, namely, Dr. Ishwar Tayal, PW10 and Dr. Soni Uttam on 11.7.2012 at about 02:30 p.m. As per the post-mortem report and statement of PW10 Dr. Ishwar Tayal, cause of death of Sanjana @ Nanu was by strangulation and she might be subjected to rape before her death. 5. Blood sample and vaginal swab of the deceased were collected in separate jars for the purpose of chemical examination including DNA, if required. Ishwar Tayal, cause of death of Sanjana @ Nanu was by strangulation and she might be subjected to rape before her death. 5. Blood sample and vaginal swab of the deceased were collected in separate jars for the purpose of chemical examination including DNA, if required. Since, it was a blind rape-cum-murder case of a minor girl, therefore, blood samples of Kailash Chandra, Brijesh Arya, Manoj Ram, Ganesh Ram, Brijesh Arya @ Birju, Vijay Kumar, Vinay Prasad, Kailash Arya, Bhart Arya, Jeevan Singh Kanwal, Bablu, Shyamlal, Pradeep Kumar, Pawan Ram, Gopal Tiwari, Ganesh Ram, Anil Arya, Rajan Ram, Ramesh Paldia, Santosh @ Devia, Jagdish Singh Gadia, Naveen Arya S/o Harish Ram, Santosh S/o Dhani Ram, Sagar, Manish, Manoj, Prakash, Amit, Suraj, Mahesh Ram and Ajay Kumar were taken at different stages and were sent for DNA matching, however, their DNA could not match. Ultimately, blood sample of present accused was taken and was sent for DNA matching. Dr. B.K. Mahapatra, PW21, vide DNA Profiling Report dated 5.2.2013 (Exhibit A-101) opined that DNA profile of Deepak Arya/accused is consistent with the DNA obtained from the vaginal wash and swab of the deceased. 6. In view of the DNA Profiling Report dated 5.2.2013, Exhibit Ka-101, submitted by Dr. B.K. Mahapatra, PW21, Investigating Officer has arrested the appellant on 7.2.2013. Accused/appellant allegedly confessed his guilt before the police. His confession was recorded in the case diary, copy of which is available on the paper book at Page No. 276. In view of the DNA profiling report and confessional statement of the accused, the Investigation Officer has submitted the chargesheet (Exhibit Ka-100) against the accused appellant under Sections 457, 363, 376, 302 and 201 IPC. After the committal of the trial to the court of sessions, learned Sessions Judge was pleased to frame charges against the accused appellant on 8.4.2013 for the offences punishable under Sections 457, 363, 376, 302 and 201 IPC. Accused appellant denied the charges and claimed trial. 7. To prove the prosecution story, from the side of the prosecution as many as 21 witnesses, namely, Naveen Ram, PW1, Head Constable Dinesh Chandra Bhatt, PW2, Sub-Inspector B.S. Bisht, PW3, Jeevan Arya, PW4, Bhagirathi Devi, PW5, constable Sushila Rana, PW6, Vijay Kumar, PW7, Rajendra Arya, PW8, Inspector Vipin Chandra Pant, PW9, Dr. Ishwar Tayal, PW10, S.I. Hem Chandra Pant, PW11, constable Girdhari Lal, PW12, constable Lalit Kumar Srivastava, PW13, Dr. Ishwar Tayal, PW10, S.I. Hem Chandra Pant, PW11, constable Girdhari Lal, PW12, constable Lalit Kumar Srivastava, PW13, Dr. S.S. Bhardwaj, PW14, Dr. Usha Bhatt, PW15, Smt. Lata, PW16, constable Madan Mohan Bisht, PW17, Basant Lal @ Ballu, PW18, constable Dinesh Singh Papola, PW19, Inspector Rajkishore Singh Pharswan, PW20 and Dr. B.K. Mahapatra, PW21 were examined. From the side of defence, two witnesses, namely, DW1 Smt. Seema (wife of the deceased appellant) and Dr. C.P. Bhesora, DW2 were examined. Thereafter, statements of the accused were recorded under Section 313 CrPC. 8. Having considered entire material available on record, learned Sessions Judge was of the opinion that prosecution was able to prove the prosecution story beyond reasonable doubt. Therefore, learned Sessions Judge was pleased to hold the appellant guilty for the offences punishable under Section 457, 363, 376, 302 IPC. Learned Sessions Judge was also of the view that since the present case falls within the category of “rarest of rare cases”, therefore, death penalty should be awarded to the accused appellant and, ultimately, sentences as narrated hereinbefore were awarded to the accused appellant. Feeling aggrieved, appellant has preferred the present appeal. 9. We have heard Ms. Manisha Bhandari, Advocate with Mr. Prem Kaushal, Advocate for the appellant and Mr. K.S. Rautela, learned Government Advocate for the State, and have carefully perused the record. 10. Undisputedly, this is a blind rape-cum-murder case. There is no last seen evidence too, whereby we can say that deceased was seen in the company of the accused soon before her death. None has seen the accused going with the deceased towards the field, wherefrom dead body of the deceased was recovered. None has seen the accused appellant coming from the site or place of occurrence. The entire prosecution story is roaming around the DNA Profiling Report as well as the alleged confessional statement of the accused appellant only. 11. Hon’ble Apex Court in the case of Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh reported in (2009) 14 SCC 607 , has held as under: “Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine.” There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA profiling and its applications.)” 12. As per the US Department of Justice, Office of Victims of Crime report April, 2001, DNA is a powerful investigative tool because, with the exception of identical twins, no two people have the same DNA. In other words, the sequence or order of the DNA building blocks is different in particular regions of the cell, making each person’s DNA unique. Therefore, DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same way the finger-prints are used. DNA also can identify a victim through the DNA of relatives if a victim’s body cannot be found. 13. We have no hesitation to hold that Court can place reliance on the DNA profiling report as well as the statement of the Scientist, who has conducted the DNA profiling, under Section 45 of the Indian Evidence Act. 14. PW21 Dr. B.K. Mahapatra, Senior Scientific Officer, Biology, CFSL (CBI), New Delhi, while appearing in the witness box has stated in paragraph no. 14 of his statement that DNA profile of the accused was matching with DNA profile generated from Exhibits 1a, 1b, 1c and 1f. 15. From the report, Exhibit Ka-101, as well as statement of PW21 Dr. B.K. Mahapatra, it can safely be said that accused made contact with the body of Sanjana @ Nanu. 16. 14 of his statement that DNA profile of the accused was matching with DNA profile generated from Exhibits 1a, 1b, 1c and 1f. 15. From the report, Exhibit Ka-101, as well as statement of PW21 Dr. B.K. Mahapatra, it can safely be said that accused made contact with the body of Sanjana @ Nanu. 16. Now, moot question remains - As to whether the accused was in contact with the body of Sanjana @ Nanu when the Sanjana @ Nanu was alive, to reach to the conclusion that the accused was the person, who could have raped and murdered her, or was in contact with the dead body after the offence took place? 17. In other words, now we have to find out as to why DNA profiling of the accused was found matching with the DNA profiling taken out from the vaginal wash/swab of the deceased Sanjana @ Nanu. 18. Undisputedly, none has seen the accused committing the crime. Accused was not seen in the company of the deceased soon before the commission of crime or soon after the commission of crime. 19. PW1 Naveen Ram, father of the deceased, in paragraph nos. 10 and 34 has stated that he, accused and other neighbours were searching for Sanjana @ Nanu in the agricultural fields. When dead body of Sanjana @ Nanu was found in the naked stage, accused lifted the dead body of Sanjana @ Nanu in his arms rested it with his shoulder brought it to the house of PW1. 20. Smt. Lata, PW16, in paragraph nos. 14 & 15 of her statement, has stated as under: 14. This is correct to say that dead body of Sanjana @ Nanu was covered by the shirt of Deepak (accused) and accused was not wearing any shirt. 15. Those were the hot days and everybody was sweating. Deepak (accused) was also soaked with sweat due to carrying the dead body of Sanjana @ Nanu. Blood of Nanu was also over the body of Deepak. 21. DW1 Smt. Seema, wife of the accused, in paragraph no. 15. Those were the hot days and everybody was sweating. Deepak (accused) was also soaked with sweat due to carrying the dead body of Sanjana @ Nanu. Blood of Nanu was also over the body of Deepak. 21. DW1 Smt. Seema, wife of the accused, in paragraph no. 4 and 5 of her statement, has stated that all were searching for Nanu in the village; after about 4-5 hours, Deepak came running carrying the dead body of Sanjana @ Nanu; Nanu was naked, however, her dead body was covered by the shirt of the accused; after keeping the dead body of Nanu in the courtyard, accused started taking rest because he was sweating profusely; Deepak was not wearing the shirt because the dead body of Nanu was under the cover of his shirt. 22. A specific question No. 14 was asked while recording statement under Section 313 CrPC from the accused as to whether he has brought the naked dead body of Sanjana @ Nanu to the house of PW1, which was replied in the affirmative. 23. In view of the above, it is, thus, clear that after the dead body of Sanjana @ Nanu was recovered in the naked stage, accused lifted the naked body of Sanjana @ Nanu in his hands rested it on his shoulder and he was not wearing the shirt and was sweating profusely and he carried the dead body of Sanjana @ Nanu back to the house. In other words, naked dead body of Sanjana @ Nanu came into the contact with the body of the accused while carrying the same from the agricultural field to the house of PW1 Naveen Ram and the accused was profusely sweating. 24. PW21 Dr. B.K. Mahapatra, in paragraph no. 37 of his statement, has stated as under: “37. The dead skin cells can be a source of D.N.A. The body has its regular process to create the new cells and discarding dead cells and in the circumstance there is a probability if the body is touched with the other individual’s body transfer of dead cells would occur to the body of other person. The hairs without root are not useful for D.N.A. test. The hairs without root are not useful for D.N.A. test. The saliva contains D.N.A. if the sufficient number of cells are present in saliva and again in the sweat if sufficient number of dead cells are present there remains a probability of D.N.A. for test.” 25. As per the statement of PW21 Dr. B.K. Mahapatra, the body has its regular process to create the new cells and discarding dead cells and in the circumstance if the body is touched with other individual’s body, transfer of dead cells would occur to the body of dead person. 26. We find force in the submission of Ms. Manisha Bhandari, learned counsel for the appellant that when naked body of Sanjana @ Nanu was being brought to the house by the accused, who himself was not wearing the shirt and was sweating profusely, his dead body cells might have come into the contact with the dead body of Sanjana @ Nanu, therefore, possibility to find out the dead cells of the accused in the vaginal wash/swab of the deceased cannot be ruled out completely. 27. As we have held earlier that from the DNA profiling report, the only thing which is proved is that the accused was in contact with the body of Sanjana @ Nanu but this is the question to be decided as to whether it was before the death or after the death. The body of the accused was in touch with the body of Sanjana @ Nanu after the death of Sanjana @ Nanu when her body was being brought from the agricultural field to the house. 28. There is another aspect of the matter. One hair was also found from the left fist of the deceased, however, it was never got matched with the accused. Not only this, part of mutilated banian sandow (bandi) of the deceased was also received from the spot, however, it was also not sent for chemical examination. 29. 28. There is another aspect of the matter. One hair was also found from the left fist of the deceased, however, it was never got matched with the accused. Not only this, part of mutilated banian sandow (bandi) of the deceased was also received from the spot, however, it was also not sent for chemical examination. 29. As per the confessional statement of the accused/appellant, he under the influence of liquor went to the house of PW1 and found Sanjana sleeping; he decided to have sexual intercourse with Sanjana, therefore, he lifted Sanjana in his arms and rushed from the house of PW1; meanwhile, Sanjana woke up; he put his hand on the mouth of Sanjana and pressed it, thereby she fell unconscious; when he realized that Sanjana has died, he took her to the agricultural field, took off her undergarment and has raped her. 30. Although alleged confessional statement of the accused/appellant is hit by Section 25 of the Indian Evidence Act, however, from the alleged confessional statement, it seems that accused/appellant made sexual assault on the dead body of Sanjana @ Nanu. Neither the post-mortem report nor the statement of PW10 Dr. Ishwar Tayal reveals that dead body of Sanjana @ Nanu was subjected to sexual assault. To the contrary, from the post-mortem report as well as the statement of Dr. Ishwar Tayal, PW10, it seems that first of all Sanjana @ Nanu was subjected to sexual assault and, thereafter, she was strangulated. It seems that to corroborate the DNA Profiling Report, the police has extracted the alleged confessional statement, which instead of strengthening the prosecution story has weakened the same. 31. Hon’ble Apex Court in the case of Vikramjit Singh alias Vicky v. State of Punjab reported in (2006) 12 SCC 306 , in paragraph nos. 15 and 16, has held as under : “15. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave, may be cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond reasonable doubt. 16. 16. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 , this Court laid down the law in the following terms : “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘ must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973 SCC (Cri) 1033, where the observations were made: ‘Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions.’ (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” It was further observed: (SCC pp. 194-95, paras 179-180) “179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the consistence of any court yet suspicion, however, great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. 180. It must be recalled that the well-established rule of criminal justice is that “fouler the crime higher the proof’. In the instant case, the life and liberty of a subject was at stake. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. 180. It must be recalled that the well-established rule of criminal justice is that “fouler the crime higher the proof’. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made.” 32. As per the dictum of Hon’ble Apex Court, the suspicion however grave may be, cannot be a substitute for proof. It is the duty of the prosecution to prove the case beyond reasonable doubt. 33. As discussed hereinbefore, at the risk of repetition, we would like to state that from the DNA profiling report the only conclusion which can be drawn is that accused was in contact with the body of Sanjana @ Nanu, but, in the present case, it could not be proved that the accused was in contact with the body of Sanjana @ Nanu before her death rather contrary is proved that the body of accused was in touch with the dead body of Sanjana @ Nanu after the incident has taken place, when dead body was being carried from the agricultural field to the house of PW1. Therefore, the probability that dead cells of the accused might have mixed with the vaginal wash/swab cannot be ruled out completely. 34. In view of the above, we are of the opinion that prosecution has failed to prove the case beyond reasonable doubt. Therefore, it would not be safe to convict the accused solely on the ground of grave suspicion of DNA profiling. 35. Consequently, appeal is allowed. Impugned judgment and order is hereby set aside. Appellant is acquitted from the charges levelled against him. 36. Reference stands answered accordingly. 37. Let the appellant be set at liberty forthwith, if not required in any other case. Copy of this judgment as well as Lower Court Record be sent back to the lower court for information and compliance.