JUDGMENT : Ahluwalia J. The victim (name withheld to protect her identity and hereinafter called as 'Victim'), a girl aged about twenty years, allegedly on 5th of February, 2008 at around 05:00 P.M. left her house for purchase of some articles from the bazar of Sarmathura. The victim was last seen going-on the motorcycle, with present appellant and one Banty. There was another motorcycle on which two other boys viz., Raju and Bahadur were riders and on third motorcycle two persons, namely Ramprakash and Ramdas were sitting. 2. Case of the prosecution, in nut-shell is that six accused and deceased/victim were going-on three motorcycles. Thereafter, the victim was not traceable. A search was carried towards forest of Village Gaindapura and on the boundary of the field of Angadram and Sitaram, dead-body of victim was found in the field of Sitaram. A scarf (dupatta) was found tied around her neck and a part of scarf (dupatta) was found inserted in the mouth of the deceased to gag her mouth. 3. Kedar Singh Meena, complainant/ father of the victim, not examined by the prosecution, presented written report (Exhibit-P/3), before Police leading to the registration of a formal First Information Report (Exhibit-P/4). It was recorded in the written-report (Exhibit-P/3) that from the body of deceased, a gold-chain and two-rings were missing. 4. In the written-report (Exhibit-P/3), Kedarsingh Meena, complainant/ father of victim, raised a suspicion, that his daughter has been murdered and the jewellery worn by her was taken away by the assailants. 5. It will be apposite for us to reproduce here true translation of the written-report (Exhibit-P/3). "To, The Station House Officer Saheb, Police Station, Sarmathura Sir, It is submitted that on 05.02.2008 at around 05:00 P.M. my daughter (name withheld to protect her identity) had gone to bazar of Sarmathura for purchase of some articles. She had not returned till evening. I and my family members searched for her in Sarmathura Town. Ramlakhan informed me that your daughter had accompanied Chhote s/o Shivsingh, Raju and Bahadur sons of Angad, by caste Meena, resident of Gaindapura and Banty, Ramdas and Ramprakash sons of Lalpati, by caste Meena, resident of Khargapura. They have taken her on motorcycle towards forest of Gaindapura. We searched for our daughter in Village Gaindapura and in the forest of Gaindapura. They have taken her on motorcycle towards forest of Gaindapura. We searched for our daughter in Village Gaindapura and in the forest of Gaindapura. The dead-body of my daughter was found in the field of Sitaram on the side of the common boundary wall (med) of the field of Angadram and Sitaram. My daughter was having an scarf (dupatta) around her neck and a part of scarf (dupatta) was also forcibly inserted in her mouth. A gold chain and two rings were found missing from body of my daughter. Aforesaid assailants, having committed murder, had taken away jewellery. The above said persons have murdered my daughter and thereafter, had thrown dead-body in the field. The dead-body is lying at the spot. I am submitting report. The legal action be taken. Sd/" 6. Investigating Officer - Mahendra Singh (PW-3), who was then posted as Sub Inspector, Police Station, Sarmathura, on receipt of information was entrusted with the investigation. He reached at the spot and prepared site-plan (Exhibit-P/5). He also prepared description note (Exhibit-P/6) of the dead-body. Vide memo Exhibit-P/7, he recovered wet soil from the spot. He also recovered from the spot vide memo Exhibit-P/8 collarless- jacket (jerkin). Vide memo Exhibit-P/9 in presence of Girraj Prasad (PW-5) and Dinesh Kumar (PW-6), Investigating Officer took into possession one pair of chappal, which was lying near the dead-body. He prepared Inquest/ Panchnama vide Exhibit-P/10, which was attested by Girraj Prasad (PW-5), Dinesh Kumar (PW- 6), Haribhagwan (PW-8) and Prithvi Singh (PW-11) respectively. He handed over dead-body to Kedarsingh Meena, complainant/ father of victim vide receipt memo Exhibit-P/11. Investigating Officer vide memo Exhibit-P/12 took five sealed packets handed over to him by the Medical Officer. These five packets were containing clothes worn by the deceased, two vaginal slides and vaginal swab. On the very next day of recovery of the dead-body i..e. on 07.02.2008 at around 02:15 A.M. Investigating Officer vide memo Exhibit-P.13 effected the arrest of present appellant. Investigating Officer vide Exhibit-P/4 on 07.02.2008 at 04:30 P.M. took into possession underwear worn by the accused. As per prosecution, on the said underwear, human semen was present. 7. On 09.02.2008 at 12:20 P.M. accused - Chhotey Lal suffered a disclosure statement, Exhibit-P/15, wherein he stated that he can identify the place where occurrence had taken place. Investigating Officer vide Exhibit-P/4 on 07.02.2008 at 04:30 P.M. took into possession underwear worn by the accused. As per prosecution, on the said underwear, human semen was present. 7. On 09.02.2008 at 12:20 P.M. accused - Chhotey Lal suffered a disclosure statement, Exhibit-P/15, wherein he stated that he can identify the place where occurrence had taken place. Vide memo Exhibit-P/16, accused had accompanied Police party to the place of occurrence and got the place identified in presence of Girraj Prasad (PW-5) and Dinesh Kumar (PW-6) respectively. Investigating Officer Mahendra Singh (PW- 3) prepared site-plan of the spot, which was got identified by accused by preparing site-plan Exhibit-P/16. 8. On 12.02.2008 accused - Chhotey Lal suffered another disclosure statement and stated that he can get gold chain and two rings recovered from the Almirah of his house. The said disclosure (Exhibit-P/17) was found to be false. Therefore, on the very next day i.e. on 13.02.2008, accused suffered another disclosure statement (Exhibit-P/18), wherein he stated that he had buried a gold chain and two rings in the courtyard of his house. Vide memo Exhibit-P/19, accused got recovered gold chain and two rings in presence of Batohi (PW-15) and Sanjay, not examined. 9. On 10.02.2008 vide memo Exhibit-P/21 Investigating Officer Mahendra Singh (PW-3) took into possession sample of the semen, saliva and blood of the accused. The semen, saliva and blood were taken in a vial in presence of Constable - Omveer (PW-9) and Constable - Manoj Kumar (PW-10). 10. It is a case of circumstantial evidence. 11. Suffice it to say, prosecution agency to prove incriminating circumstances against the accused examined, in all fifteen-witnesses. 12. Thereafter, prosecution closed its evidence. 13. The statement of the accused was recorded under Section 313 Cr.P.C. In the said statement, all incriminating circumstances were put to accused, he denied the same and pleaded false implication. 14. After appreciating the evidence, the Court of Special Judge (Dacoity Affected Area), Dholpur, vide its impugned judgment dated 08.01.2010, convicted the appellant for offences punishalbe under Section 302, 376 (2) (g) and 379 of Indian Penal Code. 15. Having convicted the appellant for the above said offences, ld. trial Court, vide a separate order of even date, sentenced the appellant as under :- "For offence under Section 302 I.P.C. appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-. 15. Having convicted the appellant for the above said offences, ld. trial Court, vide a separate order of even date, sentenced the appellant as under :- "For offence under Section 302 I.P.C. appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-. In default of payment of fine to further undergo six months simple imprisonment. For offence under Section 376 (2) (g) I.P.C. appellant was sentenced to undergo ten year's rigorous imprisonment and to pay a fine of Rs. 3000/-. In default of payment of fine to further undergo three months simple imprisonment. For offence under Section 379 I.P.C. appellant was sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo one month simple imprisonment. (All sentences were ordered to run concurrently)." 16. Aggrieved against the conviction and sentence, the appellant has preferred instant appeal under Section 374 of the Code of Criminal Procedure, 1973. 17. We may note here that Investigating Agency had sent two persons for the trial, one present appellant and another one Banty. Co-accused - Bunty was found to be delinquent juvenile in conflict with law and his trial was entrusted to concerned Juvenile Justice Board. 18. During course of the trial, present appellant had also raised a plea that he is a juvenile and, thus, he be tried by the Court of Juvenile Justice Board. The said plea was turned down by the trial Court. 19. The matter came in revision before this Court. Again issue regarding determination of juvenility was remitted to the trial Court and trial Court again came to a conclusion that appellant is more than eighteen-years of age. Thereafter, the trial Court commenced the trial. 20. The said decision of the trial Court was also assailed by the accused-appellant by filing a petition i.e. S.B. Criminal Revision Petition No.1418/2008 before this Court. In the said revision, no stay was granted and same was ordered to be heard along with the present appeal. 21. The circumstances, which prosecution relied as incriminating circumstances, have emerged in the testimony of Mahendra Singh (PW-3), Investigating Officer, gist of which, we have already reproduced herein above. 22. In the said revision, no stay was granted and same was ordered to be heard along with the present appeal. 21. The circumstances, which prosecution relied as incriminating circumstances, have emerged in the testimony of Mahendra Singh (PW-3), Investigating Officer, gist of which, we have already reproduced herein above. 22. From the prosecution case, following circumstances have been pressed into service to secure conviction of the appellant :- A. That victim, soon before her death, was last seen with accused by Ramlakhan (PW-14), maternal uncle of victim. B. That a gold chain and two rings of victim vide memo Exhibit-P/19 were recovered from the accused in pursuance of disclosure (Exhibit-P/18) made by him. C. That identification of the spot where crime was committed in pursuance of disclosure statement (Exhibit-P/15) was made by the accused and memo Ex.- P/16 regarding identification of spot was prepared. D. That presence of semen on the underwear which was recovered vide memo Exhibit-P/14 and presence of semen on the private parts of the body of deceased/ victim." 23. The case of the prosecution is that two vaginal slide and vaginal swab were taken into possession by Investigating Officer vide memo Exhibit-P/12. The report of State Forensic Science Laboratory, Rajasthan, Jaipur and the report of Serological Examination were proved on record vide Exhibit-P/34 and Exhibit-P/35 respectively. 24. We shall deal with all these four incriminating circumstances to analysis, whether these circumstances can be relied against the accused or not. A. Evidence of last seen : 25. In the present case, written-report (Exhibit-P/3) was lodged by Kedarsingh Meena, complainant/father of victim. In written-report (Exhibit-P/3), it was stated he was informed by Ramlakhan (PW-14), brother of his wife that he had seen the accused and victim going-on motorcycle towards Village Gaindapura. 26. Curiously enough, Kedarsingh Meena, complainant/ father of victim, has not stepped into witness-box. Therefore, this Court is deprived to take cognizance of the fact that information was relayed to him by Ramlakhan (PW-14) at what time, whether it was at the earliest juncture, or later, we are kept guessing. 27. In the Court, Ramlakhan, appeared as PW-14. This witness, in the Court, stated that his statement was recorded by the Police, after eight/ten days. 27. In the Court, Ramlakhan, appeared as PW-14. This witness, in the Court, stated that his statement was recorded by the Police, after eight/ten days. The exact words stated by this witness are as under :- " esjk c;ku iqfyl us vkB fnu ckn fy;k FkkA bu vkB nl fnuksa esa eSa fQj dsnkj ds ?kj ugha x;kA " 28. The dead-body, in the present case, was recovered on the very same day i.e. on 05.02.2008 in the late night. The written-report (Exhibit-P/3) was presented on the intervening night of 5th & 6th of February, 2008 at 12:15 A.M. The case was registered at Police Station, Sarmathura, Dholpur also at the same time. The special report reached at Illaqa Magistrate on 07.02.2008 at 11:00 A.M. The present appellant - Chhotey Lal, purportedly, vide memo Exhibit-P/13 was arrested on the intervening night of 6th & 7th of February, 2008 at 02:15 A.M. Thus, arrest of the accused was affected before reaching of the special report to the Illaqa Magistrate. 29. In these circumstances, non-examination of Kedarsingh Meena, complainant/ father of the victim, assume importance, especially when Ramlakhan (PW-14), witness of last seen, has stated that his statement was recorded, after eight/ ten days by the Police. 30. A perusal of written-report (Exhibit-P/3) reveals that about six persons were named by widening the net and roving investigation was kept pending to name the accused. Lateron, Ramlakhan (PW-14) stated that deceased was sitting on motorcycle on which Banty and present appellant were riders. 31. Thus, in the present case, evidence of last seen cannot be taken as a sole incriminating circumstance to convict the present appellant, especially when other pieces of other circumstantial evidence relied by the prosecution are of doubtful nature. B. Evidence of recovery of gold chain and two gold rings of deceased from the accused-appellant : 32. The case of the prosecution is that accused who had committed alleged offence had removed the gold chain and two rings from the body of the deceased. 33. However, a perusal of panchnama / inquest (ExhibitP/10) reveals that deceased was wearing two coils (kundal) in the ears and gold bloom (pendle) in the nose. 34. Mr. Arvind Kumar Gupta, very ably assisted by Mrs. 33. However, a perusal of panchnama / inquest (ExhibitP/10) reveals that deceased was wearing two coils (kundal) in the ears and gold bloom (pendle) in the nose. 34. Mr. Arvind Kumar Gupta, very ably assisted by Mrs. Chandrakala Sahu, learned counsel appearing for the accused appellant, has rightly contended that the accused who had removed gold chain and two gold rings, ought to have also removed two earrings and gold bloom in the nature of flower worn in the nose of the deceased. 35. Be that as it may, prosecution has to prove that the ornaments, purportedly, recovered at the instance of accused are of the deceased by carrying identification proceedings. 36. In the present case, Investigating Officer - Mahendra Singh (PW-3), in the Court, has stated that he had carried no identification proceedings and had handed over the articles to the father of the deceased. " eSaus cjken'kqnk pSu o vxwaBh dh f'kuk[rxh ugha djok;h D;ksafd eqLrxhl lkFk FkkA eqLrxhl eq>s cjkenxhLFky ij fey x;k FkkA " 37. Furthermore, the gold chain, so recovered and the two rings were not produced before the Court. Investigating Officer – Mahendra Singh (PW-3) further stated in the Court that " ;g lgh gS fd cjken'kqnk tsojkr vkt esjs lkeus ugha gSA " 38. Thus, to secure conviction of the appellant, it is incumbent for the prosecution to prove that the gold chain and two rings recovered from the appellant were of the deceased. Until this onus is discharged by the prosecution, we cannot connect the accused with the alleged crime. Therefore, we cannot hold that articles, gold chain and two gold rings recovered from the accused were same which accused allegedly had removed from the person of the deceased. C. Identification of spot in pursuance of disclosure made by accused : 39. It is a case of the prosecution that the appellant suffered disclosure (Exhibit-P/15) and disclosed the place of occurrence to the Investigating Officer. It is further case of the prosecution that the appellant, in presence of Girraj Prasad (PW-5) and Dinesh Kumar (PW-6) got the spot identified where offence was committed. The spot got identified by the accused is the same place from where dead-body was recovered. 40. In the present case, Girraj Prasad (PW-5) and Dinesh Kumar (PW-6) both have turned hostile to the prosecution. 41. The spot got identified by the accused is the same place from where dead-body was recovered. 40. In the present case, Girraj Prasad (PW-5) and Dinesh Kumar (PW-6) both have turned hostile to the prosecution. 41. Girraj Prasad (PW-5) is totally silent about the identification of the spot vide memo Exhibit-P/6 prepared in his presence. This witness stated that his signatures were obtained at the Police Station. This witness was declared hostile and was cross-examined by the Public Prosecutor. Lastly, this witness stated that he was made to sign the papers in the Police Station. 42. Dinesh Kumar (PW-6) stated that he was made to sign the papers in the hospital. In cross-examination, this witness stated that Police, after completion of proceedings brought the papers to the hospital, where he signed the same. Later, in cross-examination made by defence Counsel, this witness stated that he had signed the papers in the Police Station. 43. We have seen site-plan (Exhibit-P/5) regarding recovery of dead-body and Exhibit-P/16 regarding identification of the spot. Both Exhibits show the place of occurrence to be boundary (med) in the field of Sitaram. 44. We cannot rely upon disclosure (Exhibit-P/15) and identification of spot (Exhibit-P/16), as the dead-body was already recovered from that spot by Police on the intervening night of 5th & 6th of February, 2008. Therefore, disclosure made by accused (Exhibit-P/15) on 09.02.2008 losses all significance because there was no disclosure of any new fact, which was not in knowledge of the Police. Therefore, we cannot also take this fact into consideration. Re-disclosure of the fact already in knowledge of Police is inadmissible in evidence. D. Recovery of underwear from the accused. 45. Investigating Agency vide memo Exhibit-P/14, in presence of Constable – Omveer (PW-9) and Constable – Manoj Kumar (PW-10) had recovered underwear of the accused. The said underwear was allegedly having stains of semen. Investigating Agency further vide memo Exhibit-P/21, in presence of the witnesses had taken samples of semen, blood and saliva of the accused. 46. It is further case of the Investigating Agency that Medical Officer vide memo Exhibit-P/12 had handed over two vaginal slide and vaginal swab to Investigating Officer. Thus, all articles were sent to the State Forensic Science Laboratory Rajasthan, Jaipur. 47. 46. It is further case of the Investigating Agency that Medical Officer vide memo Exhibit-P/12 had handed over two vaginal slide and vaginal swab to Investigating Officer. Thus, all articles were sent to the State Forensic Science Laboratory Rajasthan, Jaipur. 47. A perusal of Exhibit-P/34, report, prepared by the State Forensic Science Laboratory, Rajasthan, Jaipur, reveals that there was presence of human semen on underwear of accused, vaginal slide and vaginal swab. These articles were sent to the Serological Division for determination of the blood group. As per report of Serologist (Exhibit-P/35), no grouping of blood was possible as semen on the underwear of the deceased, accused and vaginal slide and vaginal swab were inconclusive. 48. We cannot ignore the fact that the appellant is young man. His underwear may contain his semen, but prosecution has failed to connect semen found from the private parts of the deceased with the semen found on the underwear of the accused as Serologist could not determine blood group as same was inconclusive. 49. There is an another angle that so far offence of rape is concerned, Dr. V.N.S. Tomar, who was examined as C.W. 4 at Page 79 of the paper book, has stated that he had carried importancy test and came to a conclusion that the appellant was not capable of performing sex. The exact words stated by this witness are as under :- " ,oa ijh{k.k ds nkSjku ;g Hkh ik;k fd og SEX djus ds dkfcy ugha gSA " 50. By holding above discussion, we have come to a conclusion that prosecution has failed to prove all incriminating circumstances to connect the appellant with the alleged offence. 51. It is true that deceased, as per Dr. Ashfaq Khanjada (PW-2), had died, as a result of Asphyxia, due to strangulation. It is also true that abrasion and bruises were present on the person of deceased. But the crucial question will remain, whether on the basis of circumstances led by the prosecution, we can infer that the appellant had committed alleged offence or not. 52. We may note here that Girraj Prasad (PW-5), Dinesh Kumar (PW-6), Prithvi Singh (PW-11) and Roshan (PW-12) all public witnesses examined by the prosecution, except Ramlakhan (PW-14), who is maternal uncle of deceased and Batohi (PW-15), who is nephew of the father of victim, have turned hostile to the prosecution. 53. 52. We may note here that Girraj Prasad (PW-5), Dinesh Kumar (PW-6), Prithvi Singh (PW-11) and Roshan (PW-12) all public witnesses examined by the prosecution, except Ramlakhan (PW-14), who is maternal uncle of deceased and Batohi (PW-15), who is nephew of the father of victim, have turned hostile to the prosecution. 53. Batohi (PW-15) has also stated that Kedarsingh Meena, complainant/ father of victim is his maternal uncle. Thus, except relatives of the victim, all other public witnesses have not supported the prosecution case. Merely on the testimony of the witnesses, who had participated in the investigation, we cannot sustain the conviction of the present appellant. 54. Thus, taking totality of circumstances, we accept present appeal, by setting aside the judgment of conviction and order of sentence passed by the trial Court and acquit the appellant of the charges. 55. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- [Rupees Twenty Thousand Only] 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.