JUDGMENT : Chandra Bhushan Bajpai, J. 1. Being aggrieved by the judgment and order dated 21-8-2003 passed by the 1st Additional Sessions Judge, Rajnandgaon (CG) in S.T. No. 75/2002, whereby and whereunder the learned Additional Sessions Judge acquitted the private respondent-Uday Ram of the offence under Sections 302 and 376(1) of the Indian Penal Code, 1860 (in short 'the IPC') by affording benefit of doubt. The applicant is the uncle of the deceased (name not mentioned, as per charge-sheet charge of rape also levelled against respondent No. 2-Uday Ram) who filed the instant criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short 'the Code'). The instant criminal revision has been filed on the ground that the judgment of acquittal passed by the trial Court is patently erroneous, contrary to the evidence and bad in law. The trial Court is misconceived and wrong in acquitting respondent No. 2. The trial Court has failed to consider the evidence in its proper perspective and led its opinion that the contradiction, omission is material. The trial Court erred in holding that Section 26 of the Evidence Act is attracted in the matter. The trial Court erred in holding that the extra-judicial confession made by accused/respondent No. 2-Uday Ram before the prosecution witnesses is inadmissible. The trial Court extended benefit of doubt to accused/ respondent No. 2 without there being any foundation of law. The accused/respondent No. 2 was not in the surveillance of police while making confession of crime and the confession is made in isolation to the villagers who duly supported the same in the trial. Further, it is on the ground that the finding of the trial Court is erroneous that the seizure was not proved and also on the refusal of accused to give sample of semen, the benefit should not go to the favour of accused/respondent No. 2. Hence, it is prayed that the criminal revision may be allowed, the judgment passed by the trial Court may be set aside and suitable orders may be passed for retrial of the accused/respondent No. 2 before the trial Court. 2. Facts of case in brief are that on 13th February, 2002 at about 9.00 a.m., Sanjay Kumar (P.W. 6) recorded merg vide Ex. 2. Facts of case in brief are that on 13th February, 2002 at about 9.00 a.m., Sanjay Kumar (P.W. 6) recorded merg vide Ex. P/10, in which he stated that the deceased (name not mentioned) aged about 16 years, at about 8.30 p.m. on 12th February, 2002 had complained pain in stomach and she left her parents residence to answer the call of nature. When she did not return, the family members and the villagers searched her, but she was not traceable in the night. Again in the morning when they were searching the deceased, they noticed her in hanging condition on the tree and thereafter, the matter was reported to the Police. Lalbagh Police have prepared inquest vide Ex. P/2 on 13th February, 2002 and sent the body for autopsy. Dr. Anil Mahakalkar (P.W. 8) conducted autopsy on 13th February, 2002 vide report Ex. P/12 and noticed the following multiple injuries: i. Contusion over left side cheek 4" x 2 1/2" irregular shape; ii. Contusion over nose just below bridge of nose 2" x 1" reddish brown in colour; iii. Contusion over chin left sided 2 1/2" x 1"; iv. Contusion over left maxillary region 1" x 1"; v. Abrasion right arm lateral aspect 1" x 1/2" clotted blood present over it; vi. Abrasion 1 1/2 x 1/2" semicircular shape and posteriorly oblique border on right arm just below injury No. 5; vii. Abrasion right elbow posterior aspect 1" x 1/2" interrupted; viii. Abrasion left elbow posterior aspect 1/2' x 1/2" interrupted; ix. Abrasion left foot anterior aspect 1" x 1" clotted blood present over the surrounding areas; x. Abrasion right ankle 1 x 1/2"; xi. Abrasion upper 1/3 leg left posterior aspect and clotted blood over it; xii. Abrasion left shoulder 1 x 1/2 posterior aspect; xiii. Abrasion behind right pinna (ear) 1/2 x 1/2". No other marks of external injury all over the body at the time of autopsy. The Doctor opined that the cause of death was asphyxia due to hanging and the injuries were ante-mortem in nature. 3. On 22-2-2002 Police made a query regarding injuries noticed over the body of the deceased and also regarding the circumstances Doctor Anil Mahakalkar (P.W. 8) answered the query vide Ex. P/13 on 22-2-2002. FIR was registered under Sections 376, 302 and 201, IPC against unknown person after investigation vide Ex. P/28. 3. On 22-2-2002 Police made a query regarding injuries noticed over the body of the deceased and also regarding the circumstances Doctor Anil Mahakalkar (P.W. 8) answered the query vide Ex. P/13 on 22-2-2002. FIR was registered under Sections 376, 302 and 201, IPC against unknown person after investigation vide Ex. P/28. A slide was prepared during autopsy and the clothes of the deceased were sent for chemical analysis. The Forensic Science Laboratory, Raipur vide Ex. P/17 confirmed the blood stains over the clothes of the deceased and also over the slide prepared. The FSL further noticed stains of semen and human spermatozoa on the undergarment of the deceased and also on the slide prepared from the swab taken during autopsy. On 23rd March, 2002, during investigation the accused/respondent No. 2 gave memorandum statement Ex. P/3, on the basis of which, Police seized a pant and shirt of the accused vide seizure memo Ex. P/4. His underwear was seized vide Ex. P/5. A piece of chain was recovered from the accused/respondent No. 2 and rest of the chain was recovered from the body of the deceased. On being examined, the concerned, jeweller opined that all the pieces are of the same chain. The accused was arrested and thereafter he was sent for medical examination. Dr. K.K. Tamrakar (P.W. 7) noticed an old scar of about 15 days below left eye and gave his report vide Ex. P/11. 4. The police recorded statements of the witnesses under Section 161, Code. After completion of investigation, charge-sheet was filed before the concerned Magistrate, who, in turn, committed the case for trial. The learned Additional Sessions Judge received the case on transfer and conducted trial. 5. The accused/respondent No. 2 was charged for the offence under Sections 302, 376(1), IPC. In order to prove the guilt of the accused/respondent No. 2, prosecution examined as many as 20 witnesses. The statement of accused/respondent No. 2 was recorded under Section 313 of Code, in which, he denied the circumstances appearing against him, leaded innocence and false implication in the crime in question. 6. The Court below after hearing the respective parties and considering the material available on record held that the prosecution failed to prove its case beyond all reasonable doubts and hence, acquitted the accused/respondent No. 2 by affording benefit of doubt. Against the said judgment, the applicant has preferred the instant criminal revision. 7. 6. The Court below after hearing the respective parties and considering the material available on record held that the prosecution failed to prove its case beyond all reasonable doubts and hence, acquitted the accused/respondent No. 2 by affording benefit of doubt. Against the said judgment, the applicant has preferred the instant criminal revision. 7. We have heard learned counsel for the parties and perused the material on record. 8. Learned counsel for the applicant submits as under: (i) though the prosecution has adduced evidence regarding extra-judicial confession in which the accused/respondent No. 2 admitted his guilt of committing rape and thereafter killing the deceased, concealing the evidence of hanging the deceased on a tree, but the trial Court has ignored the said piece of evidence which was duly proved by the prosecution; (ii) as per report of the concerned, jeweller, the piece of chain recovered from the accused/respondent No. 2 was the piece of remaining chain recovered from the body of the deceased and as the accused/respondent No. 2 failed to offer any explanation as to how he was in possession of that piece of chain, the circumstances are indicative that the accused/respondent No. 2 was the only author of the crime; (iii) initially the deceased was subjected to sexual intercourse and thereafter she became pregnant and the accused/respondent No. 2 was not ready to take the responsibility of the said pregnancy, during arguments, the accused/respondent No. 2 killed the deceased by throttling and thereafter hanged the dead body on a tree to show that the deceased had committed suicide; (iv) at the time of cremation the accused/respondent No. 2 was available in the village, but he was not present in the cremation rituals. He had an injury over his face unexplained and other circumstances by which the prosecution succeeded to prove that it was the accused/respondent No. 2 who committed forcible sexual intercourse against the wishes of the deceased and thereafter killed her. The judgment of acquittal passed by the Court below is perverse and erroneous, hence, it is prayed that it may be set aside and the Court below may be directed to re-hear the matter and pass the judgment afresh. 9. Learned counsel for the State/respondent No. 1 duly assisted the Court. 10. The judgment of acquittal passed by the Court below is perverse and erroneous, hence, it is prayed that it may be set aside and the Court below may be directed to re-hear the matter and pass the judgment afresh. 9. Learned counsel for the State/respondent No. 1 duly assisted the Court. 10. Learned counsel for the accused/respondent No. 2 duly supported the judgment passed by the trial Court and would submit that the judgment of the trial Court is well founded. As the prosecution has failed to prove the circumstance of extra-judicial confession before the witnesses beyond all reasonable doubt, provisions of Sections 25 and 26 of the Evidence Act, 1872 are attracted which provides that any confession made before the police or in the presence of police is not admissible in evidence. Hence, the trial Court has rightly disbelieved the evidence of extra-judicial confession. He further argued that it is also not proved beyond all reasonable doubts that the piece of chain which was recovered from the full pant of the accused; merely on this circumstance alone, the accused/respondent No. 2 cannot be convicted. He argued that the cause of death was not proved as homicidal by the Autopsy Surgeon and also in the query report Ex. P/13. Even if it is assumed that the death was homicidal, it is required to prove that it is the accused/respondent No. 2 who killed the deceased. Hence, it is submitted that the judgment passed by the trial Court does not require interference and the instant criminal revision may be dismissed. 11. To appreciate the arguments advanced on behalf of the parties, we have perused the evidence adduced during the trial. 12. As per settled law, if there is admissible evidence wrongly brushed aside/or where admissible evidence has been overlooked by the trial Court and the order is passed by considering irrelevant evidence, the High Court can pass orders in such cases for re-hearing under the revisional jurisdiction. High Court can call for the record to satisfy itself as to correctness, legality or propriety of any finding though it is expressly barred to convert a finding of acquittal into that of conviction, but the High Court can direct for re-hearing of the matter by the Court below if justified and while appreciating the High Court should confine itself only to admissibility of evidence and should not go further and appraise the evidence. If the material evidence has been overlooked by the trial Court then the revisional jurisdiction of the High Court may be invoked. 13. Bholaram (P.W. 1) is distant relative of the deceased and the accused/respondent No. 2. He was present during the inquest, Ex. P/2 and also saw the dead body in a hanging condition. As per this witness, at para 5, the accused confessed his guilt before police in front of villagers regarding the sexual intercourse with the deceased, thereafter dispute regarding pregnancy of the deceased and killing the deceased and ultimately he confessed that he had hanged the body in a berry tree. He is also a witness for memorandum statement Ex. P/3, seizure memo Ex. P/4 by which police had seized shirt, pant and also one chain from the pocket. He is also a witness to seizure of underwear from the accused/respondent No. 2, arrest memo (Ex.-P/6). In para 27 of his cross-examination, this witness admitted that he himself enquired by laying his hand in the pocket of pant of the accused and he had not noticed any article in the said pocket and when he informed this fact to police, the police people himself put his hand in the said full pant and then informed him that there is something in the pocket, again took search, then only, he found piece of chain. Naradram (P.W. 2), relative of the deceased, deposed that he was informed by her niece Riteshwari that deceased went to answer the call of nature but for more than an hour she had not come back, thereafter, he along with other went to search the deceased, but the deceased was not traceable. Next day morning when along with other villagers he went for search, he saw body of the deceased in hanging condition on berry tree. He is also a witness of inquest Ex. P/2. He turned hostile and in para 7 he had not said anything regarding the alleged extra-judicial confession by the accused/respondent No. 2. Also he had not supported his police statement Ex. P/8. Indrakumar (P.W. 3) is a hearsay witness who also saw the body of the deceased in a hanging condition. As per this witness, at para 4, the accused was in custody of police for about 8 to 10 days. Also he had not supported his police statement Ex. P/8. Indrakumar (P.W. 3) is a hearsay witness who also saw the body of the deceased in a hanging condition. As per this witness, at para 4, the accused was in custody of police for about 8 to 10 days. Sundar Lal (P.W. 4), the present applicant/petitioner, also saw the body of the deceased hanging on the berry tree, a piece of broken chain lying over the ground and a piece was found in the tied hair of the deceased. At para 3 of the examination, in addition, he stated that police summoned the accused after three days of recovery of the dead body, in his house and he was interrogated regarding the incident. At part 7 of the examination-in-chief he stated that after police left his house, they asked the accused and the accused admitted the guilt. He further stated that meanwhile police people came and removed them from the interrogation place. At para 8, this witness further stated that before coming of police, the accused admitted the guilt. At para 6, this witness very specifically deposed that he, any of his relatives or any of the villagers not asked anything from the accused in the absence of police. The witness turned hostile and at para 25, the witness further deposed that on 23-3-2002 (the day memorandum of the accused/respondent No. 2, Ex. P/3, was recorded and a piece of chain, shirt, pant were seized vide seizure memo (Ex.-P/4), police came in the village along with the accused and he asked the concerned Constable that he want to interrogate the accused. Thereafter, the said Constable was standing at a distance of about 20 feet and there only he had asked the accused regarding the guilt. Yograi (P.W. 5) also saw the body in hanging condition. He is also a witness for seizure memo Ex. P/9 by which police seized certain articles. He was also present during the inquest Ex. P/2. At para 5, he deposed that the accused confessed before him that on account of illicit relation, he had killed the deceased by throttling her neck. He is also a witness for seizure memo Ex. P/9 by which police seized certain articles. He was also present during the inquest Ex. P/2. At para 5, he deposed that the accused confessed before him that on account of illicit relation, he had killed the deceased by throttling her neck. In para 6 of the cross-examination, this witness specifically stated that the said confession made by the accused was in the presence of police and on the day he was taken by police in the village and prior to 8 to 10 days the accused was detained in the police station. Sanjay Kumar (P.W. 6) is lodger of merg Ex. P/10. Doctor K.K. Tamrakar (P.W. 7) examined the accused/respondent No. 2 and noticed one scar over the face below left eye of about 15 days old. He gave his report Ex. P/11. Doctor Anil Mahakalkar (P.W. 8) conducted autopsy over the dead body of the deceased and gave his report Ex. P/12 and found following multiple injuries:- (i) Contusion over left side cheek 4" x 2 1/2" irregular shape; (ii) Contusion over nose just below bridge of nose 2" x 1" reddish brown in colour; (iii) Contusion over chin left sided 2 1/2" x 1"; (iv) Contusion over left maxillary region 1" x 1"; (v) Abrasion right arm lateral aspect 1" x 1/2" clotted blood present over it; (vi) Abrasion 1 1/2" x 1/2" semicircular shape and posteriorly oblique border on right arm just below injury No. 5; (vii) Abrasion right elbow posterior aspect 1" x 1/2" interrupted; (viii) Abrasion left elbow posterior aspect 1/2" x 1/2" interrupted; (ix) Abrasion left foot anterior aspect 1" x 1" clotted blood present over the surrounding areas; (x) Abrasion right ankle 1 x 1/2"; (xi) Abrasion upper 1/3 leg left posterior aspect and clotted blood over it; (xii) Abrasion left shoulder 1 x 1/2 posterior aspect; (xiii) Abrasion behind right pinna (ear) 1/2 x 1/2". No other marks of external injury all over the body at the time of autopsy. The Doctor opined that the cause of death was asphyxia due to hanging and the injuries were ante-mortem in nature. He had also answered the query vide report Ex. P/13 and Ex. P/14. He also gave his opinion vide Ex. P/15 and Ex. P/16. No other marks of external injury all over the body at the time of autopsy. The Doctor opined that the cause of death was asphyxia due to hanging and the injuries were ante-mortem in nature. He had also answered the query vide report Ex. P/13 and Ex. P/14. He also gave his opinion vide Ex. P/15 and Ex. P/16. He opined that to ascertain whether the death was homicidal or suicidal, opinion of the forensic expert may be obtained, Doctor V.B. Agrawal (P.W. 9) examined the accused/respondent No. 2 and opined that he was capable for sexual intercourse. He gave his report Ex. P/18. Koushalyabai (P.W. 10) stated nothing specific Riteshwari (P.W. 11), cousin of the deceased deposed that when the deceased not returned back who went to answer the call of nature, she along with other family members and villagers made search and they were unsuccessful. In addition to this, this witness deposed in para 3 that the accused confessed in presence of five villagers that he had killed the deceased as she was carrying pregnancy of five months and hanged her. In the cross-examination at para 21 when this witness was confronted with her statement recorded under Section 161 of the Code. Ex. D/4, this witness has not said anything regarding the extra-judicial confession in presence of five villagers. With this, this witness made improvement during the examination before Court. B.P. Maithil (P.W. 12), Senior Scientific Officer, gave his report Ex. P/19. Jambai (P.W. 13) turned hostile and not supported her police statement Ex. P/20 and not stated anything against the accused. Kavita (P.W. 14) not stated anything specific. Laxmikant Sen (P.W. 15), ADI, did the initial investigation. Champalal Soni (P.W. 16) is a jeweller who examined three piece of the silver chain and after physical examination, he opined that all the three pieces of chain belong to one chain. Mukundlal Sahu (P.W. 17) is the hearsay witness and he also saw the dead body, before him police seized certain articles from the spot vide seizure memo Ex. P/9. At para 15 he had deposed that the accused was in custody of police and was kept in the village school and at verandah of the said school he asked the accused and the accused confessed the guilt. P/9. At para 15 he had deposed that the accused was in custody of police and was kept in the village school and at verandah of the said school he asked the accused and the accused confessed the guilt. At para 28, he clarified and stated that when he asked question to the accused, police people was standing near about 10 to 15 feet. In para 29, he also deposed that when he enquired from the accused, about 1000 to 1500 people were assembled in the school ground and the accused was taken by 4-5 police persons and they were present with them. In his statement recorded under Section 161 of the Code, Ex. D/5, it is mentioned that before villagers, police enquired with the accused and there only accused confessed regarding the incident. This witness had improved court statement; for this questions were asked in para 31 of his cross-examination Confession of the accused/respondent No. 2 before this witness is improvement of his statement. Doctor D.K. Satpathy (P.W. 18), Director, Medico legal Institute, Bhopal, after perusal of the inquest, merg, opinion of doctor, inspection report, FSL report and other material, gave his report Ex. P/22. At para 1, sub-para (11), he had opined that possibility of suicide was negative; in sub-para (14) he further opined that the death was homicidal in nature, hanging along with rape, even then other circumstantial evidence has to be taken into consideration. Ku. Yesheshwari Yerewar (P.W.19), Sl. duly headed the part of investigation. P.S. Maravi (P.W. 20), Inspector, is the Investigating Officer, he duly supported the case of prosecution. 14. Sections 25 and 26 of the Indian Evidence Act, 1872 are relevant for the present case which read as under:- "25. Confession to police officer not to be proved.- No confession made to a police officer, shall be proved as against a person accused of any offence. 26. Confession by accused while in custody of police not to be proved against him.- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person." 15. Close scrutiny of the evidence makes it clear that there is no eye-witness. There is no witness of last seen theory. Incriminating circumstance in the charge-sheet and the evidence during the trial was the extra-judicial confession. Close scrutiny of the evidence makes it clear that there is no eye-witness. There is no witness of last seen theory. Incriminating circumstance in the charge-sheet and the evidence during the trial was the extra-judicial confession. Looking to the above facts which surfaced during examination-in-chief and cross-examination of different prosecution witnesses, it appears that while in custody of police the said confession was made by accused/respondent No. 2. As per settled law, any confession to police officer is not to be proved and any confession by accused while in custody of police is not to be proved against him. From perusal of the entire evidence, it appears that all the alleged confession were made either to police or while in custody of police. As per settled law, the trial Court rightly held that the said confession cannot be held admissible to convict the accused/respondent No. 2. So far as the other circumstance, i.e., recovery of piece of chain from the pocket of the accused/respondent No. 2 is concerned, Bholaram (P.W. 1) in his cross-examination, para 27, deposed that initially when he had taken the search of the pocket of the accused he had not noticed any article in the said pocket, thereafter, police people searched the said pocket and said that there is something in the pocket, with this, when he took search for the second time he noticed a piece of chain. The other panch witness Keshav was not examined by the prosecution. With this, seizure memo Ex. P/4 and the recovery of said piece of chain from the pocket of the accused/respondent No. 2 cannot be held to be proved beyond all probable doubt. Even apart, this circumstance alone cannot lead the prosecution's case to prove the guilt. 16. So far as medical evidence is concerned, Doctor Anil Mahakalkar (P.W. 8) opined that the death was due to asphyxia due to hanging, but contrary to this fact, the witnesses examined by the prosecution had deposed before the Court that as per extra-judicial confession, accused killed the deceased by throttling and thereafter she was hanged. Thus, medical report also does not support the alleged confession. As the death was due to asphyxia due to hanging, it was not a case of throttling. Thus, medical report also does not support the alleged confession. As the death was due to asphyxia due to hanging, it was not a case of throttling. One more circumstance to note is that if witnesses of the alleged extra-judicial confession had deposed that as per confession of the accused, deceased was carrying 5 months pregnancy and she was killed when the accused denied to take the responsibility and other facts, but in the post-mortem report Ex. P/12 the Doctor not noticed regarding pregnancy of any duration; with this also, as the deceased was not noticed pregnant by the autopsy surgeon, this is an additional circumstance to falsify the alleged confession made by the accused before the witnesses. Report of FSL, Raipur, Ex.-P/17 speaks about presence of blood over articles underwear Al, Shamij A2 and slide B of the deceased, further, it confirms presence of semen stains and human spermatozoa in underwear A1 and slide B of the deceased. On the basis of this report, it can only be held that prior to the incident the deceased was subjected to intercourse. This report against does not connect the accused/respondent No. 2 with the offence. Barring the above, there was no other circumstance for consideration of the Court below so as to connect the accused/respondent No. 2 with the crime. It is settled legal position that generally order of acquittal shall not be interfered with because presumption of innocence of accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on evidence adduced in case, one pointing to guilt of accused and other to his innocence, view which is favourable to accused should be adopted. The paramount consideration of Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice that may arise from acquittal of guilty is no less than from conviction of an innocent. 17. In the present case, the death was homicidal or suicidal was not clearly opined by the autopsy surgeon. Assuming the death is homicidal, even then, to connect the accused/ respondent No. 2 with the crime, prosecution had to prove that it is the accused/ respondent No. 2 who had committed the said murder. 17. In the present case, the death was homicidal or suicidal was not clearly opined by the autopsy surgeon. Assuming the death is homicidal, even then, to connect the accused/ respondent No. 2 with the crime, prosecution had to prove that it is the accused/ respondent No. 2 who had committed the said murder. But, in the present case, the prosecution utterly failed to prove involvement of the accused/respondent No. 2 for murder of the deceased through legally admissible evidence. 18. Scope with criminal revision is limited in nature. This Court has to examine whether any incorrectness, impropriety or illegality committed by the Court below while passing the order of acquittal in favour of the accused/respondent No. 2 by affording benefit of doubt. In the present case, no confession before police or while the accused is in custody of police is to be proved and such confession cannot be used against the accused/ respondent No. 2 and also there is no any confession by the accused/respondent No. 2 before any other villager independently, every witness of alleged extra-judicial confession either improved this fact from his statement recorded under Section 161 of the Code or admitted the custody of the accused and presence of police while making such confession; with any of the said fact, the said extra-judicial confession is not admissible under the eyes of law. We are of the considered view that the judgment of acquittal passed by the Court below is well founded based on admissible evidence and facts. In the present case, for the reasons stated above, we are of the opinion that the trial Court was fully justified in acquitting respondent No. 2/accused of all the charges by extending him benefit of doubt based on the evidence adduced by the prosecution. There is no infirmity or perversity in the judgment impugned for interference by this Court. The criminal revision being without any substance is liable to be dismissed and is hereby dismissed. Petition Dismissed.