JUDGMENT : MOHAMMAD RAFIQ, J. Aforesaid two criminal appeals(No. 1133/2007 and 1387/2007) have been filed by the accused-appellants Sabir @ Shabbir and Mohan Kathat respectively, assailing the judgment and order dated 27.04.2007 passed by the Additional District and Sessions Judge, Fast Track No. 1, Beawar, District Ajmer(for short ‘the trial court’) whereby each of the accused-appellants has been convicted for the offence punishable under Section 376(2)(g) IPC and sentenced to rigorous imprisonment of ten years with fine of Rs. 1,000/-, in default whereof they were to further undergo simple imprisonment of six months and further, each of the accused-appellants has also been convicted for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 1,000/-, in default whereof, they were to further undergo simple imprisonment for six months. All the sentences were ordered to run consecutively. Revision petition has been filed by the complainant Shankar Singh with the prayer that instead of life imprisonment, the accused-appellants may be awarded death penalty. Factual matrix of the case is that at 4.30 P.M. on 15.06.2006, one Rehman Kathat informed S.H.O., Police Station Beawar Sadar over telephone from Village Naya Gaon that dead body of one lady was lying near the talab(pond) and road of Naya Gaon. This information was entered in rojnamcha as Rapat No. 788 of Police Station Beawar(Exhibit P-44). S.H.O. along with other police personnel reached the spot where Shankar Singh, brother of the deceased Smt. Teeja submitted a written report(Exhibit P-4) to him alleging that on that day, i.e. 15.06.2006 at about 3.30-4.00 P.M. his sister Smt. Teeja Bai wife of Sohan Singh Rawat resident of Amar Singh Ka Badiya was going on foot to Naya Gaon for taking the flour. At that time, in the east side of village Naina Kathat, Mohan Kathat son of Bhanwar Kathat resident of Gorana subjected her to beatings near the pali adjacent to road going towards Naya Gaon and crushed her head and face by repeated blows of stone, as a result of which his sister died on the spot. It was alleged that Upendra Singh son of Biram Singh and Parmeshwar Singh son of Mohan Singh residents of village Amar Singh Ka Badiya have seen the incident. It was alleged that Upendra Singh son of Biram Singh and Parmeshwar Singh son of Mohan Singh residents of village Amar Singh Ka Badiya have seen the incident. On their raising hue and cry, Kailash son of Nenu Singh, Babu Singh son of Sardar Singh, Laxman Singh son of Mangal Singh and Dharam Singh son of Onkar Singh, all by caste Rawatan residents of Amar Singh Ka Badiya, came to the place of incident and saw that Mohan Kathat running towards the forest having a bag in his hand. Mohan Kathat reached the well of Panchu Singh son of Hajari Singh and jumped into the kheli (water pond meant for the cattle). He was trying to wash blood stains from his clothes and shoes when they caught hold him and handed him over to the police. It was alleged that other persons might have also participated in the incident along with Mohan Kathat. Request was made to take legal action and punish the culprit. On receipt of above report, FIR No. 219/2006(Exhibit P-32) was registered for offence under Section 302 and 201 IPC and investigation commenced. Post mortem of the deceased was conducted. During the course of investigation, accused-appellants were arrested. After completion of the investigation, the police filed challan against appellants for offence under Sections 376(2)(g) and 302 IPC. Trial court framed charges against accused-appellants for offences under Sections 376(2)(g) and 302 IPC, in the alternative, under Section 302/34 IPC. Accused-appellants denied charges and claimed trial. The prosecution produced 27 witnesses and exhibited 45 documents. Thereafter, accused-appellants were examined under Section 313 Cr.P.C. wherein they pleaded innocence. In defence, 6 witnesses were produced by accused-appellants and 7 documents were exhibited. Trial court, on conclusion of the trial, vide judgment and order dated 27.04.2007 convicted and sentenced accused-appellants in the manner indicated above. Mr. Biri Singh Sinsinwar, learned Senior Counsel appearing on behalf of the accused-appellant Sabir @ Shabbir argued that the trial court has used different yard sticks regarding reliability of the witnesses of the prosecution and the defence. The prosecution has to prove its case beyond all reasonable doubts while defence has to only probablise its case. In the present case, the prosecution has miserably failed to prove guilt of the accused-appellant beyond reasonable doubt. On the other hand, appellant has probablised his innocence in the case. The prosecution has to prove its case beyond all reasonable doubts while defence has to only probablise its case. In the present case, the prosecution has miserably failed to prove guilt of the accused-appellant beyond reasonable doubt. On the other hand, appellant has probablised his innocence in the case. Accused-appellant Sabir @ Shabbir has specifically stated in his examination under Section 313 Cr.P.C. that he has been falsely implicated in the case. Recovery of the pant at his instance is false, which in fact belongs to co-accused Mohan and not the present accused-appellant. It is argued that there is huge difference in the size of clothes. Accused-appellant used to get his pants stitched from Samrat Tailor. He produced his tailor Jitendra Tanwar(D.W4), who specifically stated that recovered pant does not belong to appellant. The trial court has not properly considered evidence regarding recovery of the pant and has convicted the appellant without any evidence against him on record. It is argued that the trial court erred in not taking into consideration that written report(Exhibit P-4) was lodged by Shankar Singh(P.W.3), brother of the deceased Smt. Teeja on 15.06.2006 at 5.30 P.M. alleging therein that it was Mohan Kathat, who inflicted injuries on the head and face of the deceased with stones, as a result of which she died on spot. He lodged the report on the basis of information furnished by Upendra Singh @ Bhupendra Singh(P.W.9) and Parmeshwar (P.W.7). Kailash Singh(P.W.4), Babu Singh(P.W.11), Laxman Singh(P.W.6) and Dharm Singh, who allegedly reached the place of incident on hearing hue and cry and caught hold of Mohan in ‘kheli’ of Panchu Singh. He was having a bag in his hand. It was also mentioned that on seeing these persons, he jumped into ‘kheli’ of the well of Panchu Singh and tried to wash his shoes and clothes, but he was caught by these persons and handed over to the police. It is argued that even from FIR, no case is made out against the accused-appellant Sabir @ Shabbir and allegation is only against co-accused Mohan, who was caught on spot there when he was washing his clothes and shoes at the well. Later on, accused-appellant Sabir @ Shabbir was falsely implicated in the case by showing recovery of pant of Mohan from him. Later on, accused-appellant Sabir @ Shabbir was falsely implicated in the case by showing recovery of pant of Mohan from him. Learned Senior Counsel referred to statement of Investigating Officer and argued that in cross-examination he stated that accused Sabir @ Shabbir was involved in the case on the basis of interrogation of the co-accused Mohan Kathat where for there could be no legal justification. There is no evidence whatsoever, either directly or indirectly, on record against the accused-appellant Sabir for offence under Section 376(2)(g) IPC. Conviction of the accused-appellant has been recorded only on the basis of conjecture and guess work. There is no evidence against the accused-appellant at all. The trial court has erred in law in not taking into consideration that neither there was any motive for the accused appellant to murder the deceased, nor any incriminating evidence was found from the appellant to connect him with the crime. Learned Senior Counsel referred to testimony of Shankar Singh(P.W.3), Parmeshwar(P.W.7), Upendra @ Bhupendra Singh(P.W.9), Kailash Singh(P.W.4), Laxman Singh(P.W.6), Babu Singh(P.W.11) and argued that statements of these witnesses are full of contradictions and inconsistencies and they all are planted witnesses. The prosecution has also planted Kalu Singh(P.W.15) and Mishru @ Mishri Singh(P.W.16), who have been disbelieved by the trial court. Learned Senior Counsel argued that the name of the accused appellant did not find place in written report(Exhibit P-4) lodged by Shankar Singh(P.W.3), brother of the deceased. The trial court has erred in law in not taking into consideration that the incident allegedly took place on 15.06.2006 and the appellant was arrested on 21.06.2006 vide Exhibit P-12. The trial court has drawn adverse inference regarding disappearance of the accused-appellant from 15.06.2006 up to 21.06.2006. Accused-appellant Sabir through out remained in the village and he himself surrendered at the police station. He specifically denied all the allegations in his statement recorded under Section 313 Cr.P.C. The trial court has erred in not taking into consideration that some prosecution witnesses as well as defence witnesses, have stated that the accused-appellant Sabir was there when the other villagers were present at the spot and was not apprehended at that time though co-accused was apprehended then and there. This also shows innocence of the accused-appellant. This also shows innocence of the accused-appellant. Learned Senior Counsel argued that in the site plan, it is mentioned by the Investigating Officer that dead body of Smt. Teeja Bai was lying at place 'X' and accused Mohan while he was going from village Amarsingh Ka Badia to village Naya Gaon on foot, caught hold of Teeja Bai from behind and put her to death by causing injuries with the stones. It is submitted that accused Mohan might have received blood stains on his clothes, but unless it is established, it cannot be said of accused Sabir @ Shabbir. Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) were present at the place of incident on the same day but the police did not record their statements on that day. Why their statements were recorded with delay of one day has not been explained by the prosecution. It is argued that the witnesses have stated that accused Sabir @ Shabbir ran in the direction of Village Gorana. If that was so, it was not possible for the witnesses to identify him. Learned Senior Counsel submitted that the trial court has erred in not taking consideration that the so-called recovered pant from the accused appellant was taken by the police from the Talab ki Paal on 17.06.2006 and it has been probablised by the accused-appellant that the said pant belong to co-accused Mohan and not the appellant. In spite of this, the trial court has illegally considered this recovery as corroborative evidence against the accused appellant. The trial court has further erred in not correctly appreciating Exhibit P-18, site plan of the place of incident and Exhibit P- 20, site plan of the place of recovery of silver ornaments at the instance of accused Sabir. There is great difference between both the site plans. Moreover, the site plans(Exhibits P-18 and P-20) did not get corroboration from the inspection report Exhibit C-1 prepared by the Presiding Officer after visiting the place of incident. Though the appellant has disputed recovery of pant stating that the pant did not belong to him, but the trial court has erred in law in not taking into consideration that as per the FSL Report, human blood was found on the so called pant recovered from the accused-appellant, but there was no blood grouping. Though the appellant has disputed recovery of pant stating that the pant did not belong to him, but the trial court has erred in law in not taking into consideration that as per the FSL Report, human blood was found on the so called pant recovered from the accused-appellant, but there was no blood grouping. The trial court has given the finding that the articles recovered from both the appellants bear human blood of AB group, but it is clear from the FSL report that blood group of the blood stains on shoes and pant could not be ascertained, which shows non-application of mind by the trial court. It is argued that the accused Sabir @ Shabbir was shown arrested on 21.06.2006 vide memo of arrest(Exhibit P-12) and the information under Section 27 of the Indian Evidence Act regarding his clothes(Exhibit P-35) was obtained from him one day after his arrest on 22.06.2006 but actual recovery was made on 22.06.2006, a week after the date of incident. Learned Senior Counsel referred to FSL Report(Exhibit P-39) and submitted that it is shown therein that vest(baniyan) recovered at the instance of accused-appellant Sabir @ Shabbir was found positive for the presence of blood stains whereas in the same FSL Report, shirt of the accused was found negative for the presence of human blood. Investigating Officer has thus falsely planted vest of the co-accused Mohan as recovered from the accused-appellant. If his vest had blood stains, there was no reason why there would be no blood stains on the shirt of the accused-appellant Sabir @ Shabbir. Learned Senior Counsel has relied upon the judgment of this Court in Gajanand Vs. State of Rajasthan, 2010 (2) Cr.L.R. (Raj.) 1260 wherein recovery of blood stained pant after eight days of the incident was held to be doubtful because no person would keep and preserve incriminating evidence with him for such a long period and would produce the same before the police officer at the time of his arrest. Learned Senior Counsel further relied upon judgment of the Supreme Court in Satish Chandra & Another Vs. State of Uttar Pradesh, (1983) 2 SCC 141 in which case weapon of offence 'gupti' was recovered at the instance of the accused therein, eight days after the incident. Learned Senior Counsel further relied upon judgment of the Supreme Court in Satish Chandra & Another Vs. State of Uttar Pradesh, (1983) 2 SCC 141 in which case weapon of offence 'gupti' was recovered at the instance of the accused therein, eight days after the incident. The Supreme Court disbelieved such recovery by observing that it would be highly improbable for an accused to continue to keep the blood-stained 'gupti' in the same condition without erasing or wiping out the blood stains thereon. It is argued that allegation of rape has not at all been proved against the accused-appellant Sabir @ Shabbir. Reference in this connection has been made to testimony of Dr. K.K. Chauhan(P.W.10), who has proved post mortem report of the deceased(Exhibit P-15) and opined that cause of death was haemorrhagic shock due to injuries on the head and face. He has not given any evidence as to rape. No injuries were sustained by the deceased on her private parts, which fact has also been specifically proved by Dr. Archana Mittal(P.W.25), who has stated that there was no injury on the stomach, thighs and legs of the deceased. There was no bleeding from the genitals of the deceased. Hymen was ruptured from before and would admit two fingers easily, thus, implying that the deceased was habitual to intercourse. Vaginal swab of the deceased was obtained on slides and sent to FSL but as per FSL report(Exhibit P38), no semen was detected. Mere fact that semen was detected on the undergarment of the accused-appellant does not prove any thing. The accused-appellant was young and married and in his case, such recovery was made after one week. There was nothing unusual in detection of semen in the undergarments of the accused-appellant. Besides, no DNA test was conducted by the prosecution to establish that it was the same semen, which was found on skirt(lehanga) of the deceased. Relying on the judgment of the Supreme Court in Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, (1981) 2 SCC 35 , learned Senior Counsel argued that in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. Relying on the judgment of the Supreme Court in Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, (1981) 2 SCC 35 , learned Senior Counsel argued that in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. Judgment of the Court must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis. The Supreme Court in this case held that discovery of blood stain of B Group measuring 0.5 cm. in diameter on the appellant's pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murdered the deceased. B Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group. As regards the dried stain of semen on the appellant's under-pant, it was observed that he was a grown up man of 30 years and no compelling inference can arise that the stain was caused during the course of the sexual assault committed by him on the girl. Learned Senior Counsel, therefore, prayed that appeal of the accused-appellant Sabir @ Shabbir be allowed and conviction and sentence awarded by the trial court to him may be quashed and set aside. Mr. Amarjeet Singh Narang, learned counsel appearing on behalf of the accused-appellant Mohan Kathat argued that as per allegation in the written report(Exhibit P-4) submitted by Shankar Singh(P.W.3), Kailash Singh(P.W.4), brother of the deceased, Babu Singh(P.W.11), Laxman Singh(P.W.6) and Dharam Singh saw accused-appellant Mohan fleeing away with a bag in his hand. If they were in hot pursuit and caught him at 'kheli' of Panchu Singh's well (1 Km. to the east as per Exhibit C-1), when did accused Mohan get the opportunity to conceal the bag under the stones surrounded by bushes beneath a cactus tree near a stone wall, recovery of which has been shown at the instance of the accused-appellant Mohan vide Exhibit P-19 on 18.06.2006, has not been explained by the prosecution. There is no explanation why the bag could not be recovered at the same time when Mohan was apprehended by Kailash and other persons. There is no explanation why the bag could not be recovered at the same time when Mohan was apprehended by Kailash and other persons. It is alleged that the accused Mohan ran from place ‘E’ towards Panchu's well, which is 1 Km. towards the east. The witnesses have stated that he had a bag in his hand. If he ran towards well in North-East, when did he have enough time with pursuers to go in a different direction and conceal the bag under a stone. Recovery of bag containing silver ornaments at the instance of accused Mohan vide Exhibit P-19 from a place 150 meters towards north west of the place of incident even as per Exhibit C-1, site plan prepared by the trial judge, is highly unbelievable. No independent witness was associated with the recovery made at the instance of the accused Mohan. Reliance in this connection has been placed on judgment of the Supreme Court in Harjit Singh & Others Vs. State of Punjab, AIR 2002 SC 3040 . Reliance has also been placed on judgment of this Court in Nand Lal Vs. State of Rajasthan (D.B. Criminal(Jail) Appeal No. 1150/2006 dated 25.11.2014) wherein disclosure statement under Section 27 of the Indian Evidence Act was not attested by any witness and, therefore, investigation was held to be tainted one and recovery of weapon of offence was also held to be doubtful. It is argued that information obtained from the accused under Section 27 of the Indian Evidence Act as to the place of incident, which was already known to the police, does not lead to discovery of any new fact. Such information has been held to be inadmissible in evidence. Reliance is placed on judgment of this Court in Shankar Lal & Mangilal Vs. State(D.B. Criminal Appeal Nos. 772/2006 and 503/2007 dated 19.12.2012). Learned counsel argued that testimony of Parmeshwar(P.W.7), Upendra @ Bhupendra(P.W.9), Kailash Singh(P.W.4), Babu Singh(P.W.11) and Laxman Singh(P.W.6) are full of inconsistencies and does not inspire any confidence. Information about incident received by the police was entered in rojnamcha at entry no. 788 at 4.30 on the day of incident(Exhibit 43-A), according to which one Rehman Kathat informed the police about the dead body which was lying on the road near pond. Said Rehman Kathat was not produced by the prosecution, but the defence produced him as D.W.1. Information about incident received by the police was entered in rojnamcha at entry no. 788 at 4.30 on the day of incident(Exhibit 43-A), according to which one Rehman Kathat informed the police about the dead body which was lying on the road near pond. Said Rehman Kathat was not produced by the prosecution, but the defence produced him as D.W.1. He has stated that Bhanwaroo son of Subhan informed him about dead body and he reached on the indicated place on motor cycle. 30-40 persons were present there. On enquiry, it transpired that no one has yet informed the police about the incident and therefore, he informed local police by his cell phone. This witness has stated that when he reached the place of incident, Kailash Singh(P.W.4), Babu Singh(P.W.11), Laxman Singh(P.W.6), Dharam Singh, Kalu Singh(P.W.15) and Mishri Singh(P.W.16) were not present there. This witness rather stated that he did not see anyone bringing accused Mohan to the dead body of deceased Teeja. In fact, Kailash Singh(P.W.4), Kalu Singh(P.W.15) and Mishri Singh(P.W.16) reached the place of occurrence 30-45 minutes after he reached there. Learned counsel argued that the trial court did not believe testimony of Parmeshwar(P.W.7) and Upendra @ Bhupendra(P.W.9) because their village was situated at quite a distance. The trial court has rightly disbelieved presence of Kalu Singh(P.W.15) and Mishru @ Mishri Singh(P.W.16), as none of them was associated with any of the memos prepared by the police during investigation. In fact, Rehman(D.W.1) in his statement has admitted that he knew about the fact that certain children witnessed the incident, but he has not named Upendra @ Bhupendra Singh(P.W.9) and Parmeshwar(P.W.7) as those children and rather stated that who were those children was not known to him. As per Exhibit C-1, site plan prepared by the trial judge on his inspection, distance of the place from where Upendra @ Bhupendra Singh(P.W.9) and Parmeshwar(P.W.7) saw the accused Mohan was 274 feet and it was not possible for these witnesses to recognise the accused from such a distance. Reliance in this connection has been placed by learned counsel on discussion on page 159 of the book Criminal Investigation under the heading of Photography by Dr. Hans Gross, sometime professor Criminology in the University of Prague. Reliance in this connection has been placed by learned counsel on discussion on page 159 of the book Criminal Investigation under the heading of Photography by Dr. Hans Gross, sometime professor Criminology in the University of Prague. Learned counsel referred to statement of Babu Singh(P.W.11) and submitted that this witness stated that there were inimical relations between people belonging to Mehrats and Rawats communities of two villages, which could be a reason for false implication of the accused-appellant. Babu Singh(P.W.13), Assistant Sub Inspector of Police has given contradictory version about availability of independent witnesses. He has stated that several persons were present at the place where from recovery was made, but no one was prepared to become motbir. He has admitted that place of occurrence was already known to the police. Information given by accused Mohan regarding recovery of bag of silver ornaments does not have any attesting witness. Learned counsel for the appellant submitted that the accused-appellant Mohan was even though allegedly caught on the spot on 15.06.2006, but his arrest was shown on the following day, i.e. 16.06.2006 vide Exhibit P-10, wherein a note was given about several injuries received by him. Exhibit P-13 is injury report of accused Mohan, which has been proved by Dr. Hemant Kumar Chauhan(P.W.8). The prosecution has not given any explanation for his injuries, but the trial court has attempted to conjecture on its behalf that the injuries could have been received by him when he was subjected to severe beatings by the crowd which gathered at the place of incident after he was brought from the 'kheli'. Reference has been made to statement of Kailash Singh(P.W.4), who denied that accused Mohan was subjected to beatings. The fact that the police did not show his arrest on the same day and did not get him medically examined then and there would clearly show that he was subjected to third degree method. Reliance is also placed on the judgments of the Supreme Court in State of Rajasthan Vs. Madho & Others, AIR 1991 SC 1065 and Lakshmi Singh & Others Vs. State of Bihar, AIR 1976 SC 2263 . Learned counsel argued that the blood stains on shoes of accused Mohan, when having been immersed in the water or 'kheli' could not have been detected by the FSL after such a long time. Madho & Others, AIR 1991 SC 1065 and Lakshmi Singh & Others Vs. State of Bihar, AIR 1976 SC 2263 . Learned counsel argued that the blood stains on shoes of accused Mohan, when having been immersed in the water or 'kheli' could not have been detected by the FSL after such a long time. It is argued that uncontrolled ejaculation occurs by the involuntary contraction of the sphincter muscles during hanging. Similar action to a smaller degree may occur during beating given, as involuntary voiding of faces may sometime occur on severe beating. If the accused Mohan had blood on his clothes, why the police did not seize the same at the earliest and waited till next evening has not been explained by the prosecution. Blood stained stones, if allegedly used by the accused in attacking the deceased, should also have his finger prints. Unless the stones were being dropped on the supine victim, so many stones would not have been required to assault as repeated blows from one would have sufficed. Referring to the statement of Dr. Archana Mittal(P.W.25), learned counsel argued that this witness has proved lack of injuries around genital parts of the victim. Besides, vaginal swab and slides of the deceased sent to the FSL also did not result in detection of semen(Exhibit P- 38), yet the trial court has convicted the accused-appellant under Section 376(2)(g) IPC just because it held that the accused were found capable to sexual intercourse and semen was detected on their undergarments and in order to escape detection, the accused committed murder of Teeja. The accused being young and married, having children, were potent. Absence of semen on the vaginal swab and the slides, rules out any sexual assault on the victim. Learned counsel argued that motive for committing the murder has not been proved. Relying on the judgment of the Supreme Court in Jharya S/o. Kalla Bairwa Vs. State of Rajasthan, WLC(Raj.) 1993(3) 114, it is argued that existence of motive is not necessary to hold the accused person guilty of crime, but when motive is alleged and is specifically disproved, the benefit has to go to the accused and it has the effect of discrediting the prosecution version. State of Rajasthan, WLC(Raj.) 1993(3) 114, it is argued that existence of motive is not necessary to hold the accused person guilty of crime, but when motive is alleged and is specifically disproved, the benefit has to go to the accused and it has the effect of discrediting the prosecution version. It is argued that the accused Mohan owed certain money to Rajjak, which he had borrowed in connection with his mother's death, but Rajjak was not willing to keep the ornaments. Mohan was apprehended with the bag of ornaments when he was on his way to Masuda to pledge the ornaments and raise money for paying off Rajjak(D.W.5). These ornaments were eventually released in favour of grand mother and wife of the accused Mohan during pendency of the trial under Section 451 Cr.P.C. The trial court, however, disbelieved Rajjak(D.W.5) and also doubted presence of the accused with him between 4.30-5.00 P.M. only because no documentary proof of advancement of loan was produced and the ornaments were not kept by Rajjak. Documents are not necessarily prepared while advancing the loan in the countryside. Nothing is shown to have been recovered from the accused Mohan on his search at the time of his arrest. Thus, arrest memo of accused Mohan is also fabricated. Learned counsel for the accused-appellant further argued that the trial court has erred in law in directing that sentences awarded to the accused-appellant shall run consecutively and that the appellants should first serve the sentence of ten years rigorous imprisonment under Section 376(2)(g) IPC and thereafter sentence of life imprisonment under Section 302 IPC. It is settled preposition of law that in case an accused is convicted of several offences, one of which entails a life sentence, no sentence can be imposed to run consecutively. Reliance in this connection has been placed on judgment of the Supreme Court in Duryodhan Rout Vs. State of Orissa, (2015) 2 SCC 783 . Learned counsel argued that recovery of blood stained clothes of the appellant Mohan has been relied by the trial court to convict him. The prosecution sought to prove that the blood group AB was the same as that of the deceased. Since, the accused was himself injured, the prosecution was under obligation to get his own blood group determined to rule out the possibility that blood found on his clothes was not his own. The prosecution sought to prove that the blood group AB was the same as that of the deceased. Since, the accused was himself injured, the prosecution was under obligation to get his own blood group determined to rule out the possibility that blood found on his clothes was not his own. Reliance in this connection has been placed on judgment of the Supreme Court in Prakash Vs. State of Karnataka, (2014) 6 SCC Crl. 642. Learned counsel argued that facts of the present case, as alleged by the prosecution, would show that the accused while attempting rape accidentally caused death of the deceased Teeja, this would take the offence out of the purview of murder because if the dominant intention was to kill any particular person, then felonious act would be murder simplicitor. If the act of murder was not originally intended and was caused in furtherance of any other felonious act, then the murder is accidental. Reliance in this connection has been placed by learned counsel for the appellant on the judgment of the Supreme Court in Smt. Rita Devi & Ors. Vs. New India Assurance Co. Ltd. & Another, (2000) 5 SCC 113 . Learned counsel for the accused-appellant further argued that even if it is accepted that the accused had the intention of committing rape upon the deceased, they cannot be held to have simultaneous intention of committing her murder. There was no premeditation to cause her death. Therefore, the offence at the maximum would fall in the purview of Section 304 Part II IPC. In support of his arguments, reliance has been placed on judgment of this Court in Ukarda Vs. State of Rajasthan, 1988 (2) RLR 817. Learned Public Prosecutor opposed the appeals and argued that guilt of the accused has been proved beyond reasonable doubt by overwhelming evidence. In this connection, learned Public Prosecutor referred to statement of Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9), eye witnesses and statements of Kailash Singh(P.W.4), Laxman Singh(P.W.6), Babu Singh(P.W.11), witnesses who were named in the FIR(Exhibit P-32) and caught the accused Mohan on the spot. Learned Public Prosecutor submitted that fourth witness, Dharam Singh named in the FIR, whose statement was recorded under Section 161 Cr.P.C. could not be produced before the trial court because he was serving in the Indian Army. Learned Public Prosecutor submitted that fourth witness, Dharam Singh named in the FIR, whose statement was recorded under Section 161 Cr.P.C. could not be produced before the trial court because he was serving in the Indian Army. Statements of Kailash Singh(P.W.4), Laxman Singh(P.W.6), Babu Singh(P.W.11) would be admissible in evidence by virtue of doctrine of res gestae enshrined in Section 6 of the Indian Evidence Act, 1872. It is contended that both the accused had over powered the deceased while they committed rape on her and due to this fact, she did not receive any injuries around her genital parts which cannot be a factor in favour of the accused. Learned Public Prosecutor referred to statement of Narendra Pratap Singh(P.W.26), Investigating Officer, wherein he stated that it was revealed in the investigation that one of the accused caught hands of the deceased, another accused committed rape with her. Investigating Officer has proved that place of incident was identified by both the accused Sabir @ Shabbir and Mohan vide Exhibit P-18 and Exhibit P-21 respectively. Blood smeared clothes of the deceased Smt. Teeja were recovered vide Exhibit P-9 whereas ear tops, hair clip and amulet(tabij) of the deceased were recovered from the place of incident vide Exhibit P-8. Blood smeared clothes and shoes of the accused Mohan were seized vide Exhibit P-11 whereas clothes of the accused Sabir @ Shabbir were seized vide Exhibit P-16. All these recoveries were made in the presence of motbir witnesses. Learned Public Prosecutor denied the allegation that the accused Mohan was subjected to third degree. In fact, evidence clearly prove that the accused was chased by the witnesses in hot pursuit and caught one kilometer away from the place of incident from kheli and was brought back to place of incident. In this process, it was quite natural that the crowd that had assembled there, subjected the accused to beating, which resulted into minor injuries on his body. Therefore, not much significance can be attached to such injuries. Even the accused Mohan in his statement under Section 313 Cr.P.C. has also not taken the defence that he was subjected to third degree treatment. Learned Public Prosecutor referred to FSL Report(Exhibit P-38) and argued that this report proves that human semen was detected on the underwear of both the accused as also on skirt(Lehanga) of the deceased. Even the accused Mohan in his statement under Section 313 Cr.P.C. has also not taken the defence that he was subjected to third degree treatment. Learned Public Prosecutor referred to FSL Report(Exhibit P-38) and argued that this report proves that human semen was detected on the underwear of both the accused as also on skirt(Lehanga) of the deceased. Reliance is placed on FSL Report(Exhibit P- 39) to argue that skirt(lehanga) and blouse of the deceased were found to be positive for the presence of human blood of AB group whereas 'Odani' of the deceased was also found to contain human blood. Shirt of accused Mohan had human blood of AB positive group whereas blood was also found on his belt and shoes which was not sufficient for test. Blood found on the jeans and pant of the accused Sabir @ Shabbir was also not found sufficient to determine the group but the blood found on his vest(baniyan) was detected to be human blood of AB Group. Learned Public Prosecutor referred to Exhibit C-1, site plan prepared by the trial judge after inspecting the place of incident and found that Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) have seen the incident from place 'A' therein which is a hill top and distance of place of incident 'E' therefrom is 274 feet. It is thus evident that it was day light, which made it quite possible for the said witnesses to see the accused and recognise them. Both of the witnesses have stated that they knew accused Mohan and Sabir @ Shabbir because both of them worked as labourer for unloading stones in their school. Learned Public Prosecutor submitted that Investigating Officer has given valid explanation for not recording the statements of Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9), child witnesses on the same day. It was quite natural for these children in their tender age to get frightened by such a ghastly incident which they witnessed and therefore, the police did not insist on recording of their statements on the same day. Delay of one day in the facts of the present case would not affect veracity of their version. It is, therefore, prayed that the appeals of the accused-appellants be dismissed and judgment passed by the trial court be confirmed. Mr. Delay of one day in the facts of the present case would not affect veracity of their version. It is, therefore, prayed that the appeals of the accused-appellants be dismissed and judgment passed by the trial court be confirmed. Mr. J.P. Gupta, learned counsel for the petitioner-complainant has adopted arguments advanced by learned Public Prosecutor and submitted that the present case being a case of rape accompanied by murder, falls in the category of rarest of the rare cases and therefore, the trial court erred in not awarding capital punishment to the accused-appellants. This Court should now award death sentence to the accused. Alternatively, he has submitted that looking to the gravity of offence, even if the trial court has not awarded capital punishment, but it has rightly directed that both the sentences shall run consecutively. No interference is required to be made in the impugned judgment on that count either. We have given our anxious consideration to rival submissions and carefully perused the material on record. We shall begin with the earliest version given to the police by the informant Shankar Singh(P.W.3) on the basis of whatever information he gathered from the persons, who were present at the place of occurrence. In the written report (Exhibit P-4) it was alleged that the deceased was on foot going from village Amar Singh Ka Badia to village Naya Gaon at 3.30-4.00 P.M. on 15.06.2006 to fetch flour. Accused Mohan Kathat son of Bhanwar Kathat resident of Gorana subjected her to beatings by inflicting injuries on her head and face by stones. As a result of which, she died on spot. Upendra @ Bhupendra Singh(P.W.9) and Parmeshwar(P.W.7) were named as eye witnesses and it was alleged that on their making hue and cry, Kailash Singh(P.W.4), Babu Singh(P.W.11), Laxman Singh(P.W.6), Dharam Singh came rushing there. These persons followed Mohan Kathat up to the well of Panchu Singh where he was trying to wash blood on his clothes and shoes in ‘kheli’. All the witnesses named in the written report (Exhibit P-4), except Dharam Singh, were produced in the trial court. Dharam Singh, who is said to be serving Indian Army, could not be produced in the trial court. Now, we have to examine whether guilt of the accused has been proved beyond reasonable doubt by whatever evidence has been produced by the prosecution. Shankar Singh(P.W.3) has proved written report (Exhibit P-4). Dharam Singh, who is said to be serving Indian Army, could not be produced in the trial court. Now, we have to examine whether guilt of the accused has been proved beyond reasonable doubt by whatever evidence has been produced by the prosecution. Shankar Singh(P.W.3) has proved written report (Exhibit P-4). In his statement, he stated that Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) had seen Mohan hitting Teeja by stones and when they made hue and cry, Mohan ran towards agricultural fields. Kailash Singh(P.W.4), Babu Singh(P.W.11) and Laxman Singh(P.W.6) followed him and brought him back from the well of Panchu Singh to the place where dead body of the deceased was lying. He stated that on further enquiry it was revealed that the accused Sabir @ Shabbir was also involved in the crime and these accused had raped Teeja and thereafter committed her murder. In cross-examination, this witness stated that he did not name accused Sabir @ Shabbir in his police statement(Exhibit D-1) and he did not meet Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) before giving that statement to police and he met them in the night at about 8-9 P.M. at their residence and found that they were frightened. This witness indicated from the site plan the place of incident as 'A' and stated that ear rings, piece of ear and blood were lying there. Adverting now to statement of Parmeshwar(P.W.7) eye witness, who was aged 12 years, he has stated that he along with Upendra @ Bhupendra Singh(P.W.9) had gone to eat black berry in the jungle near well. While they were returning back, they saw that Mohan and Sabir @ Shabbir were hitting Teeja by stones on her head. When both of them made hue and cry, Kalu Singh(P.W.15) and Mishhru @ Mishri Singh(P.W.16) came from the side of Naya Gaon. While Mohan ran towards agricultural fields, Sabir @ Shabbir ran towards village Gorana. Mohan was wearing black pant, black shirt and white shoes and Sabir @ Shabbir was wearing blue jeans pant and shirt of the same colour. This witness stated that he knew Mohan and Sabir @ Shabbir because they worked as labourers in their school for unloading stones. He stated that on hearing hue and cry, Kailash Singh(P.W.4), Babu Singh(P.W.11) and Laxman Singh(P.W.6) also came rushing to the place of incident and chased Mohan and brought him from the well of Panchu Singh. This witness stated that he knew Mohan and Sabir @ Shabbir because they worked as labourers in their school for unloading stones. He stated that on hearing hue and cry, Kailash Singh(P.W.4), Babu Singh(P.W.11) and Laxman Singh(P.W.6) also came rushing to the place of incident and chased Mohan and brought him from the well of Panchu Singh. This witness stated that he and Upendra @ Bhupendra Singh(P.W.9) both were frightened and therefore, that day they went to their house. In cross-examination, this witness stated that distance between the place from where he saw the incident and the place of incident was 80-90 feet. His statement was recorded by the police(Exhibit D-3) on the following day when he went to police station with his father. Therein, he mentioned about two boys but it was correctly recorded that one boy ran towards agricultural fields and another boy ran towards village Gorana. This witness has denied suggestion that Sabir @ Shabbir was got involved after his name was disclosed by co-accused Mohan. Upendra @ Bhupendra Singh(P.W.9) has also given similar version as that of Parmeshwar(P.W.7) that he knew both the accused since they worked as labourers in their school for unloading of stones. They came to well for eating black berry and while returning back, they saw that Sabir @ Shabbir and Mohan were beating deceased Teeja by stones. When they cried, Kalu and Mishru came there. While Sabir @ Shabbir ran towards village Gorana, accused Mohan ran towards agricultural fields and then, Kailash, Dharam Singh, Laxman, Babu Singh also came rushing and they chased Mohan and brought him back from the well of Panchu. This witness also stated that because he was frightened, he went to his house and he was taken to police station on the following day where his statement was recorded. In cross-examination, this witness stated that he had given names of the accused in his statement recorded under Section 161 Cr.P.C.(Exhibit D-4). He also told the police that Mohan was brought back to the place of incident from the well of Panchu and gave description of the clothes, but he could not explain why police did not record the same in his statement. This witness clearly identified accused Mohan in the trial court and was not confused as to identity of both the accused. This witness clearly identified accused Mohan in the trial court and was not confused as to identity of both the accused. But in crossexamination, this witness stated that while accused were fleeing from the place of incident, he saw face of the accused Mohan, but in respect of another accused Sabir @ Shabbir, he has stated that he only saw his back. We, at this stage, are inclined to hold that delay of one day in recording statements of the aforesaid two child witnesses in the facts of the present case cannot be said to be fatal to the prosecution case because it was quite natural for the children of tender age to become frightened by the incident which they witnessed and also by the fact that large number of people and police came to the place of incident which fact has been acknowledged even by Shankar Singh(P.W.3). Even then, we have to further scrutinise their testimony to find out whether it finds corroboration from other evidence and it would be safe to sustain conviction of both the accused-appellants on that basis. Coming to now the witnesses, who, as per the prosecution reached there, on hearing hue and cry of the child witnesses Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) and then chased accused Mohan up to the well of Panchu and brought him back to the place of incident. The prosecution has, in order to prove all this, has produced Kailash Singh(P.W.4), Laxman Singh(P.W.6) and Babu Singh(P.W.11). Kailash Singh(P.W.4) has stated that he, upon hearing the call that some one has murdered wife of Sohan Singh, rushed to the place, i.e. Kalki Mata Ki Pahadi. A goatherd told him that the person, who has murdered the lady, has gone towards the well of Panchu. When he chased him, he noticed accused Mohan Kathat, who jumped into 'kheli' adjacent to the well of Panchu. Babu Singh(P.W.11), Dharam Singh and Laxman Singh(P.W.6) also accompanied him in this pursuit. They pulled him out of the 'kheli' and brought him back to the place of incident. This witness in crossexamination stated that the crowd that assembled there was discussing that accused had committed rape with Teeja and then murdered by crushing her head with stones. Those persons were mentioning names of both Mohan and Sabir @ Shabbir. They pulled him out of the 'kheli' and brought him back to the place of incident. This witness in crossexamination stated that the crowd that assembled there was discussing that accused had committed rape with Teeja and then murdered by crushing her head with stones. Those persons were mentioning names of both Mohan and Sabir @ Shabbir. When confronted with his statement recorded under Section 161 Cr.P.C., he stated that tops, hair clip and amulet(tabij) of deceased were seized by the police vide Exhibit P-8. Stones containing blood stains were seized by the police vide Exhibit P-7. Clothes of the deceased were seized vide Exhibit P-9. He was attesting witness to all these documents and his signatures were obtained on the documents. Skirt(Lehanga) of the deceased had blood stains and semen stains. He was also attesting witness to the arrest memo of accused Mohan who was arrested on the following day around 9-10 P.M. vide Exhibit P-10. He was also witness to seizure of pant, shirt and shoes of accused Mohan(Exhibit P- 11). His underwear had stains of semen. In cross-examination, this witness has stated that Shankar Singh(P.W.3) arrived at the place of occurrence much later. He talked to Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) after the dead body was removed. They did not meet him at the place of occurrence but met him at the residence. When he chased Mohan, he was at a distance of 100-150 meter. Dead body was lying in a pit which was 5-5.5 feet deep from the road. In cross-examination, this witness was unable to give name of the goatherd, who made hue and cry and called for help. Laxman Singh(P.W.6) has also given similar statement and stated that when all of them chased Mohan up to well of Panchu, he jumped into ‘kheli’ and tried to wash blood stains of his shoes. They pulled him out of ‘kheli’ and brought to the place where the dead body of Teeja was lying. This witness has stated that skirt(Lehanga) of the deceased was lying in such a position that gave impression that she must have been raped. This witness stated that in the evening he learnt from Parmeshwar(P.W.7), Upendra @ Bhupendra Singh(P.W.9) and Kalu Singh(P.W.15) that Sabir @ Shabbir was also involved in the said crime because the accused had run away from the place of occurrence. This witness stated that in the evening he learnt from Parmeshwar(P.W.7), Upendra @ Bhupendra Singh(P.W.9) and Kalu Singh(P.W.15) that Sabir @ Shabbir was also involved in the said crime because the accused had run away from the place of occurrence. In cross-examination, he admitted that he happens to be elder brother of husband of deceased Teeja. Statement of Babu Singh(P.W.11) is also similar to that of Kailash Singh(P.W.4) and Laxman Singh(P.W.6). He also stated that they chased Mohan up to the well of Panchu and pulled him out of 'kheli' where he was trying to wash blood stains on his clothes and shoes. At that time, he was wearing black pant, black shirt, belt and white shoes. Clothes of the deceased were in torn condition and her body gave the impression that she must have been raped. He was also attesting witness to memo of seizure of blood stained stones(Exhibit P-7) and memo of seizure of hair clips, ear tops and amulet(tabij) (Exhibit P-8) and memo of seizure of cloths of the deceased(Exhibit P-9), arrest memo of accused Mohan(Exhibit P-10), seizure memo of cloths, belt and shoes of the accused Mohan(Exhibit P-11). He stated that skirt(lehanga) of the deceased had blood stains and semen stains. In cross-examination, he admitted that he did not see Mohan and Sabir @ Shabbir near the dead body, but the children present there told him on the next day that Sabir @ Shabbir was also involved in the crime. This fact was disclosed by him to the police in his statement recorded under Section 161(Exhibit D-5) but he could not explain why the same was not recorded therein. A cumulative reading of statements of Parmeshwar(P.W.7), Upendra @ Bhupendra Singh(P.W.9), Kailash Singh(P.W.4), Babu Singh(P.W.11), Laxman Singh(P.W.6) thus clearly show that while they are consistent about the role of accused Mohan, their testimony is not so clinching and firm as to the involvement of Sabir @ Shabbir. In fact, three witnesses, namely Kailash Singh(P.W.4), Babu Singh(P.W.11) and Laxman Singh(P.W.6) have mentioned that on hearing hue and cry of a goatherd, they rushed after Mohan and chased him up to the well of Panchu Singh and brought him back. They did not meet Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) and did not see them at the place of occurrence. They did not meet Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) and did not see them at the place of occurrence. Statement of aforesaid three witnesses, who claimed to have chased and caught Mohan, if analysed, would show that Kailash Singh(P.W.4) and Laxman Singh(P.W.6) are consistent in their statements that they did not meet Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) at the place of occurrence. While Kailash Singh(P.W.4) has stated that they met him at the residence, but in cross examination he has not made it clear whether it was his own residence or the residence of either Parmeshwar(P.W.7) or Upendra @ Bhupendra Singh(P.W.9). Laxman Singh(P.W.6) has stated that he learnt from Parmeshwar(P.W.7) or Upendra @ Bhupendra Singh(P.W.9) and Kalu Singh(P.W.15) in the evening that Sabir @ Shabbir was also involved in the crime. Babu Singh(P.W.11) did not tell name of Parmeshwar(P.W.7) or Upendra @ Bhupendra Singh(P.W.9) but stated that police has recorded statements of small children in separate room on the day when the arrest memo of the accused was prepared. The children told him on the following day that Sabir @ Shabbir was also involved in the crime. These three witnesses are consistent in their version that on call of certain goatherd, they rushed to the place of incident and chased accused Mohan. None of them has alleged that they chased Mohan on the call made by either Parmeshwar(P.W.7) or Upendra @ Bhupendra Singh(P.W.9). Hot pursuit, in which these three witnesses had chased accused Mohan immediately upon hearing hue and cry and the manner in which Mohan rushed towards well of Panchu and jumped into 'kheli' and tried to wash out blood stains on his clothes and the shoes and the fact that all these witnesses pulled him out of the 'kheli' and brought him back to the place where the dead body of Teeja was lying would make it clear that the accused Mohan was seen running by these witnesses and this would therefore be relevant fact forming part of same transaction which finds corroboration from the recovery of clothes of the deceased(skirt and blouse) containing blood and semen stains and also the clothes of the accused Mohan containing blood of AB positive group and semen. This would be relevant fact having been so connected with a fact in issue as to form part of the same transaction. This would be relevant fact having been so connected with a fact in issue as to form part of the same transaction. Even if these witnesses did not see the accused committing rape upon the deceased and murder her, their evidence is materially relevant not only with a view to prove actual fact of rape and murder which was “in issue” but also to prove the “relevant fact” namely that just after the event, they reached there and saw the accused fleeing from the place of occurrence and chased him and eventually caught him in a situation where he was found with blood stained shirt, pant and belt and shoes and was trying to wash out them in the ‘kehli’ and brought him back to the place of incident. These facts form part of same transaction within the meaning of Section 6 of the Evidence Act and such evidence would be by virtue of doctrine of res gestae admissible because of proximity of time and continuity of action. It is not mere semen found on the underwear of the accused Mohan as well as semen found on the skirt(lehanga) and blouse of the deceased that would connect him with the crime but also the blood stains of AB group found on his shirt which matched with AB blood group of Teeja. Besides, blood of human origin was found on 'odani' of the deceased Teeja and blood of human origin found on the belt and shoes of the accused Mohan. Two out of three witnesses, who chased him, were attesting witnesses for recovery memos of his clothes. Recovery of clothes of the accused Mohan on following day would not make much difference because Mohan was caught at the place of occurrence while running towards the well of Panchu and the witnesses have deposed that he was wearing the same clothes. Contention that since no independent witness was associated while obtaining information from the accused under Section 27 of the Evidence Act and therefore, recovery made pursuant thereto is not believable cannot be countenanced. The Supreme Court in State, Govt. of NCT of Delhi Vs. Contention that since no independent witness was associated while obtaining information from the accused under Section 27 of the Evidence Act and therefore, recovery made pursuant thereto is not believable cannot be countenanced. The Supreme Court in State, Govt. of NCT of Delhi Vs. Sunil & Another, (2001) 1 SCC 652 held that mere absence of independent witness when investigating officer recorded the information under Section 27 of the Evidence Act at the instance of the accused and the article was recovered pursuant thereto is not sufficient ground to discard the evidence. Evidence of police officer regarding the recovery at the instance of the accused should ordinarily be believed. It is for the accused to show that such evidence is unreliable. Official acts of police should be presumed to be regularly performed. Archaic notion to approach actions of police with initial distrust should be discarded. The Supreme Court in Govindraju alias Govinda Vs. State by Sriram Mapuram Police Station & Another, (2012) 4 SCC 722 on this aspect of the matter has held that mere absence of independent witnesses when investigating officer recorded statement of accused and article was recovered pursuant thereto, is not a sufficient ground to discard evidence of police officer relating to recovery at instance of accused. The argument advanced by learned counsel for the accused Mohan that he did not have premeditation and it was accidental death and therefore, he must be held guilty of offence under Section 304 Part II IPC is wholly erroneous. Judgment of the Supreme Court in Rita Devi & Others(supra), relied by learned counsel for the accused Mohan, was rendered in altogether different context, while dealing with claim for compensation under Sections 163A and 170 of the Motor Vehicles Act, 1988 on the premise that the deceased therein died during the course of employment of the owner of auto rickshaw and his death was caused in an accident arising out of the use of the vehicle. Facts of the case reveal that his death was caused accidentally in the process of theft of auto rickshaw. It was in those facts that the Supreme Court over turned the conclusion arrived at by the High Court that the claimant was not entitled to compensation as the death was not caused due to accident in the course of employment. Facts of the case reveal that his death was caused accidentally in the process of theft of auto rickshaw. It was in those facts that the Supreme Court over turned the conclusion arrived at by the High Court that the claimant was not entitled to compensation as the death was not caused due to accident in the course of employment. The ratio of the aforesaid judgment has no application to the facts of the present case. Adverting now to the case of the accused Sabir @ Shabbir, his involvement in the crime cannot be said to be free from doubt because none of the witnesses has stated in the manner they named accused Mohan about his presence or involvement in the crime. Their testimony as regards him is based on hearsay evidence that the children told them on the following day that Sabir @ Shabbir was also involved in the crime. In fact, Kailash Singh(P.W.4) has not stated any thing about Sabir @ Shabbir and that any of the children told him about his involvement. Laxman Singh(P.W.6) has further stated that Parmeshwar(P.W.7) or Upendra @ Bhupendra Singh(P.W.9) and Kalu Singh(P.W.15) told him about involvement of Sabir @ Shabbir also, but Kalu Singh(P.W.15) and Mishru @ Mishri Singh(P.W.16) have been disbelieved by the trial court. Babu Singh(P.W.11) has, however, stated that two children told him on the following day that Sabir @ Shabbir was involved in the crime, but he did not name Parmeshwar(P.W.7) or Upendra @ Bhupendra Singh(P.W.9) as those children. Recovery of clothes at the instance of the accused Sabir @ Shabbir is also quite doubtful because his arrest was made on 21.06.2016 vide Exhibit P-12 but information under Section 27 of the Indian Evidence Act at his instance is shown to have been recorded vide Exhibit P-35 about the aforesaid clothes on 22.06.2006 whereas the actual recovery was made on 22.06.2006 vide Exhibit P-16. The very fact that while vest shown to have been recovered at his instance is found to contain blood stains but there were no blood stains on his shirt, also makes the recovery doubtful because if the accused Sabir was wearing vest as well as shirt, it would be impossible that only vest would have blood stains and not the shirt. The Supreme Court in Satish Chandra & Another(supra), while justifying rejection of recovery evidence by the High Court observed that blood stained gupti and currency notes recovered from the accused therein during one and the same search could not be believed because it would be highly improbable that for about eight days after the incident, the accused would continue to keep the blood stained gupti in the same condition without erasing or wiping out the blood stains thereon. Some doubt was cast on the recovery of the currency notes also. The Division Bench of this Court in Gajanand(supra) held that recovery of blood stained pant after eight days of the incident would be doubtful because no person would keep and preserve incriminating evidence with him for such a long period and would produce the same before the police officer at the time of his arrest. We would, however, like to lodge a caveat at this stage that it cannot be laid down as a rule of universal application that every case of delayed recovery of blood stained clothes should be doubted, but in totality of facts of the present case, where the evidence that is against the accused Sabir @ Shabbir is not such that he should be held guilty of offence, recovery of the clothes is also rendered doubtful. Chain of circumstances against him is not so complete as to rule out every hypothesis that may not be compatible with his innocence. It cannot be on that basis said that he and he alone must have been involved in the crime of rape and murder of the deceased. Kailash Singh(P.W.4), Laxman Singh(P.W.6) and Babu Singh(P.W.11) have not stated about the presence of accused Sabir @ Shabbir, when they brought Mohan back from the well of Panchu to the place where dead body of Teeja was lying. We are however inclined to believe statements of child witnesses namely Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9), at least to the extent of involvement of accused Mohan. Both these children were aged about 12 years. It was quite natural for the children of tender age to get frightened by the ghastly incident which they witnessed. Therefore, even if the police did not record their statements on the same day, delay of one day in the facts of the case would not affect the veracity of their version. Both these children were aged about 12 years. It was quite natural for the children of tender age to get frightened by the ghastly incident which they witnessed. Therefore, even if the police did not record their statements on the same day, delay of one day in the facts of the case would not affect the veracity of their version. Even the aforesaid three witnesses have also stated that certain children were present there, who witnessed the incident. The trial judge has inspected the site and prepared inspection report(Exhibit C-1), according to which children were standing at place A, distance of which was measuring 274 feet from the place of incident. Learned counsel for the appellant Mohan has cited book titled Criminal Investigation authored by Dr. Hans Gross, professor of Criminology in the University of Prague, First Indian Reprint 2000, which on page 159, para 10 under the heading of Photography, reads as under: “it is appropriate here to call attention to what has been said about the distance at which we can recognise persons. Presuming the eyesight to be normal and the light good, one is able in broad daylight to recognise: (a) Persons whom one knows very well, at a distance of from fifty to ninety yards; when there are particular and very characteristic signs, 110 yards; in exceptional cases up to 165 yards. (b) Persons one does not know very well and has not often seen from twenty eight to thirty three yards. (c) People one has seen only once, sixteen yards. By moonlight one can recognize when the moon is at the quarter, persons at a distance from twenty one feet, in bright moonlight at from twenty-three to thirtythree feet; and at the very brightest period of the full moon, at a distance of from thirty-three to thirty-six feet. In tropical countries the distances for moonlight may be increased.” Both the child witnesses namely Parmeshwar(P.W.7) and Upendra @ Bhupendra Singh(P.W.9) have stated that they knew both the accused very well. Even if they are not believed for the accused Sabir @ Shabbir, but they have to be believed at least for the role of accused Mohan with respect to whom there is sufficient corroborative evidence. Even if they are not believed for the accused Sabir @ Shabbir, but they have to be believed at least for the role of accused Mohan with respect to whom there is sufficient corroborative evidence. Distance of 270-280 feet when translated into yards would roughly come to 90-93 yards and therefore, it was not difficult for them to identify the accused in the day light, particularly when the accused was chased by other witnesses in hot pursuit and was immediately caught with blood on his clothes, belt and shoes. The fact that the accused Mohan was carrying bag containing silver ornaments belonging to his grand mother would have no bearing in so far as his complicity in the crime is concerned. Therefore, if the silver ornaments were released in favour of grand mother and wife of the accused Mohan under Section 451 Cr.P.C., it would cause no dent to the prosecution case. Mere fact that Dr. Archana Mittal(P.W.25) has stated that the deceased did not receive injuries around her genital parts would not be a factor to conclude that the deceased was not subjected to rape. The accused had over powered the deceased while he committed rape on her and due to this fact, she did not receive any injuries around her genital parts. This, therefore, cannot be a factor in favour of the accused. Dr. Archana Mittal (P.W.25) also stated that vagina would easily admit two fingers and that the deceased was habitual to intercourse. Stains of semen were found on the skirt(lehanga) of the deceased and simultaneously, stains of semen were also found on underwear of the accused Mohan. Clothes and blouse of the deceased were also found in torn condition. According to FSL Report(Exhibit P-39), skirt(lehanga) and blouse of the deceased were found to be positive for the presence of human blood of AB group whereas 'Odani' of the deceased was also found to contain human blood. Shirt of accused Mohan had human blood of AB positive group. These facts have been proved by the attesting witnesses and would be sufficient to hold that when the accused Mohan committed rape with the deceased, she must have resisted and therefore, she was put to death by the accused by crushing her head with the stones. Blood stained stones were also recovered from the place of occurrence. These facts have been proved by the attesting witnesses and would be sufficient to hold that when the accused Mohan committed rape with the deceased, she must have resisted and therefore, she was put to death by the accused by crushing her head with the stones. Blood stained stones were also recovered from the place of occurrence. Besides, the fact that the deceased was subjected to rape can also be inferred from the attending circumstances that her hair clip, ear tops and amulet(tabij) were also found lying nearby, which proves the resistance posed by her. Therefore, while chain of circumstances against the accused Mohan is so complete which points towards his guilt that it must be he alone, who must have committed rape upon the deceased and thereafter murdered her, but there are very many missing links in the chain of circumstances against the accused-appellant Sabir @ Shabbir and is not so complete as to hold so. The Supreme Court in Shankarlal Gyarsilal Dixit(supra) held that it is not expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis. The Supreme Court further held that falsity of plea taken by accused cannot prove the guilt of the accused, though it may be an additional circumstance against him. Lastly, coming to the argument that the trial court ought not to have directed that sentence of rigorous imprisonment of ten years awarded under Section 376(2)(g) IPC shall be served upon the accused first and sentence of life imprisonment awarded under Section 302 IPC shall be served thereafter and both the sentences should have been ordered to run concurrently, this question is squarely covered by judgment of the Supreme Court in Duryodhan Rout(supra), wherein the accused was convicted under Sections 376(2)(f) and 302/201 IPC. While the trial court awarded capital punishment for the offence under Section 302 IPC, the High Court converted the same into life imprisonment and maintained conviction and sentence of accused therein for offence under Section 376(2)(f) and 201 IPC which were ordered to run consecutively. Interpreting provisions of Section 31 Cr.P.C., especially sub-section (2) thereof, it was held by the Supreme Court in Para 29 and 34 as under: “29. Section 31 Cr.P.C. relates to sentence in cases of conviction of several offences at one trial. Proviso to Sub Section (2) to Section 31 lays down the embargo whether the aggregate punishment of prisoner is for a period of longer than 14 years. In view of the fact that life imprisonment means imprisonment for full and complete span of life, the question of consecutive sentences in case of conviction for several offences at one trial does not arise. Therefore, in case a person is sentenced of conviction of several offences, including one that of life imprisonment, the proviso to Section 31(2) shall come into play and no consecutive sentence can be imposed. 34. For the reasons stated above, while we are not inclined to interfere with the order of conviction and the sentence, considering the fact that the accused has been awarded life imprisonment for the offence under Section 302, we direct that all the sentences imposed under Indian Penal Code are to run concurrently. The judgment passed by the Session Judge as affirmed by the High Court stands modified to the extent above. The appeals are allowed in part with the aforesaid observations.” The Supreme Court in O.M. Cherian alias Thankachan Vs. State of kerala & Others, (2015) 2 SCC 501 has held that Section 31 Cr.P.C. indicates that in case the court directs sentences to run one after the other, the court has to specify the order in which the sentences are to run. If the court directs running of sentences concurrently, order of running of sentences is not required to be mentioned. Discretion to order running of sentences concurrently or consecutively is judicial discretion of the court, which is to be exercised as per the established law of sentencing. The court before exercising its discretion under Section 31 Cr.P.C. is required to consider the totality of the facts and circumstances of those offences against the accused while deciding whether sentences are to run consecutively or concurrently. The court before exercising its discretion under Section 31 Cr.P.C. is required to consider the totality of the facts and circumstances of those offences against the accused while deciding whether sentences are to run consecutively or concurrently. The Supreme Court held that 14 years rule contained in Clause (a) of the proviso to Section 31(2) Cr.P.C. is not applicable in relation to sentence of imprisonment for life, since imprisonment for life means the convict will remain in jail till the end of his normal life. The Constitution Bench of Supreme Court in a recent judgment in Union of India Vs. V. Sriharan @ Murugan & Others, 2015(4) Crimes 433(SC) has reiterated the law that life means entire span of ones life and life imprisonment means imprisonment for rest of life of a convict which would mean entirety of life. In view of authoritative pronouncements of the Supreme Court, it must be held that the trial court was not justified in directing that sentence of ten years rigorous imprisonment awarded to the accused-appellants under Section 376(2)(g) IPC(which would now stand altered to one under Section 376 IPC) shall be served first and thereafter sentence of life imprisonment under Section 302 IPC shall be served and that both the sentences would be served by the accused-appellants consecutively. On the aspect of proportionality of sentence, in our considered view, the punishment has to be prescribed according to culpability of criminal conduct of the accused. The sentencing system has to operate in such a manner as may reflect collective conscience of the society and should be as stern as the facts of given case demand. In what kind of cases sentence of death should be awarded has been subject matter of discussion in various judicial pronouncements so much so the guidelines that were laid down by the Supreme Court in Bachan Singh Vs. State of Punjab – (1980) 2 SCC 684 , while upholding the validity of Section 302 of the IPC, which authorizes imposition of penalty of death sentence, while concurring with the view expressed by it in earlier judgment in Tdiga Annamma Vs. State of Punjab – (1980) 2 SCC 684 , while upholding the validity of Section 302 of the IPC, which authorizes imposition of penalty of death sentence, while concurring with the view expressed by it in earlier judgment in Tdiga Annamma Vs. State of Andhra Pradesh – (1974) 4 SCC 443 , are adhered to till date, which are that (i) extreme penalty of death need not be inflicted except in gravest cases of extreme culpability, (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime', (iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances, and (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The Supreme Court in Devender Pal Singh v. State of NCT of Delhi – (2002) 5 SCC 234 , while detailing out the circumstances and the relevant principles on this aspect by revisiting Bachan Singh's case, supra, and Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470 , observed in Para 58 as under:- “58. From Bachan Singh's case (supra) and Machhi Singh's case (supra) the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed: The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. It was observed: The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of `bride burning' or `dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.” The Supreme Court in Machhi Singh's case, supra, while following its earlier dictum in Bachan Singh's case, supra, held that life imprisonment is the rule and death sentence is an exception, to which guidelines we have already made reference hereinabove. Apart from guidelines in Bachan Singh's case, referred to above, the Supreme Court in Machhi Singh's case, supra, in Para 33 and 34 additionally observed that in making a choice between the death penalty and that of life imprisonment, the court has also to take into consideration manner and motive of commission of murder. We find that the circumstances of this case are not such where having regard to the nature of those circumstances, the act of the accused can be said to be a case of such extreme culpability where the life imprisonment would be altogether inadequate punishment. We find that the circumstances of this case are not such where having regard to the nature of those circumstances, the act of the accused can be said to be a case of such extreme culpability where the life imprisonment would be altogether inadequate punishment. When we draw a balance sheet of all the aggravating circumstances as against mitigating circumstances of this case, we rather feel more inclined to maintain the sentence of life imprisonment than to award death penalty. The Supreme Court in Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 , dealt with various aggravating as well as mitigating circumstances, which should weigh with the court in deciding whether or not case would fall in the category of rarest of rare cases so as to award death penalty. Their Lordships, in para 52 of the report, held as under:- “Aggravating Circumstances as pointed out above, of course, are not exhaustive so also the Mitigating Circumstances. In my considered view that the tests that we have to apply, while awarding death sentence, are “crime test”, “criminal test” and the R-R Test and not “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is 100% and “criminal test” 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the “criminal test” may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of the society that is “society centric” and not “Judge centric” that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc.. Examples are only illustrative and not exhaustive. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc.. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges.” In the result, the appeal filed by the accused-appellant Sabir @ Shabbir is allowed. Conviction and sentence of accused-appellant Sabir @ Shabbir for offences under Sections 376(2)(g) and 302 IPC is set aside. He is acquitted of all the charges. He is in Jail and be set at liberty forthwith, if not required to be detained in any other case. The appeal filed by the accused-appellant Mohan Kathat is partly allowed. His conviction under Section 376(2) (g) IPC is altered to Section 376 IPC and he is sentenced to rigorous imprisonment of ten years with fine of Rs. 1,000/-, in default whereof he would further undergo simple imprisonment of six months. However, conviction and sentence of accused-appellant Mohan Kathat for offence under Section 302 IPC is maintained. It is directed that sentences awarded to him on each count shall run concurrently. Judgment of the trial court stands modified to that extent. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Sabir @ Shabbir is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, he, on receipt of notice thereof, shall appear before the Supreme Court. Revision petition filed by the complainant-petitioner is dismissed. Registry is directed to place a copy of this judgment on record of each connected file.