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2016 DIGILAW 796 (RAJ)

Gopal Sharma v. State of Rajasthan

2016-05-31

MOHAMMAD RAFIQ, VIJAY KUMAR VYAS

body2016
JUDGMENT : Mohammad Rafiq, J. 1. This appeal is directed against the judgment dated 11.05.2009 passed by the Additional District and Sessions Judge (Fast Track) No. 2, Sikar Camp, Srimadhopur in Sessions Case No. 05/2007 convicting the accused-appellant in the manner as indicated below: Under Section 302 IPC and sentencing him to Life Imprisonment and fine of Rs. 5,000 and in default to further undergo a sentence of three months simple imprisonment. Under Section 376(2)(F) IPC and sentencing him to ten years rigorous imprisonment and fine of Rs. 2,000 and in default to further undergo a sentence of two months simple imprisonment. Under Section 366(A) IPC and sentencing him to ten years rigorous imprisonment and fine of Rs. 2,000 and in default to further undergo a sentence of two months simple imprisonment. Under Section 363 IPC and sentencing him to seven years rigorous imprisonment and fine of Rs. 2,000 and in default to further undergo a sentence of two months simple imprisonment. Under Section 201 IPC and sentencing him to seven years rigorous imprisonment and fine of Rs. 2,000 and in default to further undergo sentence of two months simple imprisonment. All the sentences were ordered to run concurrently. Briefly stated, the facts of the case are that a written report (Ex. P1) was submitted by Mahendra Kumar (PW1) before the SHO Police Station Srimadhopur, District Sikar at 12.45 PM on 9.12.2006 stating therein that his daughter Neha (Sinu) aged 7-8 years was playing outside the house on Chabutara at 6.30 PM on 8.12.2006. He was inside the shop. When he searched his daughter after 15 minutes for meal, she was not found. They kept on searching her daughter at night in the village and also in nearby hutments (dhanies), but she was not traceable. When they continued searching in the morning, her dead body was found in 'radawala kuwan' (well) near the village to his "mama" (mental (sic maternal) uncle) Girvar Lal and Pappu Meena, which was taken out of the well. It appeared from her dead body that somebody has committed, rape upon her and for concealing the evidence afterwards committed her murder by strangulation and threw the dead body into the well. 2. Police on receipt of the written report lodged a regular first information report No. 302/2006 for offence under Sections 376, 302 and 201 IPC. It appeared from her dead body that somebody has committed, rape upon her and for concealing the evidence afterwards committed her murder by strangulation and threw the dead body into the well. 2. Police on receipt of the written report lodged a regular first information report No. 302/2006 for offence under Sections 376, 302 and 201 IPC. After investigation, the charges for the aforesaid offences were framed against the accused-appellant, who denied the same and claimed trial. The prosecution examined as many as 32 witnesses and produced 46 documents. Defence, however, did not examine any witness, but produced five documents. The learned court below on conclusion of the trial, convicted and sentenced the accused-appellant in the manner as indicated above. Hence this appeal. 3. Shri A.K. Gupta, learned Senior Counsel appearing for the accused-appellant has argued that conviction of the appellant is wholly unjustified inasmuch evidence produced by the prosecution does not prove his conviction beyond reasonable doubt. There is no eye-witness of the incident and the case of the prosecution hinges entirely on the circumstances. The chain of circumstances against the accused-appellant does no point out a finger of doubt only at him. The trial court has therefore erred in convicting the accused appellant for the alleged offences. Seven circumstances which have been enumerated by the trial court in para 13 of the judgment in the chain of circumstances against the accused for justifying his conviction on the basis of evidence, fall short of the required standard of proof beyond reasonable doubt. Even if all these circumstances are accepted, they being taken together, do not rule out every hypothesis, which may be compatible with the innocence of the accused-appellant. It is alleged that accused-appellant gave toffees to the deceased and took her away with the intention of committing sexual intercourse on her and then committed rape upon her in the agricultural field of Amar Chand. When she became unconscious, he threw her into the well situated in field of Sajjan Singh with the intention of concealing the evidence. 4. Learned Senior Counsel submitted that the learned trial court in arriving at this finding has heavily relied on the testimony of Pooja (PW9), a child witness, who knew accused from before. She attended the criminal proceedings on several dates, but her statement was not recorded earlier and no identification parade was conducted. 4. Learned Senior Counsel submitted that the learned trial court in arriving at this finding has heavily relied on the testimony of Pooja (PW9), a child witness, who knew accused from before. She attended the criminal proceedings on several dates, but her statement was not recorded earlier and no identification parade was conducted. She has stated that deceased Sinu was seen in the shop of Gopal Swami where one person with black complexion was also seen and she identified that person as accused-appellant in the court. The prosecution has also not produced Gopal Swami, who was the most important witness. Pooja (PW9) has made lot of improvements, contradictions and omissions in her statement. In his statement, she has totally changed her version from her statement u/s. 161 Cr.P.C. (Ex. D3). Her statement was recorded five and half months after the occurrence. Besides, the evidence of last seen loses significance because in this case, the distance between the shop of Gopal Swami and the agricultural field of Sajjan Singh is enormous and there is no evidence that accused was seen covering the distance with Pooja and she in her company reached the aforesaid agricultural field. This is an important missing link in the chain of circumstances. Age of this witness was only 11 years and therefore no reliance on testimony of such a child witness for an evidence of last seen can be placed. Pooja (PW9) has stated in cross examination that Sinu went to the shop of Pinku Chachu and came back. After eating toffees she again started playing on the chabutara. She has denied the suggestion that Sinu brought toffees from the shop of Gopal Swami. Pooja (PW9) has stated that she had seen the accused in the village selling the masalas. Learned Senior Counsel has cited the judgment of Supreme Court in Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702 , which according to learned counsel is squarely applicable to the facts of the present case. 5. It is argued that the learned trial court has placed reliance on the information given by the accused-appellant under Section 27 of the Evidence Act about the place where he committed rape with the deceased and then murdered her and thereafter threw her deadbody in the well. The trial court has shown recovery of two wrappers of alpenliebe toffee, which is wholly unbelievable. The trial court has shown recovery of two wrappers of alpenliebe toffee, which is wholly unbelievable. Learned Senior Counsel argued that if two toffees as per Pooja (PW9) were consumed by Sinu at chabutara, how could wrappers be recovered from the agricultural field of Amar Chand? Admittedly, the incident took place on 8.12.2006, whereas the appellant was arrested 22 days thereafter on 30.12.2006. It becomes highly unnatural that two wrappers of the toffee, which the accused allegedly gave to deceased in the shop of Gopal Swami would continue to lie in the agricultural field of Amar Chand for such a long period. This is nothing but result of police concocting and fabricating the documents only with a view to implicate the accused. 6. It is argued that the third circumstance relied by the prosecution was the alleged footprints found near the well wherefrom the dead body was recovered. The prosecution has claimed that two persons namely; Girvar Lal and Pappu Meena first of all learnt about the dead body lying in the well and then they informed the villagers. The villagers thereupon reached there and the dead body was then taken out of the well. Presence of footprints of the appellant in these circumstances near the well would become highly impossible. The footprints are allegedly proved by FSL report (Ex. P46). Admittedly, no such footprints were indicated in the site plan (Ex. P2). Reliance placed by the learned trial court on the photographs Ex. P25A and Ex. P29A taken by Pawan Kumar (PW22) long time after the preparation of site plan also is not trustworthy. Even if any footprints were found near the well, it could not be said that these were the footprints of the accused and not of anyone else. Besides the footprints were not taken in accordance with the required procedure prescribed under Code of Criminal Procedure and also as per Rule 6.26 of the Rajasthan Police Rules, 1965. Learned Senior Counsel argued that no independent witness or Magistrate was associated with the process of lifting the footprints. Reliance in this connection is placed on the judgment of this Court in Sunder & Ors. v. State of Rajasthan, 2015 (2) RLW 1296 (Raj.). 7. Learned Senior Counsel for the accused-appellant has submitted that there is discrepancy in the exhibits prepared with regard to foot sole impressions. While Ex. Reliance in this connection is placed on the judgment of this Court in Sunder & Ors. v. State of Rajasthan, 2015 (2) RLW 1296 (Raj.). 7. Learned Senior Counsel for the accused-appellant has submitted that there is discrepancy in the exhibits prepared with regard to foot sole impressions. While Ex. P8 indicates that plaster of paris sole impression of right foot of the accused was taken at 1.15 PM on 1.1.2007, Ex. P9 indicates that plaster of paris sole impression of his left foot was taken at 1.30 PM on 1.1.2007. No independent witness was associated with this process. The police has shown recovery of two jutis (local shoes) vide Ex. P10 on 1.1.2007, but attesting witnesses of this recovery were both police Constables. State Forensic Science Laboratory report (Ex. P46) however shows that report was prepared on the basis of footwear sole impression basis and not on the basis of footprint. Thus it is evident that recovery of footwear were manipulated by the police to connect the footprints. It is argued that footprints are of two different shoes, which were not adequately made clear. Makkhan Lal (PW4), Moolchand (PW5), Brijraj Singh (PW6) and Chandrabhan (PW28) have admitted that lot of people assembled near the well. Mohan Lal (PW13) has admitted that footprints were lifted from the place of occurrence, but he also admitted that footprints of the accused were taken in the Police Station for the purpose of comparison, but at the same time, he also admitted that footwear (juti) of the deceased were obtained vide Ex. P10. In cross examination, however, he has sought to explain that the footprint impressions were taken while the accused was wearing the footwear and not with bare foot. Ashok Kumar (PW15) has however stated that impressions of footwear were lifted from the place of occurrence vide Ex. P3. Balbeer Singh (PW20) has stated that footprints of left and right foot of the accused were lifted in the presence of Mohan Singh, Tehsildar, Srimadhopur in Police Station. However Mohan Singh (PW25) Tehsildar has gone to the extent of saying that both footprint and footwear impressions were lifted in his presence and sent to FSL, but in cross examination he stated that bare foot print impressions were not taken in his presence. Ladu Singh (PW29), ASI has stated that footprints were lifted from the place of incident by developing on plaster of paris powder. Ladu Singh (PW29), ASI has stated that footprints were lifted from the place of incident by developing on plaster of paris powder. In examination in chief as also in cross examination, no explanation was given why then FSL report does not refer to impression of foot prints and why it only refers to footwear sole impression. The report of FSL, therefore, cannot be read against the accused. Foot mould, as an article was not produced before the Court. The prosecution has failed to prove that such footprints were taken in accordance with relevant rules and they remained intact till they reached FSL. 8. Learned Senior Counsel submitted that the learned trial court has utterly failed to consider the medical evidence in the light of site plan. If the statement of prosecution witnesses are related to the medical evidence along with site plan, it becomes clear that no rape was committed with the deceased and that the injuries found on the person were caused due to fall in the well. Duration of the injuries were found to be of two weeks old. The accused was arrested on 30.12.2006 and the occurrence allegedly took place on 8.12.2006. The injuries do not connect the accused with the crime. The statement of Pappu Meena (Nai)(PW10) has thus no value as he has been declared hostile. Even if his statement is taken into consideration, this circumstance does not prove anything against the accused-appellant. Statement of Mali Devi (PW7) and Gomti Devi (PW8) have also not been properly appreciated by learned trial court, which even otherwise do not connect the accused with the crime. Mali Devi (PW7) has stated that she did not see anyone taking Sinu along with him. She rather stated that she saw Gopal Sharma going towards the shop of Gopal Swami, but in cross examination she has stated that at that time deceased Sinu was present in her house. Gomti Devi (PW8) has also not given any evidence of last seen. Shambhu Dayal Tailor (PW19) and Balveer Singh (PW20) do not prove any circumstances against the accused-appellant. The learned trial court has erred in law in not relying on the statement of Narendra Singh Shekhawat (PW11). Babu Lal (PW31), the first Investigating Officer has also admitted that until investigation remained with him, he did not learn about any toffee seller in the village. The learned trial court has erred in law in not relying on the statement of Narendra Singh Shekhawat (PW11). Babu Lal (PW31), the first Investigating Officer has also admitted that until investigation remained with him, he did not learn about any toffee seller in the village. He has stated that moulds of the footprints were deposited by him in the malkhana. Bansi Lal (PW32), the second Investigating Officer has categorically admitted that he did not get the identification of the accused conducted because accused was known to Pooja (PW11). He has stated that his investigation did not reveal whether the alpenliebe toffees were sold in any shop of village Mundaru. 9. Shri A.K. Gupta, learned Senior Counsel for the accused-appellant argued that Rule 7.31 of the Rajasthan Police Rules provides for identification of accused, which was not at all been followed. He has referred to Section 53A of Cr.P.C. and argued that this provision was purposely inserted in the Code by the Parliament by way of amendment to provide for examination of accused of rape by medical practitioner. While the police received the DNA report and FSL report, but they deliberately did not produce the same on record because had those reports been produced, they would have gone in favour of accused. No evidence of rape has been given by Dr. Vijay Kumar Sharma (PW14) either in the examination in chief or cross examination, but this gap was sought to be bridged by the prosecution by statement of Dr. Kailash Chand Gupta (PW21), whereas the third member of the Medical Board the lady Dr. Divya Batra, who conducted the postmortem could most authentically say about this fact, was deliberately not produced. There was thus clearly no evidence of rape. A suggestion was given to Bansilal (PW32) for deliberately not producing DNA report and FSL report, which he denied. Learned Senior Counsel in support of his arguments has relied on the judgment of Supreme Court in Kanan & Ors. v. State of Kerala, AIR 1979 SC 1127 , Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700 . 10. Learned Senior Counsel in support of his arguments has relied on the judgment of Supreme Court in Kanan & Ors. v. State of Kerala, AIR 1979 SC 1127 , Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700 . 10. Shri Aladeen Khan, learned Public Prosecutor opposed the appeal and supported the judgment arid stated that the learned trial court was perfectly justified in convicting the accused-applicant as the charges against the accused-appellant were proved beyond reasonable doubt by circumstantial evidence namely; that the deceased was last seen in his company and that his footprints were found near the well wherefrom the dead body was recovered and that the accused gave toffees to the deceased and took her to the agricultural field of Amar Chand where he committed rape upon her. When she became unconscious, he threw her in the well of the field of Sajjan Singh to conceal the evidence. 11. It is argued by learned Public Prosecutor that the accused gave information u/Sec. 27 of the Evidence Act about the place of incident where he committed rape and two wrappers of the toffee were recovered from there and that the accused was found potent and an old injury was found on his penis, which corresponds approximately to the period when the rape was committed. He was seen in the village Mundaru in the shop of Pappu Nai in a state of intoxication at 6-630 PM on 8.12.2006 from where he took Neha @ Sinu to the place of incident on the pretext of giving toffees. Learned Public Prosecutor therefore submitted that conviction of accused-appellant is just and proper and does not call for any interference by this Court. 12. We have given our anxious consideration to the rival submissions and perused the material on record. 13. The learned trial court has heavily relied on the testimony of Pooja (PW9), elder sister of the deceased, who has stated that Sinu and Tanu had gone to the temple of Shyamji around 6 PM. This witness, aged 11 years, was playing in the house. Her Mother told her to call Sinu and Tanu. At that time, her brother Himanshu was in the varandah. Sinu was in the shop of Gopal Swami. There was one black complexioned person in that shop and she identified accused as that person. This witness, aged 11 years, was playing in the house. Her Mother told her to call Sinu and Tanu. At that time, her brother Himanshu was in the varandah. Sinu was in the shop of Gopal Swami. There was one black complexioned person in that shop and she identified accused as that person. In the statement, the learned trial court has overruled the objection of the counsel for the defence that the accused was shown to this witness by the police and that no test identification parade was conducted. The learned trial court noted the fact that the accused was identified by this witness Pooja (PW9). She has further stated that accused was the one, who gave toffee to Sinu while he was standing in the shop of Gopal Swami, then this witness started playing. She further stated that when her mother asked her to call Sinu and when she searched, Sinu was nowhere found. In cross examination, this witness has denied the version given to the police in Ex. D3 where she stated that she saw a black complexioned person in the shop of Gopal Swami, who was giving toffee to another person. She then stated in the police statement that there were four boys in the shop of Gopal Swami, who went towards the shop of Pinku @ Sandeep Chachu. She then further stated that Sinu had gone to the shop of Pinku Chachu to take toffee where they often used to go. All this has been disowned by this witness in cross examination. 14. The most significant aspect of the matter is that neither Gopal Swami has been produced by the prosecution, nor Pinku @ Sandeep Chachu has been produced. These two were very important witnesses, who could have thrown some light on the matter as to the evidence of last seen. By their non-production, it can be inferred that their testimony would have gone in favour of accused. Although identification of the accused for the first time in dock may in the given circumstances if finds corroboration from other evidence may be relied, but in the present case on the basis of solitary testimony of a child witness Pooja (PW9) wherefore corroboration sought by the prosecution is lacking in many aspects. It would therefore not be safe to solely rely this sole witness to justify conviction of the accused. It would therefore not be safe to solely rely this sole witness to justify conviction of the accused. Mali Devi (PW7), the grandmother of the deceased cannot be said to be a witness of last seen because all that she has stated is that she saw Gopal Sharma going towards the shop of Gopal Swami. She has not stated anything about Sinu. Gomti Devi (PW8), mother of the deceased has stated that Sinu and Tanu went to the temple of Shyamji around 5.30 PM, but returned back home around 6-6.15 PM. Sinu stayed with her for about 15-20 minutes and then she went outside the house at chabutara and thereafter did not return back. Distance between the two places is quite significant. There is no evidence of the fact that accused was seen taking Kumari Sinu from the shop of Gopal Swami towards the agricultural field of Amar Singh. This gap has not been bridged by any evidence of the prosecution, which is an important missing link in the chain of circumstances against the accused-appellant. 15. Another important circumstance relied against the accused by the trial court is that the footprints lifted from the open land near well as per the FSL report matched with those of the sole impression of the accused. Ex. P46 is the FSL report and Ex. P8 is the memo of plaster of paris mould of right foot sole impression of accused Gopal taken in the Police Station. Ex. P9 is the memo of plaster of paris mould of left foot sole impression of the accused, which was also lifted from the Police Station in presence of Mohan Singh (PW25), Tehsildar Sawaimadhopur. Ex. P10 is the recovery memo of one pair shoe (juti) of the accused. Ex. P3 is the seizure memo of plaster of paris moulds of footwear sole-impression of probable accused. On this aspect, sufficient dent has been caused by learned Senior Counsel for the appellant to the prosecution case. Chittarmal (PW3) grandfather of the deceased has admitted that several persons assembled near the well where the dead body was found, but he denied the suggestion in cross examination that number of such persons were 700-800. Makkhan Singh (PW4), who took the dead body out of well has admitted that several persons assembled near the well. Chittarmal (PW3) grandfather of the deceased has admitted that several persons assembled near the well where the dead body was found, but he denied the suggestion in cross examination that number of such persons were 700-800. Makkhan Singh (PW4), who took the dead body out of well has admitted that several persons assembled near the well. Moolchand Sharma (PW5) in cross examination had admitted that even before the police arrived at the well around 60-65 people had assembled near the well. Girvar Lal (PW17) who was the first one to discover the dead body, in cross examination admitted that when the police reached the place of incident, a crowd of around 100-200 person had already assembled there. Chandrabhan (PW28) has stated that there were about 300-400 persons, who had gathered around the well. 16. Now in the light of this fact when we examine the statement of other witnesses, which have been produced to consider the manner in which the footprints were lifted by the police from the place of occurrence, we find that Mahendra Kumar (PW1) has stated it were the footprints, which were lifted near the well. Mohan Lal (PW13) is the witness to the lifting of the footprint moulds. In cross examination, he stated that initially the footprints of appellant were lifted and thereafter, his footwear were recovered. But then he sought to clarify that footprints were taken wearing shoes and not without shoes. Similarly, Ashok Kumar (PW15) has stated that plaster of paris foot moulds were lifted from the place of occurrence. Balbir Singh (PW20) has stated that foot print impressions were lifted from the Police Station in the presence of Mohan Singh Tehsildar, Sawaimadhopur and he further stated that one foot impression of right side and another of left side were lifted. In cross examination, when it was put to him why in article-1, it was not mentioned that it was the footwear sole impression and not foot print impression, he simply stated that he could not explain why in Ex. P8, it was not mentioned by the police. Similarly, on Ex. P9 also, he has not written that footwear sole impression was taken by him and only investigating officer writes so. The article shoes were not produced before the Court. P8, it was not mentioned by the police. Similarly, on Ex. P9 also, he has not written that footwear sole impression was taken by him and only investigating officer writes so. The article shoes were not produced before the Court. Mohan Lal (PW13), the Constable has stated that he was attesting witness to the recovery of the pair of shoe of the accused vide Ex. P8, but when these shoes were recovered, the Tehsildar and another witness Vijay Pal were not present. 17. Mohan Singh (PW25), the Tehsildar in whose presence the foot moulds were lifted from the Police Station has in the beginning of the statement has stated that it was the foot print of the right foot and left foot of plaster of paris, which were lifted in his presence. He admitted in cross examination that in memos Ex. P8 and Ex. P9, it was not mentioned that footprint of jutis was taken by wearing the jutis. He further sought to clarify this that footprint impressions of the deceased without wearing the shoes were not taken in his presence. Sufficient dent has been caused by the defence to the prosecution case as to the manner in which the footprint mould impressions or for that matter, the footprint impressions were lifted by the prosecution from the place of incident and also from the Police Station. The shoes as articles were not produced before the Court. Besides, the factum of large number of persons gathered around the well is writ large from testimony of several prosecution witnesses. All these facts expose lacunaes in the prosecution story because the FSL report does not mention about the footprint impression. All that it states is about left and right footwear sole impressions. 18. Even otherwise, the evidence of footprints is a weak type of evidence and it can only be used to reinforce the conclusion arrived at by the Court on the basis of other evidence. The Supreme Court in Pritam Singh & Anr. v. The State of Punjab, AIR 1956 SC 415 held that the science of identification of footprints is no doubt a rudimentary science but not much reliance can be placed on the result of such identification. The Supreme Court in Pritam Singh & Anr. v. The State of Punjab, AIR 1956 SC 415 held that the science of identification of footprints is no doubt a rudimentary science but not much reliance can be placed on the result of such identification. Such track evidence, however, can be relied upon as a circumstance, which along with other circumstances, would point to the identity of the culprit, though by itself it would not be enough to carry conviction in the minds of the Court. In Balbir Singh & Anr. v. State of Punjab, 1996 (6) SCALE 72, the Supreme Court held that footprints proved by the prosecution is a very weak evidence and on the basis of footprints, it cannot be conclusively said that these footprints were of the accused. In Mohd. Aman & Anr. v. State of Rajasthan, AIR 1997 SC 2960 : RLW 1997(3) SC 442, the Supreme Court held that the science of footprints identification is not a fully developed science. It is unsafe to accept footprints when the sample of footprints were not taken before a Magistrate. That apart, the science of identification of footprints is not a fully developed science and, therefore, if in a given case, evidence relating to the same is found to be satisfactory, it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence. 19. The prosecution has not produced the FSL report and DNA report of blood samples and clothes of the accused and deceased and vaginal swab pubic hair and scalp hair of deceased. The suggestion given by the defence to Chhitarmal (PW3) that these evidences were not deliberately produced was denied by him. The similar suggestion was given to the Investigating Officer Bansi Lal (PW32), to which he replied that he was not aware whether the FSL report of the various collected samples sent to it by the police and DNA and Central FSL report were not deliberately being produced because they would prove the accused innocent. Surprisingly, when we checked the record of this case, we find that the matter was fixed before the court below on 13.1.2009 for evidence of the defence on this aspect. Surprisingly, when we checked the record of this case, we find that the matter was fixed before the court below on 13.1.2009 for evidence of the defence on this aspect. On 16.12.2008, when the matter was at the stage of evidence of defence, a letter has been received from Superintendent of Police concerned regarding filing of FSL and DNA reports, in which a direction was issued to the SHO for placing those reports on record. Thereafter, the matter was fixed on 3.1.2009 and then the Additional Public Prosecutor filed the two reports on 7.1.2009, copy of which have been provided to the counsel for the defence for their evidence. When the defence failed to produce any evidence, it was ordered on 13.1.2009 that the matter will be taken up for final arguments on 22.1.2009. Eventually, the matter remained pending for quite some time and finally the judgment was rendered on 11.5.2009. It would thus be clear that though the aforesaid two reports have not been formerly exhibited, but those reports by virtue of provisions contained in Section 293 of Cr.P.C. could be received in evidence without being formerly exhibited by any witnesses. Considering that the copy of same was provided to the defence during trial, we perused the report and found that DNA Profiling Report dated 28.03.2007 prepared by Central Forensic Science Laboratory, Central Bureau of Investigation, New Delhi and sent under the signatures of Dr. B.K. Mohapatra, SSO-II (Bio.), CFSL, CBI, New Delhi is to the effect that no male fraction DNA profile could be generated from the source of exhibits-1 (Vaginal swab), A-1a, (Parallel Suit), A-1b (Sweater), A-1c (Banian), A-1d (Woolen Jacket) & A-1e (Underwear) of the deceased. Further no DNA profile could be generated from the source of exhibits-F-1a (Shirt), F-1b (Pants), F-1c (Banian), F-1d (Underwear) and F-1e (Muffler) of the accused. Hence no comparison could be established. The FSL report of packet-A containing hair, packet-D containing public hair and packet-E containing scalp hair shows that on morphological and microscopic examination, inducted that they were found to be hairs of human origin and no definite opinion could be drawn regarding comparison of hair in exhibit Nos. 1 (from A), 2 (from D) and 3 (from E). Thus evidence against the accused-appellant on this aspect also does not link him with the crime. 20. 1 (from A), 2 (from D) and 3 (from E). Thus evidence against the accused-appellant on this aspect also does not link him with the crime. 20. The recovery of two wrappers of alpenliebe toffee from the place of incident after 22 days of the incident vide Ex. P24 is again highly suspect. Two wrappers of the alpenliebe toffee could not be lying in the agricultural field for as long as 22 days. Besides, Pooja (PW9) has also stated that the deceased went to the shop of Pinku Chachu wherefrom she purchased two alpenliebe toffees and ate both of them on the chabutara of the house itself. Obviously Pooja, a child witness has been tutored to say about the alpenliebe toffees, but in making that statement she has faulted and stated about the consumption of two toffees on the chabutara of the house itself. Although in earlier part of the statement, she has stated that she saw one black person purchasing the toffee from the shop of Gopal Swami and giving it to another person. In Court statement, she has stated about the presence of the accused in the shop of Gopal Swami. However, neither Gopal Swami, nor Pinku Chachu have been produced. Investigating Officers Babu Lal (PW31) and Bansilal (PW32) have stated that their investigation could not reveal any shopkeeper of alpenliebe toffee in their area. 21. The only evidence that now remains is the medical examination of the accused (Ex. P12), according to which he was found to be potent and further that he was found to be having an injury, slightly healing, present over frenulum of his penis. Ex. P12 has been proved by Dr. Vijay Kumar Sharma, who stated that there was an old injury mark below the frenulum of penis of the accused. In cross examination, he has stated that the injury was such which could completely heal within two weeks. The incident in the present case has taken place on 8.12.2006 and the accused has been arrested on 30.12.2006, which period is more than three weeks and, therefore, the possibility of that injury being sustained by the accused after the incident could not be ruled out. 22. The incident in the present case has taken place on 8.12.2006 and the accused has been arrested on 30.12.2006, which period is more than three weeks and, therefore, the possibility of that injury being sustained by the accused after the incident could not be ruled out. 22. The Supreme Court in Subhash Chand, supra, the judgment relied on behalf of learned Senior Counsel for appellant, was dealing with a case where a young girl aged 5 years was last seen at about 4 p.m. on 18.3.1991 and thereafter she did not return home. Kishori Lal (PW4) informed her father BD (PW2) at about 7.25 a.m. on 19.3.1991 that dead body of a girl was lying near Mohalla Basera on the outskirts of Village Kotputli. Father rushed to the place only to find that the dead body was of none else than his own daughter. Blood was oozing out from her mouth and private parts and a noose was also found around her neck. In the postmortem report, it was found that the victim was brutally ravished and thereafter killed. There was no direct evidence, but circumstantial evidence against the accused Subhash Chand was that of (i) last seen together, (ii) abnormal conduct of the accused, (iii) recovery of underwear and baniyan, which was found to be stained with semen and blood Group B which was also the blood group of the deceased, (iv) false plea of alibi; and (v) accused absconding since the date of offence. The trial court convicted the accused Subhash Chand for offence u/s. 302 IPC and also for offence u/s. 376(2)(f) IPC. In that also, Shalu (PW7) aged 4 years was cited as the witness of last seen, who stated that she and her cousin Phulka went along with deceased to purchase balloon from the shop of one Goma. While returning, the accused told deceased that her feet were mud stained and that he would wash her feet and saying so, he took deceased inside his house leaving behind the other two girls. Her testimony was relied by the learned trial court as the evidence of last seen to convict the accused. While returning, the accused told deceased that her feet were mud stained and that he would wash her feet and saying so, he took deceased inside his house leaving behind the other two girls. Her testimony was relied by the learned trial court as the evidence of last seen to convict the accused. The Supreme Court held that to constitute evidence of last seen together, the evidence must definitely permit an inference being drawn that the victim and the accused were seen together at a point of time in close proximity with the time and date of the commission of crime. Such an inference could not be drawn from the statement of Shalu. Her testimony, even if taken at its face value, does not constitute such a circumstance as to draw an incriminating inference against the accused and connect him with the crime. It was held that the death of girl was a blind murder and the police was clueless about the likely offender. The police appears to have embarked upon a search akin to a combing operation and in that process several suspected characters were called and interrogated, including the accused appellant but he was not detained and sent back, whereafter he absconded. The blood stains found on the underwear of the accused were held to be inconsequential because the blood sample of the accused was not collected and, therefore, not grouped. The possibility of blood being of the accused himself could not be ruled out. The Supreme Court also did not find the alleged abnormal conduct of the accused, false plea of alibi set up by him and his absconding after the incident as sufficient grounds to hold him guilty and, therefore, overturned the judgment of conviction passed by the trial court and affirmed by the High Court and acquitted the accused. 23. The analysis of the evidence that we have made above would clearly show that there are several loopholes in the story of the prosecution and that the chain of circumstances sought to be proved by the prosecution against the accused has several missing links. It would therefore not to be safe to sustain conviction of the accused-appellant solely on the basis of such kind of evidence. 24. In view of above discussion, the present appeal succeeds and is hereby allowed. It would therefore not to be safe to sustain conviction of the accused-appellant solely on the basis of such kind of evidence. 24. In view of above discussion, the present appeal succeeds and is hereby allowed. The impugned judgment dated 11.05.2009 convicting the accused-appellant for offence under Sections 302, 376(2)(F), 366(A), 363 & 201 IPC is set aside. The accused-appellant Gopal Sharma is acquitted of all the charges. He is in jail for last more than nine years and five months. If not required to be detained in connection with any other offence, he may be released forthwith. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Gopal Sharma 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, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.