JUDGMENT : Sanjay Kumar Gupta, J. 1. Feeling aggrieved of the impugned judgment dated 28.08.2012 passed by the learned Sessions Judge, Udhampur in case FIR No.40/2010 registered with Police Station Udhampur for the offences punishable under Sections 366/376-G/302/201/34 RPC, whereby acquitting the respondents, State has preferred the instant acquittal appeal. 2. The prosecution case, in brief, is that on 03.10.2008 source information was received in Police Station, Udhampur that an unidentified decomposed dead body of a woman was lying in a water channel near T-Morh Udhampur. Since the death was found to have taken place in suspicious circumstances so Report No.22 was entered in Daily Diary dated 03.10.2008 and inquest proceedings in terms of Section 174 Cr.P.C. were initiated by ASI Madan Lal. He proceeded on spot, prepared the sketch map of the place of recovery of dead body. A Farad Surat Hall was prepared and dead body was sent for postmortem to District Hospital Udhampur. On 04.10.2008 dead body was identified to be that of Smt Makhno Devi D/o Devi Chand. A Board of Doctors conducted the postmortem of the deceased. The wearing apparels including blood/semen stained Shalwar of the deceased were seized and sealed. The statements of witnesses were recorded in terms of Section 175 Cr.P.C. Thereafter the inquest proceedings were entrusted to Sh. Manoj Dhar SI, on 04.10.2008 and finally to Ayaz Ahmed Sheikh Dy.SP on 25.09.2009. He dispatched the Shalwar of the deceased to FSL. The report was received from FSL and as per the FSL report and statement of one Parshotam Kumar, it was found to be a case of rape and murder. So a case u/s 376/302/34 RPC was registered and investigation was handed over to Padamdev Singh SI. He seized the documents and arrested accused Rajan Kumar on the basis of suspicious u/s 54 Cr.P.C. on 11.02.2010. During investigation, he confessed that he along with other accused, committed rape upon the deceased against her wish and thereafter killed her by throwing down the bridge in a water channel. The confessional statement of the accused was recorded and all the accused were arrested. On the basis of confession so made the place of occurrence was identified. Identification parade of accused Pritam Kumar was conducted through PW Salim in presence of Executive Magistrate Ist Class. The confessional statement of the accused was recorded and all the accused were arrested. On the basis of confession so made the place of occurrence was identified. Identification parade of accused Pritam Kumar was conducted through PW Salim in presence of Executive Magistrate Ist Class. Statements of witnesses were recorded in terms of Section 164-A Cr.P.C. and u/s 161 Cr.P.C. The blood samples of accused were collected for DNA test and forwarded to CFSL Hyderabad. During investigation it was found that on 25.09.2008 at about 7.30 P.M. the deceased was walking on road side near T-Morh Udhampur. Accused No.1 forcibly kidnapped her towards a secluded place where all the accused gang raped her and thereafter killed her by pushing her down the nallah. The Cell Phone and purse of the deceased was taken by accused Pankaj Singh. It also came to the force during investigation that the deceased had met PW Vijender Singh alias Deepak on 25.09.2009 in Udhampur Market, who asked his friend Rakesh Rana to drop the deceased on his motor cycle at Umara Morh. Thereafter Vijender rang the deceased on her cell phone No.9858035096 from his cell phone No.9906319850 but he only heard the screams of the deceased where the deceased could not be traced alive. After conclusion of the investigation it was found that accused had committed offences u/s 302/376-G/366/201/34 RPC and accordingly charge sheet found its way to the Court. Accused were charge-sheeted for afore mentioned offences and pursuant to their pleading not guilty, prosecution examined as many as 37 witnesses to support the charges. Accused did not produce any evidence. Court below after conducting full trial acquitted the accused on the ground that prosecution failed to prove its case beyond reasonable doubts. 3. We have considered the arguments of learned counsel for State as well as respondents and gone through the evidence on record, and judgment of Court below. 4. The scope of power of appellate court in case of acquittal appeal has been highlighted by Apex Court in case titled ‘Muralidhar alias Gidda & anr. v State of Karnatka’ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014] reported in AIR 2014 SC 2200 , which read as under :- “10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... v State of Karnatka’ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014] reported in AIR 2014 SC 2200 , which read as under :- “10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years. 11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons. 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. In ‘Ghurey Lal v State of U.P.’ (2008) 10 SCC 450 , the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above.” 5. Before re-appreciating the whole evidence on record, the brief resume of the prosecution evidence is as under:- PW Anil Dhobi has stated that accused are not known to him. On 25.09.2008 he was sitting on his shop at T-Morh at about 7 P.M. He closed his shop and came out to find some army men standing there. Before re-appreciating the whole evidence on record, the brief resume of the prosecution evidence is as under:- PW Anil Dhobi has stated that accused are not known to him. On 25.09.2008 he was sitting on his shop at T-Morh at about 7 P.M. He closed his shop and came out to find some army men standing there. In the mean time a person came on a Motor Cycle and talked to army men. He was pointing towards the adjacent nallah. He (witness) also enquired from the said person who told him that he found two men taking a woman towards nallah. Since it was too dark. They tried to search out the men but they could not find any one around. ASP Anil Mangotra was informed. In the mean time one of his employees PW Salim and Motor cyclist went in search of the kidnappers. He went to his shop. Ten minutes after he came back and found a number of people had gathered there but till then police had not come on spot. He again telephonically informed ASP and left for his home. 8/10 days after he came to know that the dead body of a woman had been recovered from the nallah. Seven months after this incident his statement was recorded by police. In cross examination he says that he does not know as to how the crime was committed. The dead body was not recovered in his presence. PW Vijander Kumar has stated that deceased was known to him. On the day of occurrence deceased came to his shop at Gole Market. Since it was too late, she asked for some lift to Umara Morh. He asked his friend Rakesh Rana to drop the deceased on his Motor Cycle at Umara Morh. After 5/7 minutes Rakesh Rana came back after leaving the deceased near Petrol Pump at Umara Morh. He rang the deceased on her Cell Phone to know about her location, she replied that she was about to reach her home. Immediately thereafter he heard screams of the deceased on the cell phone and the line got disconnected. He rang her again but nobody picked up the telephone. One hour after Vinod Kumar Abrol came to him and asked about the deceased. Immediately thereafter he heard screams of the deceased on the cell phone and the line got disconnected. He rang her again but nobody picked up the telephone. One hour after Vinod Kumar Abrol came to him and asked about the deceased. He told him that deceased had come to him but she was dropped back at her home, whereafter her screams were heard on the telephone. Vinod Abrol left to locate the deceased who could not be found at her home. 7/8 days after the brother of the deceased told him that a dead body has been found at Umara Morh. He also went there to identify the dead body. The dead body was found in hospital. He identified the clothes of the deceased. Police inquired about the deceased from hin. The Sim Card in the cell phone of the deceased was owned by him which was issued by Airtel cellular company. In cross examination the witness has stated that deceased was running a beauty Parlour and was friendly to him. The day on which the deceased went missing he had installed a DTH dish in her home in the morning. He was willing to marry the deceased. He was interrogated for 5/7 days by police. He did not lodge any report about the incident. He saw the deceased for the last time when he asked his friend Rakesh Rana to drop the deceased at her residence. PW Rahul Kumar has stated that he does not know anything about the occurrence. The witness has been declared hostile by prosecution. In cross examination by PP he has stated that his statement was recorded before the Magistrate in presence of SHO and Munshi of the police station. He gave the statement on the direction of the police. In cross examination by defence he has stated that police detained him for 10 days. He was released only after he deposed before the Magistrate us 164-A Cr.PC. PW Salim has stated that in 2008 he was working at the shop of Anil Dubey at T-Morh Udhampur. Two years before at about 7 P.M he came out of the shop and found an army man namely Parshotam coming on a Motor Cycle. He told him that a person having long hair has taken a girl forcibly. PW Salim has stated that in 2008 he was working at the shop of Anil Dubey at T-Morh Udhampur. Two years before at about 7 P.M he came out of the shop and found an army man namely Parshotam coming on a Motor Cycle. He told him that a person having long hair has taken a girl forcibly. The person tried to trace out the boy and the girl but he could not do so due to darkness. One week after police inquired from him about the incident. A dead body was recovered from the nearby nallah after one week. PW Chander Mangotra has stated that on 23.02.2010 he had gone to Police Station, Udhampur in connection with some work. A boy was found in the lockup. A Magistrate was also there. The boy was asked to identify nine persons. He identified accused Pritam Kumar. He was asked to sign a paper which he signed. PW Shakuntla Devi has stated that on 30.10.2008 she alongwith ASI Madan Lal and constable Jyoti Parkash went to the place of recovery where from a dead body was found. On the search of the dead body a Chain and a locket was found. A memo Ext.P-19 was prepared on spot. PW Tajinder Mohan has stated that on 06.09.2010 a police constable came to him in Gole Market and told him that he was summoned by SHO. At 6 P.M he went to police station. A black purse was shown to him for identification which was a ladies purse. He identified the purse to be that of deceased. The purse had been purchased by him for deceased. PW Parshotam Kumar has stated that he does not know accused. On 25.09.2008 he came from Chinar to Capri on his Motor Cycle. At T-Morh a girl was seen by him walking on road side. She was talking on her cell phone. The girl was known to him. In the mean time a boy came on a motor cycle. He lifted the girl and went towards nallah. He went to the nearby press and informed the people there that a girl had been kidnapped by a boy. The shop keeper informed the police. Half an hour after the police came on spot. Police conducted the search but could not find anything. Thereafter he went to his home. The body of that girl was found some time after. He went to the nearby press and informed the people there that a girl had been kidnapped by a boy. The shop keeper informed the police. Half an hour after the police came on spot. Police conducted the search but could not find anything. Thereafter he went to his home. The body of that girl was found some time after. He told the police that kidnapper was having long hair. PW Dr. G.L. Dogra has stated that on 04.10.2008 a board of doctors was constituted for conducting postmortem of the deceased. He was one of the board members. The dead body was decomposed with maggots. There was no apparent injury on the body. In his opinion the deceased had died due to cardio pulmonary failure secondary to drowning. The report Exp-MGL was correct. In cross examination he says that due to swelling and decomposition it was not possible to give opinion with respect to the condition of the vagina. PW Joginder Pal has stated that deceased was his sister, who was living in a rented accommodation at Umara Morh and was working in a shop at Chinar. She went missing on 25.09.2008. A search was carried out to trace her and on 03.10.2008 police recovered a dead body which was shifted to hospital. He and Deepu came to know about it and they went to hospital to identify the dead body but he could not identify it because the dead body was completely decomposed. Deepu identified the dead body on the basis of a black thread tied around the arm of the deceased. The dead body was handed over to them by police but the clothes of the deceased were retained. In August or September they came to know that the culprits have been arrested. Accused Pankaj recovered a black coloured purse near Kali Temple across the bridge. Subash and Deepu were also present at the time of recovery. The purse was seized through a memo Ext.P-22/2. In cross examination the witness has stated that Deepu was also arrested by police in connection with this case and remained in custody for about one month whereafter he was let off for the reasons not known. He was told by Deepu that deceased had not gone to her work place for 5/6 days. He launched a search for her but did not lodge any report in police. He was told by Deepu that deceased had not gone to her work place for 5/6 days. He launched a search for her but did not lodge any report in police. He and Deepu were called by SHO to police station and were told that some articles have been recovered. PW Subash Chander states that deceased was his sister who was living at Umara Morh in a rented room. She was working on the shop of Bittu. In September, 2008 he was informed by his brother Joginder Pal that deceased was missing since 5/6 days and a dead body has been recovered from a nallah but he could not identify the dead body because it was swollen. He later on identified the dead body on the basis of the thread tied around the arm of the deceased. The clothes of the deceased were seized and after postmortem the dead body was handed over to them. Accused other than Pankaj were arrested by police after about one and half year. Accused Pankaj Singh recovered a Purse from a wall down stairs near T-Morh and handed it over to police which was seized by Police accordingly. In cross examination he says that PW Vijinder was not arrested but was being summoned to police station during investigation. PW Ved Parkash has stated that on the orders of Tehsildar he went to hospital where SHO was also present. Blood sample of accused Pankaj Singh was taken in his presence for DNA testing. PW Joti Parkash has stated that in October, 2008 a phone call was received in Police Station whereafter he alongwith ASI Madan Lal went to Umara Morh where they found a dead body in a ditch. Lady constable Shankuntla Devi searched the clothes of the deceased where from a chain was found which was seized. PW Dr. Sanjay Sharma says that he examined Pankaj Singh on 31.07.2010 to ascertain whether he is capable of having sexual intercourse and after examination he issued a certificate Ext.PW6. PW Dr. Nisar Hussain Shah says that three sealed packets were received in FSL Srinagar through constable Sanjay Kumar. After conducting the tests he found that there was no poison in the contents examined by him and accordingly he prepared the report Ext.P-43. PW Chuni Lal says that deceased was working as a private employee near Umara Morh. She went missing for one week. After conducting the tests he found that there was no poison in the contents examined by him and accordingly he prepared the report Ext.P-43. PW Chuni Lal says that deceased was working as a private employee near Umara Morh. She went missing for one week. In the mean time a dead body was found. He went to hospital alongwith Subash but dead body could not be identified as it was decomposed. The dead body thereafter was identified by the mother of the deceased whereafter the dead body was handed over to the kin of the deceased. The clothes of the deceased were seized and sealed and the seal was given to PW Subash Chander. PW Chuni Lal ASI says that on 06.09.2010 accused Pankaj Singh arrested in case FIR No.40/10, was interrogated by SHO in his presence. ASI Bashir Ahmed was also there. Accused disclosed that he kidnapped the deceased near T-Morh and took her to a secluded place where she was raped by him and other accused forcibly and her mouth was ganged after she tried to make a noise. She fell unconscious. Thereafter they threw her down in a ditch and he took away her purse which he kept in a wall near the bridge. The purse was recovered and thereafter disclosure statement and recovery memo was prepared. The accused made disclosure statement in Dogri language. PW Pritpal Singh has stated that he delivered the blood sample of accused Pankaj Singh in CFSL Hyderabad on 17.09.2010 for DNA testing. PW Shanti Saroop states that accused Rajan Kumar alias Ranju was in custody and on 12.02.2010 a police party took him to T-Morh. He identified the place of occurrence where he other accused had raped and killed the deceased. The place of occurrence was photographed. PW Shallu Devi has stated that deceased was living in her house as a tenant for 15/20 days in 2008. She left her room on 25.09.2008 in the evening but did not come back. Next day Vinod Abrol with whom the deceased was working inquired about her and thereafter Deepak also came and asked about the deceased. One week after a dead body was found near T-Morh. Deepak and she rang on the cell phone of deceased but there was no reply. She does not know as to what happened. Next day Vinod Abrol with whom the deceased was working inquired about her and thereafter Deepak also came and asked about the deceased. One week after a dead body was found near T-Morh. Deepak and she rang on the cell phone of deceased but there was no reply. She does not know as to what happened. Police searched her room where from a letter and a five hundred rupees note was recovered. PW Jagpal Singh has stated that deceased was living in his house as a tenant in September 2008. She lived there for 15/20 days. On 25/26 September 2008, she left her room and did not come back. Next day PW Vinod came to his home and inquired about the deceased. One week after the dead body of the deceased was found near T-Morh, 4/5 days after police came to his home and searched the room of deceased where from they recovered a bag. In cross examination witness says that police recovered a bag which was black in colour and looked like a purse from the room of the deceased. PW Darshan Kumar says that on 04.10.2008 he went to hospital alongwith Subash Chand. The dead body of the deceased was identified there. Postmortem was conducted. Clothes of the deceased were seized and sealed on spot. PW Rakesh Rana has stated that on 25.09.2008 at about 5.30 P.M, he went to Vijinder who was running a Kiosk near Gole market Udhampur. Deceased was also there. Vijinder told him to drop the deceased at her home. He picked up the deceased on his motor cycle and dropped her at Umara Morh and came back to Vijinder. 5/10 days after Vijinder met him again and told him that deceased was missing. 4/5 days after he again told him that deceased was dead. The sim No. 9858035096 was owned by him. It was taken by Vijinder 3/4 days before who passed it on to deceased. The deceased was not having any purse etc with her, when he dropped her at Umara Morh near Petrol Pump. PW Obeer Singh says that on 03.10.2008 he took some Photographs of the dead body lying in the ditch and thereafter on 04.10.2008 he took some photographs in the hospital. On 12.02.2010 he again took the photographs of the place of occurrence identified by accused. PW Obeer Singh says that on 03.10.2008 he took some Photographs of the dead body lying in the ditch and thereafter on 04.10.2008 he took some photographs in the hospital. On 12.02.2010 he again took the photographs of the place of occurrence identified by accused. PW Kapoor Chand says that a dead body was found in a ditch near T-Morh. It was brought out of the ditch. Shankuntla Devi searched the dead body and recovered a locket from her which was seized. PW Dr.Vijay Kumar has stated that on 04.10.2008 postmortem of deceased was conducted in District Hospital by a board of doctors including him. The postmortem report Ext.MGL on record bears his signatures apart from the signatures of other doctors. On 19.02.2010 he also examined accused Subash Chander, Jagdish Singh, Rajan Kumar and Preetam Chand to ascertain their potency and after examination he issued the reports Ext.P-47, Ext.P-47/I to Ext.P-47/III. PW Vinod Abrol says that deceased was working as a sales girl in his shop. She was going to marry a boy namely Deepak and so she left the job. He and Deepak went to search the deceased in her rented room near T-Morh but she was not found there. 5/10 days after a dead body was found in a ditch. PW Rajinder Singh says that on 25.02.2010 an identification prade was conducted in Police Station, Udhampur. Nine persons were kept in a line and PW Salim identified one of them as accused Pritam Kumar. Form No.161 was prepared which was attested by him. Blood samples of other accused were taken in hospital in his presence. PW Ujagar Singh says that he was posted as Naib Tehsildar Udhampur. On 03.10.2009 a sealed packet was brought to him by Dy.S.P Ayaz Sheikh. The packet was re-sealed by him and authority letter Ext.P-38 was issued. PW Sudershan Kumar says that he was posed as Patwari of village Umara and he prepared a sketch map of the place of occurrence which stands exhibited as Ext.P-30. PW Balwant Singh says that he and Patwari Sudershan Kumar prepared a sketch of place of occurrence which was in survey No.708. The Khasra Girdawri was also prepared. PW Sudesh Sharma says that he took the photographs of accused in district Hospital Udhampur when their blood sample were taken. PW Balwant Singh says that he and Patwari Sudershan Kumar prepared a sketch of place of occurrence which was in survey No.708. The Khasra Girdawri was also prepared. PW Sudesh Sharma says that he took the photographs of accused in district Hospital Udhampur when their blood sample were taken. PW Mohd Farid says that on 04.10.2008 a sealed packet was produced before him which was re-sealed by him. PW Davinder Singh says that on 11.02.2010 the record of inquest proceedings was seized by Padamdev Singh Sub Inspector through a seizure memo Ext.P-36. Accused Rajan Kumar was interrogated by the I/O who confessed that on 25.09.2008 he and other accused raped the deceased forcibly and thereafter threw her down in a ditch. He identified the place of occurrence. His confession Ext.P-36/1 was recorded. PW Dr. Arvind Kumar Bhardwaj says that he examined the blood group of Pritam Kumar which was found to be B positive . On the same day he examined the blood group of Subash Chander which too was B positive. Blood group of Jagdish Singh was O positive and that of Rajan Kumar was B negative. The blood samples were dispatched for DNA analysis. The report Ext.P-44, Ext.P-44/I to Ext. P-44/III were issued by him and are correct. PW Ayaz Ahmed Sheikh says that he conducted the inquest proceedings regarding the death of deceased which were earlier conducted by Sub Inspector Manoj Dhar. He dispatched the seized material to FSL Jammu. Recorded the statements of witnesses u/s 175 Cr.PC, obtained the postmortem report and FSL report. The Shalwar of deceased was blood/semen stained and on the basis of FSL reports, postmortem report, the statements of PWs Parshotam, Salim, Subash Chander, Shallu Devi, Jagpal and Vijinder he lodged the FIR Ext.P-48 and registered the case u/s 302/376/34 RPC and investigation was handed over to Sub Inspector P.D Singh. In cross examination he says that when received the inquest file there was no proof regarding the complicity of accused on record. He did not come across any suicide note on record, although reference was made by Subash Chander about the suicide note. PW Madan Lal states that on 03.10.2008 SHO Udhampur handed over a docket to him and asked him to retrieve the dead body from the ditch near the T-Morh. He alongwith photographer and some constables went on spot and recovered the dead body. PW Madan Lal states that on 03.10.2008 SHO Udhampur handed over a docket to him and asked him to retrieve the dead body from the ditch near the T-Morh. He alongwith photographer and some constables went on spot and recovered the dead body. Next day the postmortem was conducted. The dead body was identified by her brother and the dead body was handed over to her kin. PW Shagufta Akhtar says that a sealed packet was received in FSL Srinagar on 07.12.2008 which was forwarded by SSP Udhampur. A printed Shalwar allegedly stained with blood/semen was found in the packet. Human blood of group B and semen was detected on the Shalwar. The report Ext.P-42 bears her signature and is correct. PW Qasimdin says that on 13.09.2010 the blood samples were deposited by investigating officer in malkhana and alongwith a lady purse and a polythene bag. On 14.09.2010 the seized articles were sent to CFSL Hyderabad. PW Padam Dev Singh states that he conducted the investigation of case FIR No.40/10. He recovered the confession of accused Rajan Kumar, the identification memo of place of occurrence, the sketch map of the place of occurrence etc were prepared. Accused were arrested on the basis of confession of accused Rajan Kumar. Accused Pankaj Singh was absconding. Statements of witnesses were recorded in terms of Section 161 and 164-A Cr.PC. The revenue record was obtained. After completion of investigation it came to the fore that accused were involved in commission of offence us 366/376-G/302 RPC. Accused Pankaj Singh was still absconding and so charge sheet was laid in the court in his absence. In cross examination he says that accused Rajan Kumar was arrested on 11.02.2010 u/s 54 of Cr.PC on the basis of suspicion. PW Arvind Sambyal says that on 17.08.2010 accused Pankaj Singh was arrested and his custody was shifted for police investigation so that recovery of the cell phone and purse could be effected. On 06.09.2010 he made a disclosure statement about the ladies purse which was recovered lateron, on his disclosure statement. 6. Mr. Ravinder Gupta, learned Additional Advocate General, appearing on behalf of State, has submitted that the impugned judgment is contrary to law, against the facts of the case and has been passed in a mechanical manner without appreciating the circumstantial evidence and the other evidence available on record. 6. Mr. Ravinder Gupta, learned Additional Advocate General, appearing on behalf of State, has submitted that the impugned judgment is contrary to law, against the facts of the case and has been passed in a mechanical manner without appreciating the circumstantial evidence and the other evidence available on record. It is stated that the learned trial Court has failed to appreciate the prosecution evidence. The occurrence is proved and there is sufficient material on record to convict the respondents but the learned trial Court has not appreciated the law and facts of the case which has resulted into acquittal of the respondents. The prosecution had established the case against the respondents by adducing documentary as well as oral evidence, which in ordinary course of nature is sufficient to prove the guilt of the respondents. The respondents willfully and intentionally committed the crime for which they deserve to be punished. The important pieces of evidence have been ignored. The circumstances corroborated by medical report are sufficient proof of involvement of the respondents. With these submissions, learned State counsel has prayed that the instant acquittal appeal may be allowed and the impugned judgment be set aside. 7. Per contra, Mr. Sachin Sharma, learned counsel for the respondents, has supported the judgment of the learned trial Court submitting that it is based on appreciation of evidence available on record. It is further submitted that the confessional statement of the accused Rajan Kumar was recorded on 11.02.2010 after almost one & a half year of occurrence and was recorded in presence of PSI Ravinder Singh and PSI Rajesh Angral and no civil witness was associated. A person cannot be convicted on the basis of confession when there is deducible conclusion from the other evidence available on record about the commission of crime and without it, the confession of the co-accused cannot be treated as substantive evidence. 8. The perusal of whole story of prosecution, it is evident that it is based upon circumstantial evidence. Being a case based on circumstantial evidence, prosecution has to establish that the circumstance from which the conclusion of guilt is to be drawn are fully established and all the facts so established are consistent only with the hypothesis of guilt of the accused and are all of conclusive nature and tendency, and exclude every other hypothesis except the one proposes to be proved. The principles are well settled. The principles are well settled. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence are laid down in Sharad Birdhi Chand Sarda v. State of Maharashtra ( AIR 1984 SC 1622 ). It reads as follows: “The following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved” as was held by Apex Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: [SCC para 19, p.807:SCC (Cri) p.1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature . (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 9. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 9. In Padala Veera Reddy v. State of Andhra Pradesh & ors., [(1989) Supp (2) SCC 706], the principles are reiterated as follows; “(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 10. The same principles were reiterated in Bodhraj vs. State of Jammu & Kashmir ( 2002 (8) SCC 45 ), Bharat vs. State of Maharashtra ( 2003 (3) SCC 106 ), Jaswant Gir vs. State of Punjab ( 2005 (12) SCC 438 ), Reddy Sampath Kumar vs. State of Andra Pradesh ( 2005 (7) SCC 603 ), Deepak Chandrakant Patil vs. State of Maharashtra ( 2006 (10) SCC 151 ), State of Goa vs. Sanjay Takran ( 2007 (3) SCC 755 ) and Sattatiyya alias Satish Rajanna Kartalla vs. State of Maharashtra ( 2008 (3) SCC 210 ). 11. The evidence is to be appreciated in the light of the settled legal position. 12. The case of prosecution is that on 25.09.2008 at about 7.30 P.M. the deceased was walking on road side near T-Morh Udhampur. Accused No.1 forcibly kidnapped her towards a secluded place where all the accused gang raped her and thereafter killed her by pushing her down the nallah. 12. The case of prosecution is that on 25.09.2008 at about 7.30 P.M. the deceased was walking on road side near T-Morh Udhampur. Accused No.1 forcibly kidnapped her towards a secluded place where all the accused gang raped her and thereafter killed her by pushing her down the nallah. Circumstances on which case is based are confessional statement of one accused Rajan Kumar where he admitted commission of crime along with other accused; identification of accused Pritam Kumar who was found coming from the side of place of occurrence; disclosure statement of accused Pankaj Singh about purse of deceased and its recovery; seizure of blood/semen stained shalwar of deceased which was worn by her, when dead body was found and report of FSL in this regard. 13. With regard to first circumstance, Court below has held that confessional statement of accused Rajan Kumar has been recorded after more than one and half years of occurrence and no civilian has been associated. We have gone this aspect of matter; admittedly, it has been recorded after more than one and half years and it states that Rajan Kumar confessed that he committed rape on 25.9.2008 on the bank of ditch and threw dead body. As rightly held by Court below that as per Section 30 of Evidence Act admission by accused of his own guilt may afford some sanction, but it does not come as evidence in terms of section 3 of Evidence Act against co-accused. Confession of co-accused cannot be treated as substantial piece of evidence against co-accused. The law applied by learned Court below is correct. 14. With regard to second circumstance, PW Salim altogether was silent in his statement about the identification of Pritam Kumar and he did not support the prosecution case, at all accused. Another PW Chander Mangotra stated that one boy identified Pritam Kumar and PW Rajinder Singh stated that PW Salim identified accused Pritam Kumar but the main person PW Salim did not support the prosecution case as such the entire exercise of the prosecution regarding identification becomes futile. 15. With regard to third circumstance accused Pankaj Singh made an alleged disclosure statement on 06.09.2010 that he kept the ladies purse in a wall near T-Morh, which statement was recorded in presence of PW Mohd. Bashir and Chuni Lal, where after recovery was made in presence of PW Joginder Pal, Subash Chander, Mohd. 15. With regard to third circumstance accused Pankaj Singh made an alleged disclosure statement on 06.09.2010 that he kept the ladies purse in a wall near T-Morh, which statement was recorded in presence of PW Mohd. Bashir and Chuni Lal, where after recovery was made in presence of PW Joginder Pal, Subash Chander, Mohd. Bashir and Chuni Lal. PW Chuni Lal ASI said that recovery of purse was made first and thereafter disclosure statement and recovery memo was prepared. PW Jagpal Singh deposed that black colored purse was recovered by the police from the room of the deceased. PW Rakesh Rana last seen with the deceased when he allegedly dropped the deceased at Omara Morh stated that the deceased was not having purse with her. This circumstance, thus, was not proved by cogent means. 16. With regard to rest of circumstance, Court below has held that how could semen and blood stains would remain on the shalwar, if the dead body remained in the pool of water for about a week and the body was totally decomposed couple with the fact that said shalwar was sent to FSL after more than one year. The opinion of the expert from FSL Srinagar is refuted by the opinion of expert from CFSL Hyderabad. The blood samples of accused and Shalwar were sent to CFSL Hyderabad and the expert in his report says that no Semen could be detected on Shalwar. The FSL report of Hydrabad falsifies the report of FSL Srinagar. 17. Court below has also noted certain flaws in investigation, like DNA test conducted did not yield any result, that inquest proceeding started on 3.10.2008 and remained continued up to 11.2.2010 without any result, that Salwar was seized on 04.10.2008 and was sent to 07.12.2009 after more than one year, that mobile phone of deceased was recovered but not seized and some witnesses have stated that suicide note was seized by police, but not brought before court. All these facts are on record. 18. Mr. Ravinder Gupta, learned Addl. AG, has not been able to pinpoint any infirmity, which would call for the indulgence of this Court. We are also of the view that the impugned judgment does not suffer from any infirmity apparent on record, which would warrant indulgence of this Court. 19. Law is clear that prosecution has to prove its case beyond reasonable doubts. AG, has not been able to pinpoint any infirmity, which would call for the indulgence of this Court. We are also of the view that the impugned judgment does not suffer from any infirmity apparent on record, which would warrant indulgence of this Court. 19. Law is clear that prosecution has to prove its case beyond reasonable doubts. Burden to prove prosecution version is wholly upon the prosecution. The courts while appreciating the evidence in criminal cases have to see the degree of proof is maximum than that of civil case. The evidence produced by prosecution should be legally admissible. If there comes the slightest doubts regarding the involvement of accused then court should not go on convicting the accused. 20. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. Every case has its own facts. The law does not permit the court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. 21. After rescanning the entire case of the prosecution, We do not find any reason, much less compelling and substantial reason, which would warrant indulgence of this Court for the purpose of disturbing the well reasoned judgment already recorded by the trial Court, which is based on appreciation of entire evidence on record. 22. Since we do not find merits in the appeal, the same is dismissed.