JUDGMENT : SUDHIR AGARWAL, J. 1. Both these appeals under Section 374 (2) of Criminal Procedure Code (hereinafter referred to as "Cr.P.C.") arise out of judgment and order dated 07.09.2002, passed by Sri Sangam Lal, Additional Sessions Judge/Fast Track Court No.5, Meerut, in Sessions Trial No. 590 of 1999. Both the appeals have been heard together and are being decided by this common judgment. 2. Criminal Appeal No. 3803 of 2002 has been filed by accused-appellant Mukesh whereas Jail Appeal No. 7419 of 2017 has been filed on behalf of accused-appellant Sunder. 3. By the impugned judgment dated 07.09.2002 accused appellants Sunder and Mukesh have been convicted under section 302 I.P.C. and sentenced to undergo rigorous imprisonment (in short "R.I.") for life along with a fine of Rs. 10,000/- each. In the event of default in payment of fine, they have to further undergo additional imprisonment of six months each. Both the appellants have also been convicted and sentenced under section 377 I.P.C. to undergo ten years' R.I. besides a fine of Rs. 5,000/- each and in default in making payment thereof, they have to undergo additional imprisonment for six months. Out of the amount of fine, so recovered half shall be payable to Shambhu Singh, father of deceased as compensation. All sentences have been directed to run concurrently. 4. Factual matrix of the case, as evident from First Information Report (hereinafter referred to as "FIR), Ex.Ka-1, lodged by P.W. 1 Informant Shambhu Singh and evidence available before Trial Court is that on 02.03.1999 when Informant's son Kallu, aged about 12 years, did not return home till late evening, Informant and his another son Momin made a search for him. At about 8.00 P.M., Dhoom Singh son of Amar Singh and Ram Swaroop son of Phool Singh informed Informant, PW-1, that accused/appellants, Sundar son of Gopi Rajpoot and Mukesh son of Kripal Rajpoot, residents of Informant's village, were seen with Kallu at about 6.00 P.M., going towards Bazar from the dairy of Ganga Ram son of Chandaru, situated in the same village. At about 9.00 P.M., the same day, accused Mukesh and Sundar met Informant and his son Momin near Kali temple and on a query, accused/appellants told that they did not take away Kallu nor Kallu was with them. At about 9.00 P.M., the same day, accused Mukesh and Sundar met Informant and his son Momin near Kali temple and on a query, accused/appellants told that they did not take away Kallu nor Kallu was with them. Thereafter Informant, his son Momin and other family members made a search in the village and nearby places in the night but Kallu could not be traced. In the morning of 03.03.1999, at about 4.30 A.M., when P.W. 1, Informant and Ram Prasad son of Raghuveer went to Rawat's Patti and reached the street, after the house of Ramu son of Nain Singh, they saw Mukesh and Sundar, coming out of a newly constructed house of Mukesh, carrying dead body of Informant's son Kallu and proceeding towards west. When Informant and Ram Prasad started running and approached them, objected and tried to catch hold of them, accused Mukesh and Sundar threw dead body on the ground and tried to flee away. However, Sundar was caught on the spot but Mukesh succeeded in making his escape good. Hearing noise, a large number of men and women gathered on the spot. Accused Sundar told that he and accused Mukesh had done immoral act with Kallu and on apprehension of exposure of the offence, they killed Kallu by strangulating his neck with T-shirt of accused Sundar. While they were going to dispose of Kallu's dead body, accused Sundar was caught and Mukesh fled away. Dead body of Informant's son was lying on the spot and Sundar was caught by public. Written report Ex.Ka-1 was scribed by Suraj Pal, resident of village Jeetpur, P.S. Daurala, District Meerut. 5. On the basis of written report Ex.Ka-1, F.I.R. was registered as Case Crime No. 82 of 1990, under Sections 302/201/377 I.P.C., Police Station Sardhana, District Meerut on 03.03.1999 at 10.15 A.M. Immediately, after registration of F.I.R., investigation was undertaken by PW-7, S.I. M.P. Singh Solanki, who was then incharge of Police Station. F.I.R. was written by Constable Akhtar Khan and endorsement thereof was made in the G.D. PW-7 rushed to the place of occurrence where dead body of deceased Kallu was lying. He prepared inquest, Ex.Ka-6 on the spot; relevant papers i.e. Photo Nash Ex.Ka-7, Challan Nash Ex.Ka-8, letters of requisition Ex.Ka-9 and Ex.Ka-10, requesting Chief Medical Officer, Meerut for examining injuries, cause of death and post mortem of the deceased. 6. He prepared inquest, Ex.Ka-6 on the spot; relevant papers i.e. Photo Nash Ex.Ka-7, Challan Nash Ex.Ka-8, letters of requisition Ex.Ka-9 and Ex.Ka-10, requesting Chief Medical Officer, Meerut for examining injuries, cause of death and post mortem of the deceased. 6. Autopsy on the dead body of deceased Kallu was conducted on 04.03.1999 at 3.00 P.M. by PW-5 Dr. D.C. Jain. According to him, deceased was of average body built and aged about 12 years; about 11/2-2 days had passed since his death and rigor mortis had passed through all over the body. PW-5 found following ante mortem injuries on the dead body of Kallu: 1. Multiple abraded contusion in an area of 11 cm x 5 cm on both side of front of neck, middle and upper part. 2. Abrasion 2.5 cm x 0.5 cm on the back of left elbow. 3. Abraded contusion cm x 2 cm on the left side of forehead, 4 cm above the left eye. 4. Abrasion 0.5 cm x 0.3 cm on the posterior wall of anus. (emphasis added) 7. On internal examination, membrane and brain were found congested; pleura, larynx and trachea were congested; hyoid bone was fractured on right side; both the lungs were congested; heart's right side contained blood, weight 180 grams; stomach and small intestine contained about 200 grams of partially digested food; large intestine contained faucal matters and gases; gall bladder congested, weight 800 grams; spleen congested, weight 90 grams; kidneys congested each weighing 109 grams and urinary bladder was empty. According to doctor, death was caused due to asphyxia as a result of strangulation. 8. Pw-5 thereafter handed over one sealed bundle containing one underwear and one shirt to the Constables who brought the dead body. One sealed slide packet containing two slides of smear taken from the anal canal of deceased was also handed over to the Constable for pathological examination. 9. After concluding investigation, Investigating Officer PW-7 submitted charge sheet Ex.Ka-16 under Sections 302/201/377 I.P.C. in the Court of Chief Judicial Magistrate, Meerut. Case was committed to the Court of Sessions vide Chief Judicial Magistrate's order dated 09.07.1999, fixing 23.07.1999 for appearance of accused before Sessions Court. 9. After concluding investigation, Investigating Officer PW-7 submitted charge sheet Ex.Ka-16 under Sections 302/201/377 I.P.C. in the Court of Chief Judicial Magistrate, Meerut. Case was committed to the Court of Sessions vide Chief Judicial Magistrate's order dated 09.07.1999, fixing 23.07.1999 for appearance of accused before Sessions Court. Case was registered as Sessions Trial No. 509 of 1999 and transferred to the Court of IIIrd Additional Sessions Judge, Meerut, who framed charge against accused/appellants as under:- "Firstly: That you in the night between 2nd and 3rd March, 1999 at some time in village Rardhana, within the circle of P.S. Saradhana, District Meerut did commit murder by causing the death of Kallu intentionally and knowingly and thereby committed an offence punishable u/s 302 I.P.C. and within the cognizance of this court of Sessions. Secondly; That you at the said time and place intentionally committed unnatural offence (Sodomy) upon Kallu and thereby committed an offence punishable u/s 377 I.P.C. and within the cognizance of this court of Sessions. And I hereby direct that you be tried by this court of Sessions on the aforesaid charges". 10. Both the accused-appellants pleaded not guilty and claimed to be tried. 11. In support of its case, prosecution examined in all, ten witnesses. Informant PW-1 Shambhu, PW-2 Ram Prasad, PW-3 Dhoom Singh and PW-4 Yashpal are witnesses of facts. Remaining six witnesses are formal. PW-5 Dr. D.C. Jain had conducted autopsy on the dead body of deceased Kallu and has proved post mortem report Ex.Ka-5. PW-6 Constable Sharafat Ali along with Constable Asif Ali had taken dead body of deceased Kallu to the mortuary for post mortem. PW-7 M.P. Singh Solanki is the Investigating Officer who has proved inquest Ex.Ka-6, Photo Nash Ex.Ka-7, Challan Nash Ex.Ka-8, Letters to Chief Medical Officers Ex.Ka-9 and Ex.Ka-10 written by Investigating Officer making request for conducting post mortem examination. He has also proved site plan Ex.Ka-4 of the place whereat dead body of deceased was found lying; recovery memo Ex.Ka-2 in respect of T-shirt by which, deceased's neck was strangulated and recovery memo Ex.Ka-3 in respect of blood stained quilt and bed sheet recovered from newly constructed house of accused Mukesh. Copy of extract of case diary containing inspection note prepared at the spot and Ex.Ka-4 recovery memo in respect of sample of piece of cloth from underwear of accused Sundar have also been proved by him. Copy of extract of case diary containing inspection note prepared at the spot and Ex.Ka-4 recovery memo in respect of sample of piece of cloth from underwear of accused Sundar have also been proved by him. According to him accused Mukesh had surrendered in Court. Formal witness PW-8 is Constable Akhtar Khan who had lodged F.I.R. and prepared chick report on the basis of written F.I.R. Ex.Ka-1. He has proved chick report Ex.Ka-13 and its carbon copy Ex.Ka-14 as also Ex. Ka-15 copy of extract of General Diary. PW-9 SI Umesh Nath Mishra, is subsequent Investigating Officer who conducted investigation since 12.05.1999 consequent upon transfer of previous Investigating Officer PW-7 S.I. M.P. Singh. PW-9 has proved charge sheet Ex.Ka-16. PW-10 M.C. Agarwal is Pathologist who had examined slides containing smear taken from anal canal of deceased. He has proved pathological report Ex.Ka-17 prepared by him. 12. Thereafter, statements of accused-appellants under Section 313 Cr.P.C. were recorded. Both have denied the prosecution case stating the same to be false and claimed to have been implicated falsely due to party faction in the village. 13. On appraisal of evidence available on record and hearing counsel for the parties, learned 5th Additional Sessions Judge, Meerut found accused-appellants, Sundar and Mukesh guilty of offences under Sections 302 and 377 IPC and convicted and sentenced them as mentioned above. Trial Court has recorded its findings as under :- (i) Postmortem report proved cause of death due to Asphyxia caused by strangulation and possible time of death is night of 2/3rd March, 1999. (ii) Injury-4 could have caused on account of unnatural cohabitation, therefore, death of deceased Kallu after unnatural cohabitation and by strangulation has been proved. (iii) Dead body of deceased was recovered in the early morning of 03 March, 1999, when Mukesh and Sunder were trying to dispose it of and Sunder was caught on spot. (iv) PW-3 Dhoom Singh has proved factum of "last seen" of deceased along with Mukesh and Sunder in the evening at around 06:00 PM in the market. (v) Shirt of Sunder was found on the neck of deceased and he proved Ex. A-3 Fard of T-shirt recovered in his presence. (vi) Though in forensic seminal examination no evidence could be found since slide was prepared after 24 hours but postmortem report corroborated by Dr. D.C. Jain, PW-5 proved unnatural cohabitation with deceased and strangulation causing his death. (v) Shirt of Sunder was found on the neck of deceased and he proved Ex. A-3 Fard of T-shirt recovered in his presence. (vi) Though in forensic seminal examination no evidence could be found since slide was prepared after 24 hours but postmortem report corroborated by Dr. D.C. Jain, PW-5 proved unnatural cohabitation with deceased and strangulation causing his death. (vii) Statement of prosecution witnesses were not found in material contradiction with their statements recorded under Section 161 Cr.P.C. by Investigating Officer. 14. Trial Court, therefore, held that defence failed to show any material contradiction in evidence led by prosecution which proved offence against accused-appellants beyond reasonable doubt and even in defence, accused-appellants did not adduce any evidence to show any infirmity in otherwise credible evidence of prosecution. 15. Feeling dissatisfied with conviction and sentence, accused-appellant, Mukesh has preferred Criminal Appeal No. 3803 of 2002 whereas Jail Appeal No. 7419 of 2007 has come up before this Court on behalf of accused Sundar. 16. We have heard Shri I.K. Chaturvedi, learned counsel for appellant Mukesh in Criminal Appeal No. 3803 of 2002. Jail Appeal No. 7419 of 2007 was argued by Sri Ajay Kumar, Amicus Curiae on behalf of appellant Sundar. Sri Ratan Singh, learned Additional Government Advocate has appeared for the State in both the appeal and advanced arguments on behalf of State. 17. Sri I.K. Chaturvedi, Advocate appearing in Criminal Appeal No. 3803 of 2002 on behalf of appellant, Mukesh contended that there is no eye witness to prove guilt of accused-appellant Mukesh. He was also not found involved in the incident. Entire prosecution story is based on circumstantial evidence. Last seen theory and alleged recovery of dead body by Informant when according to Informant, both accused-appellants were trying to dispose of dead body and carrying it in the early morning at around 04:30 AM and Informant raised noise and tried to catch both accused-appellants but according to Informant Mukesh escaped while Sunder was caught is wholly improbable, untrue and concocted. It is argued that evidence of Informant that after making search in the night, he went to his house and thereafter again in the early morning at about 04:30 AM thought to visit newly constructed house of appellant Mukesh along with Ram Prasad son of Ravi is wholly improbable, inasmuch as, neither at such point of time, there could have been any occasion to come out of own residence of Informant in search of Kallu (deceased) nor there was any reason to come to house of Mukesh in the Wee hours straightway. Aforesaid statement is nothing but show an element of chance implicit therein, without any corroborating material, hence a concocted story, There was/is no credible evidence to implicate accused-appellant Mukesh. He submitted that even otherwise when Informant raised noise and according to him, village people gathered, there could not have been any possibility of appellant, Mukesh escaping from the scene. It is also improbable that in the Wee hours, at around 04:30 AM on 03.03.1999, when winter session is not completely out and summer session has not arrived, and normally it is sufficiently cold, at that time large number of villagers would have been on the road who could have gathered on hearing noise raised by Informant and Ram Prasad Singh son of Raghuveer. Further it is also improbable to believe that accused-appellant who had committed crime of murder in the night, would have waited till early morning and when villagers must have come out on the road, to attempt to dispose of dead body of deceased Kallu and that too by carrying dead body on their shoulders. Even a person of lesser prudence and intelligentsia cannot be expected to behave in such a childish manner. Entire story based on fallacious evidence is clearly incredible, improbable and could not have been believed at all. He further argued that alleged shirt of Sunder was not proved by any one. Informant admitted that he fell unconscious seeing dead body of Kallu. If that is so, who and how caught Sunder is not proved. In fact, according to learned counsel, even arrest of Sunder on spot was not proved. No evidence has come as to what was the arrangement of light on the street. There is no forensic examination to implicate accused-appellants in the alleged offence and even nature of injuries do not support prosecution case. FIR is highly belated. In fact, according to learned counsel, even arrest of Sunder on spot was not proved. No evidence has come as to what was the arrangement of light on the street. There is no forensic examination to implicate accused-appellants in the alleged offence and even nature of injuries do not support prosecution case. FIR is highly belated. House of appellant Mukesh is about 2 kms from place where dead body, allegedly was found. In the entirety of facts, prosecution has miserably failed to prove its case beyond reasonable doubt, therefore, Court below has erred in law in holding appellants guilty. 18. Learned counsel appearing on behalf of accused-appellant Sunder while adopting arguments of Sri I.K. Chaturvedi, Advocate, further contended that arrest of Sunder, allegedly carrying dead body of Kallu, has not been proved at all. Shirt belong to Sunder was also not proved. Trial Court on presumptions and unproved facts has held both appellants guilty, hence, judgment is liable to be set aside. 19. Per contra, learned AGA, contended that prosecution has clearly proved that in the evening at around 06:00 PM Kallu was seen along with Sunder and Mukesh in the market by an independent witness. In Wee hours of 03.03.1999, at around 04:30 AM, Sunder was caught along with dead body when Mukesh escaped from the scene. Recovery of clothes from house of Mukesh has also been proved and cause of death is also duly proved by prosecution. There is no material contradiction in prosecution case so as to disbelieve prosecution story hence, Trial Court has rightly convicted appellants and have sentenced them appropriately and judgment warrants no interference. 20. Incident is that of night of 2/3.3.1999. At the time of incident Mukesh was 29 years of age and Sunder was of 24 years of age. Kallu, deceased son of Informant Shambhu was a minor and about 12 years of age. 21. Postmortem of Kallu Has Duly Proved Unnatural offence (Sodomy). This Fact Has Been Proved by Dr. D.C. Jain, PW-5 by Stating As under:- ^^pksV uaŒ 4 xqnk esa gSA ;s pksV vÁkd`frd eSFkqu ls vkuk laHko gSA** (Emphasis added) "Injury No.4 is in anus. This injury may have been caused due to unnatural sex." (English Translation by Court) 22. He has also proved that hyoid bone on right side was also broken and cause of death is Asphyxia due to strangulation. This injury may have been caused due to unnatural sex." (English Translation by Court) 22. He has also proved that hyoid bone on right side was also broken and cause of death is Asphyxia due to strangulation. It is true that ligature mark was not found on neck but PW-5 has also said that injury-1 is possible if any shirt or cotton cloth is wrapped on neck or stretched and thereafter strangulation is caused. We do not find anything on record to show any material contradiction or otherwise inconsistency in the above evidence, hence, in our view, cause of death of deceased by strangulation is proved. Thus, death is not natural. Further deceased is also victim of sodomy. 23. Now, question is "Whether prosecution has proved by evidence beyond reasonable doubt that aforesaid offences causing death of deceased Kallu has been committed by the two appellants?" 24. It cannot be doubted that nobody had seen appellants committing aforesaid offence. Entire prosecution version is founded on circumstances and the evidence that both were found with dead body by informant and Sunder was caught with dead body. 25. Deceased was minor son of Informant Shambhu. He did not return in the evening of 02.03.1999 whereupon Informant and his another son Momin made an attempt to search him out. In that process, at around 08:00 PM, Dhoom Singh, PW-3, met them and told that around 06:00 PM he had seen both accused-appellants along with Kallu going towards market. There is cross-examination of this witness but on this aspect that he has seen accused-appellants along with Kallu going towards market at around 06:00 PM we find no inconsistency or material contradiction in deposition of PW-3. He has clearly said that he is residing in Village Sardhana for the last two years with Jaipal Singh. He knew Kallu and Shambhu as well as two accused-appellants and other villagers. He had seen Kallu going with Sunder and Mukesh towards market at around 06:00 PM. They were going on legs. Kallu was in middle and on one side Mukesh and on other side was Sunder. In a prolonged cross-examination, no substantial fact could have been extracted by defence so as to discredit this statement of fact of PW-3. He had seen Kallu going with Sunder and Mukesh towards market at around 06:00 PM. They were going on legs. Kallu was in middle and on one side Mukesh and on other side was Sunder. In a prolonged cross-examination, no substantial fact could have been extracted by defence so as to discredit this statement of fact of PW-3. Till dead body of Kallu was found, nobody else has seen Kallu at any other place hence, statement of PW-3 is crucial to prove one part of chain of circumstantial evidence that deceased was seen last in the company of accused-appellants till his dead body was discovered in the morning of 03.03.1999. 26. In a case which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all the circumstances must be consistent only with the guilt of accused. 27. In Hanumant Vs. The State of Madhya Pradesh, (1952) AIR SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said: "... circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...... it must be such as to show that within all human probability the act must have been done by the accused. " (emphasis added) 28. In Hukam Singh vs. State of Rajasthan, (1977) AIR SC 1063, Court said, where a case rests clearly on circumstantial evidence inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or the guilt of any other person. 29. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) AIR SC 1622 Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that the chain is complete. Infirmity of lacuna in prosecution cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. Infirmity of lacuna in prosecution cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (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 and tendency. (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. (emphasis added) 30. In Ashok Kumar Chatterjee vs. State of Madhya Pradesh, (1989) AIR SC 1890, Court said: "... when a case rests upon circumstantial evidence such evidence must satisfy the following tests : (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." (emphasis added) 31. In C. Chenga Reddy and Others vs. State of Andhra Pradesh, (1996) 10 SCC 193 , Court said: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. " (emphasis added) 32. In Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir, (2002) 8 SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgment said: "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." (emphasis added) 33. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Anr. vs. Registrar General High Court of Karnataka and Anr., (2007) 4 SCC 713 and Tomaso Bruno vs. State of U.P., (2015) 7 SCC 178 . 34. The chain of events in the case in hand commenced with factum of missing of informant's son Kallu on 02.03.1999 till late evening. The second fact is that informant and his another sone Momin made a search for him and in that process met Dhoom Singh, PW-3 who told that he has seen Kallu with Mukesh and Sunder at about 6 P.M. going towards Bazar from dairy of Ganga Ram son of Chandaru, situated in the same village. This fact of 'last seen' by Dhoom Singh has been proved by Dhoom Singh himself by his oral deposition as PW-3. 35. This fact of 'last seen' by Dhoom Singh has been proved by Dhoom Singh himself by his oral deposition as PW-3. 35. It is true that another person named by informant namely Ram Swaroop, who also had seen Kallu along with Mukesh and Sunder has not been examined but his non-examination by itself will not make any difference since it is not the quantity but quality of evidence which is material. Even a solitary evidence if clean, trustworthy and there is no material contradiction, is sufficient. Therefore, on the factum of 'last seen', evidence of Dhoom Singh PW-3, in our view is trustworthy and clear. 36. Learned counsel for appellants contended that circumstances relating to last seen have wrongly been applied in the case in hand for the reason that in the entire night deceased may have gone elsewhere and somebody else may have killed and there is a long gap of time. 37. This submission ignores the concept of last seen. In what circumstances it is a relevant crucial circumstantial evidence for proving culpability of a person of crime, we now proceed to consider. 38. The circumstance of last seen of deceased with accused person, as a relevant circumstantial evidence, when can be taken into account, has been discussed time and again. In Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir Court said that last seen theory comes into play where the time gap between the point of time when accused and deceased were seen last alive and when deceased is found dead is so small that possibility of any person other than accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that deceased was last seen with accused when there is a long gap and possibility of other persons coming in between exists. 39. Theory of last seen is a relevant circumstance when corroborated by other evidence to prove guilt against accused person. In State of U.P. vs. Satish, (2005) 3 SCC 114 , Court said: "The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." 40. In Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438 Court also said that in absence of any other links in chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of last seen evidence even if version of witness of fact in this regard is believed. 41. In State of Goa vs. Sanjay Thakran and others, (2007) 3 SCC 755 Court said that circumstance of last seen together would normally be taken into consideration for finding the accused guilty of offence charged with when it is established by prosecution that the time gap between the point of time when accused and deceased were found together alive and when deceased was found dead is so small that possibility of any other person being with deceased could completely be ruled out. The time gap between accused persons seen in the company of deceased and detection of crime would be a material consideration for appreciation of evidence and placing reliance on it as a circumstance against accused. Evidence of last seen together is not to be rejected merely because time gap between accused persons and deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for duration of time gap in this regard and it would depend upon the evidence led by prosecution to remove the possibility of any other person meeting deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than accused, being the author, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if prosecution proves that in the light of facts and circumstances of the case, there was no possibility of any other person meeting or approaching deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. If it may be demonstrated by showing that the accused persons were in exclusive possession of the place where incident occurred or where they were last seen together with deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. 42. The above observation on the theory of "last seen" has been followed in Tipparam Prabhakar vs. The State of Andhra Pradesh, (2009) 13 SCC 534 ; Rishi Pal vs. State of Uttarakhand, (2013) 12 SCC 551 ; Krishnan vs. State of Tamil Nadu, (2014) 12 SCC 279 ; State of Karnataka vs. Chand Basha, (2016) 1 SCC 501 ; Rambraksh vs. State of Chhattisgarh, (2016) 12 SCC 251 ; Anjan Kumar Sarma and Ors. vs. State of Assam, (2017) 14 SCC 359 ; and, Ganpat Singh vs. State of Madhya Pradesh, (2017) 16 SCC 353 . 43. Above authorities show that the term "time gap" is not to be measured in terms of length of period but it has to be seen whether in the given facts and circumstances, the time at which accused and deceased were seen alive together and till the detection of death whether there is any possibility of crime being committed by someone else or not. 44. In order to apply last seen theory in the present case, we find that after Kallu was seen along with Mukesh and Sunder by Dhoom Singh PW-3, no other person in the village has claimed to have seen Kallu, either alone, or in the company of anyone else, or otherwise alive at any other place. No evidence to contradict 'last seen' theory connected with evidence of PW-3 has been brought on record by defence that somebody else has seen Kallu elsewhere and, therefore, statement of PW-3 cannot be relied to apply last seen theory. 45. Here, till detection of body, nobody has seen Kallu. No evidence to contradict 'last seen' theory connected with evidence of PW-3 has been brought on record by defence that somebody else has seen Kallu elsewhere and, therefore, statement of PW-3 cannot be relied to apply last seen theory. 45. Here, till detection of body, nobody has seen Kallu. Even dead body was in possession of Sunder and Mukesh when they were seen by Informant PW-1 and Ram Prasad PW-2 and in the process, Sunder was caught along with dead body. In our view, evidence of 'last seen' in this case is clear and a relevant circumstance in the chain of circumstantial evidence. 46. The next part of chain is oral testimony of PW-1 and PW-2 that in the early Wee hours on 03.03.1999 both had gone to newly constructed house of Mukesh in search of Kallu and found that Mukesh and Sunder were carrying on their shoulder body of Kallu with an intention to dispose it off. On raising alarm, Mukesh fled away but Sunder was caught on the spot. 47. This evidence of PW-1 and PW-2 has been attempted to be discredited by learned counsel appearing for accused-appellants in various ways. 48. Firstly, they contended that once PW-1 and PW-2 found no trace of their son and went to the house of PW-1, normally it is not expected that someone will come out in search of the missing person in the early hours of morning i.e. around 3 or 3.30 AM or 4 AM. What a normal person will not do cannot be expected from a father whose minor son is missing. Psychology of such a disturbed person and anxiety of finding out his minor son at the earliest and always in every moment ready to go in search, is quite natural. In absence of any evidence otherwise, mere conjecture that a normal person would not behave in that manner cannot be a valid reason to discredit the evidence of PW-1 and PW-2. Both have spoken almost in similar language and there is no material contradiction. In fact, Ram Prasad PW-2 is a close neighbour of PW-1. Both tried to search out Kallu in the evening but could not trace him. PW-1 has stated that he made attempt to search out Kallu till 12 in the night and another son Momin was with him. In fact, Ram Prasad PW-2 is a close neighbour of PW-1. Both tried to search out Kallu in the evening but could not trace him. PW-1 has stated that he made attempt to search out Kallu till 12 in the night and another son Momin was with him. Thereafter, PW-1 continued in search of his son till 12:30 A.M. in the night intervening 2nd and 3rd March, 1999. At 3 A.M., PW-1 claimed that Ram Prasad came and accompanied him in search. This statement made by PW-1 in cross-examination is not shown contradictory to any other evidence and there is no material contraction in the said statement. He then has given details that PW-1 and PW-2 both went towards temple from market side lane and adjacent to the temple of Kali is the house of Mukesh. There is a Jain temple also, which is 100 meters from the temple of Godess Kali and both temples are in the market. On the south of new house of Mukesh, there is a passage and in the north, there is house of Omi son of Mool Chandra. On the West of house of Ganpath Barbar PW-2 have come from east side and went towards west, when they saw both the accused-appellants carrying dead body of Kallu on their shoulders. They were about 15 paces from PW-1 and PW-2 when seen by these witnesses. The witnesses followed them and when caught Sunder, they throw dead body on the ground and Mukesh ran away. Both were carrying dead body towards West and Mukesh was on front side while Sunder was on back side. To some extent it cannot be doubted that there is an element of chance that accused-appellant came out of the house of appellant Mukesh along with dead body when PW-1 and PW-2 were coming to the house of Mukesh at around 3:00 or 3:30 A.M. on 3rd March, 1999. However, in the entirety of the facts and other evidence on record, when father of a missing minor son was in search of his son since last evening, reached near the house of Mukesh when they had come out of the house along with dead body to dispose it off, it cannot be said to be a mere chance but it is a coincidence. Coming of PW-1 and PW-2 in search of Kallu is not improbable and attempt on the part of accused-appellants to take out body for its disposal in the early morning hours also cannot said to be so unnatural so as to discredit the otherwise clear trustworthy evidence of PW-1 and PW-2. 49. In this regard learned Amicus Curiae, learned counsel appearing for Sunder vehemently argued that there is no evidence to show that Sunder was caught along with dead body when carrying the same for its disposal along with Mukesh and he drew our attention to questions 4 and 12 of statement Sunder under Section 313 Cr.P.C. wherein he has replied that he was taken from his house. On this aspect, statement of PW-1 is clear and corroborated by statements of PW-2. PW-7 M.P.Singh Solanki has deposed that Sunder was surrounded by crowd and sitting under Mulberry (Shahtoot) tree, he was bleeding from his right leg and had injuries of lathes. He was taken in custody by Police but before that, his underwear was cut and a separate Fard memo of the said underwear was prepared, which is Exhibit Ka-4. He has denied suggestion that villagers caught Sunder from his house and after beating, threw him in the vacant place of Om Prakash. PW-8 has also proved the fact that accused-Sunder was brought to police station from the place where dead body was found and he was injured at that time. 50. Accused-Appellant had adduced no evidence to contradict the aforesaid testimony of PW-1, PW-2, PW-7 and PW-8 to support defence version that he was taken from his house. 51. Sri Chaturvedi, learned counsel for accused-appellant Mukesh also contended that PW-2 has stated that PW-1 after seeing the dead body on his son Kallu, went unconscious and if that be so, how Sunder could be caught as he also could have run away. Here if we carefully go through the evidence of PW-1 and PW-2 we find, on being raising alarm they caught Sunder and Mukesh ran away. Some villagers collected hearing their alarm and if at that point of time PW-1 fell unconscious after seeing his minor son's dead body, it is quite natural and, in our view, this fact does not create any discrepancy or material flaw in prosecution story. 52. Some villagers collected hearing their alarm and if at that point of time PW-1 fell unconscious after seeing his minor son's dead body, it is quite natural and, in our view, this fact does not create any discrepancy or material flaw in prosecution story. 52. Then it is contended that FIR is delayed, inasmuch as, dead body was found around 3:30 or 4:00 A.M. in the morning still FIR was lodged at 10:50 in the morning though Police Station was at a distance of about 12 kms. only. PW-1 has stated in his deposition that after catching Sunder and seeing dead body of his son, he became unconscious and remained so for about three hours. Thereafter, report was written by Sri Suraj Pal son of Mam Chandra and PW-1 went to Police Station, and filed at about 9 A.M. 53. In a village where such serious crime has been committed and dead body of a young boy is found with evidence of sodomy and people of village have gathered; father of son remained unconscious for few hours; lodging of report with the gap of about 6 hours from the time of discovery of dead body and on of the accused caught cannot said to be a delayed report considering the fact that police station is about 12 kms. away from the said place. 54. Another corroborating evidence is a shirt, which was found wrapped on the neck of the deceased. As per evidence of doctor, who conducted autopsy i.e. PW-5, it is clear that shirt was used for strangulation and it is for this reason, ligature mark was not found on the neck. The other evidence of Investigating Officer is that from the house of Mukesh, clothes and bed sheets etc. were seized. 55. In absence of any evidence, to discredit the entire chain of evidence, we have no reason to doubt prosecution story and in our view, prosecution has successfully proved his case beyond reasonable doubt and Trial Court has also recorded a similar conclusion after appreciating evidence correctly and held both the charges under Sections 302, 377 IPC proved against accused-appellants. 56. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 57. 56. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 57. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323 , Sham Sunder vs. Puran, (1990) 4 SCC 731 , M.P. v. Saleem, (2005) 5 SCC 554 , Ravji v. State of Rajasthan, (1996) 2 SCC 175 ]. 58. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence. 59. 58. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence. 59. Hence, applying the principles laid down by Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused appellant by the Trial Court in the impugned judgment and order is not excessive or exorbitant and no occasion arises to interfere in the matter on the point of punishment imposed upon the appellant. 60. In these circumstances, after close scrutiny of entire evidence, we are of the opinion that all circumstances established by prosecution clearly lead to draw inference that accused appellants have about commissioned alleged offences on the date and time of incident. Deceased was done to death after sodomy by accused appellants and none else and there is no conflict between oral and medical evidence. Delay in lodging F.I.R. is not material. Plea taken by accused appellants regarding their innocence is not acceptable for want of evidence in defence. Thus, in our considered opinion prosecution was able to establish guilt of appellants Sunder and Mukesh for the offences under Sections 302 and 377 I.P.C. beyond reasonable doubt. Findings recorded by Trial Court against appellants in the impugned judgment and order are based on correct appreciation of evidence and same do not warrant interference by this Court. 61. In the light of foregoing discussions, Criminal Appeal No.3803 of 2002 preferred by accused Mukesh and Jail Appeal preferred by appellant Sunder are liable to be dismissed and conviction and sentence of appellants Mukesh and Sunder for the offence under Sections 302 IPC and 377 IPC is liable to be upheld and impugned judgment and order dated 07.09.2002 is liable to be affirmed. 62. Accordingly, both the appeals are dismissed. Conviction and sentence of appellants Mukesh and Sunder under Sections 302 IPC and 377 IPC is upheld and impugned judgment and order dated 07.09.2002 is affirmed. 63. Accused appellant-Mukesh is on bail. His personal and surety bonds are cancelled and he is directed to surrender before Chief Judicial Magistrate concerned forthwith for serving out remaining sentence imposed upon him by trial court vide impugned judgment and order. 64. 63. Accused appellant-Mukesh is on bail. His personal and surety bonds are cancelled and he is directed to surrender before Chief Judicial Magistrate concerned forthwith for serving out remaining sentence imposed upon him by trial court vide impugned judgment and order. 64. Let a copy of this judgment along with lower court record be sent to Sessions Judge, Meerut for compliance. A compliance report be sent to this Court. Copy of this judgment be also supplied to accused appellant Sunder through concerned Superintendent of Jail. 65. Sri Ajay Kumar, learned amicus curiae has assisted the Court very diligently. We provide that she shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Ajay Kumar, learned amicus curiae without any delay and in any case within 15 days from the date of receipt of copy of this judgment.