JUDGMENT : A.K. Mishra, J. Both the appellants have assailed their conviction and sentence in the judgment dated 13.9.2010 passed by Adhoc Addl. Sessions Judge (F.T.C.-II), Balasore in Sessions Trial No.107/50 of 2009/07. The learned Sessions Judge, has convicted them U/s.376(2)(g) of the I.P.C. and passed sentence R.I. for 10 (Ten) years and also U/s.302/34 of the I.P.C. sentencing life imprisonment and U/s.201/34 of the I.P.C. sentencing R.I. for 5(Five) years. Both the appellants were convicted and sentenced with another accused-Kaira Jarka who has not preferred appeal. 2. The prosecution case in narrow compass may be stated thus:- Accused persons and deceased belong to Village-Pindabasa. On 7.6.2006 deceased with Smt. Minjari Mahakuda (P.W.4) and girl child-Kumari Minjhar Singh (P.W.5) had been to Padampur Weekly Market from their Village-Pindabasa of Oupada P.S. While returning from the market evening approached near Village-Badacua. All of them went to the house of Dhaneswar Manik (P.W.19) for a night halt. After sometime all the accused persons, namely, Kaira Jarka, Jujhar Hoo and Rama Singh came to the house of Dhaneswar and consumed "Handia? (Formented Rice). The three accused persons when stared to return their village, deceased also accompanied them. On their way near Manichua forest all the accused persons committed rape and to silence the disclosure they committed her murder dashing stone on her head. They concealed the stone inside the bush leaving the dead body there. The matter came into fore when on the next day morning accused Kaira Jarka (non-appellant) confessed his guilty before (P.W.1) Grama Rakhi while he was returning with his father (P.W.2) and Gautam Sahu (P.W.3). Babaji Biwwal (P.W.1) brought the accused Kaira Jarka to Oupada Police Station and orally reported the matter. The OIC (P.W.20) reduced the oral report into writing and registered Oupada P.S. Case No.28 of 2006. 3. Investigation ensued. The Investigating Officer made inquest over the dead body. At his instance the scientific team collected blood stained earth and stone from the spot. All the accused persons were arrested. Accused Jujhar Hoo gave confessional statement and led to discovery of a blood stained stone concealed in a bush near the spot. The accused persons were medically examined and their semen and blood sample were collected. The vaginal swab of deceased was collected by Doctor (P.W.22). All those articles were sent for chemical examination to S.F.S.L., Rasulgarh. The Chemical Examination report was also obtained vide Exhibit-23. The accused persons were medically examined and their semen and blood sample were collected. The vaginal swab of deceased was collected by Doctor (P.W.22). All those articles were sent for chemical examination to S.F.S.L., Rasulgarh. The Chemical Examination report was also obtained vide Exhibit-23. Postmortem was conducted, the death was found to be due to the injuries to the brain. The Doctor also gave his opinion on the blood stained stone that injury might have been caused by such stones vide Exhibit-24. After completion of investigation charge-sheet was submitted. 3.a Accused persons faced trial for the charge U/s. 376(2)(g) IPC, 302/34 IPC and 201/34 IPC. The plea of defence was denial of simplicitor. 3.b Prosecution examined 22 witnesses, defence examined none. Exhibits-1 to 24 were exhibited. Photographs, seized stones and wearing apparels of the deceased and accused persons were marked as M.O-I to M.O-XXI. P.W.8 is the mother of deceased who stated that deceased was sixteen years of age and had identified the dead body at the spot. P.W.1 is the informant. His father is P.W.2. P.W.3 and 9 are witnesses to the extra judicial confession of accused Kaira. P.W.19 is the person from whose house deceased accompanied accused persons lastly. Along with P.W.4 and 5 they are witness to the last seen. P.W.10 stated that while returning he first saw the dead body at Manichua after hearing from Balia Padhan. P.W.6 is the witness to the inquest. P.Ws.7, 11, 14, 16, 17 and 18 are witness to the seizure. P.W.12 is a witness to the leading to discovery of blood stained stone by accused Jujhara Hoo. P.W.14 is the Photographer who proved photographs M.O-I to Mo.V. P.W.13 is the Medical Officer who examined all the three accused persons and collected sample of semen vide Exhibits.6, 7 and 8. He found injury on the glance penis of accused Jujhar Hoo. P.W.21 is the Scientific Officer who examined the seized stones and found in one which was detected being led by accused Jujhar Hoo to have contained blood stain. P.W.22 is the Doctor who conducted Postmortem. P.W.20 is the Investigating Officer. 3.c Learned Sessions Judge, relying upon the Doctor evidence (P.W.22) and Postmortem Report(Exhibit-24) found that the death of the deceased was homicidal in nature. P.W.22 is the Doctor who conducted Postmortem. P.W.20 is the Investigating Officer. 3.c Learned Sessions Judge, relying upon the Doctor evidence (P.W.22) and Postmortem Report(Exhibit-24) found that the death of the deceased was homicidal in nature. He believed four circumstances, i.e., (a) last seen of deceased in the company of accused persons, (b) extra judicial confession of Kaira Jarka, (c) leading to discovery of blood stained stone as weapon of offence at the disclosure of accused Jujhar Hoo and (d) false denial plea of accused persons, and found that accused persons were authors of the murder and guilty of causing disappearance of evidence. The act of all the accused persons were found to have been committed in furtherance of common intention. He also found that Medical Officer negligently did not examine the private part of the victim to ascertain about the sexual assault. But believing upon the extra judicial confession, he found the accused persons guilty of gang rape. Accordingly, he convicted accused persons and passed sentence as stated above. 4. Learned counsel for the appellants, Mr. Jafarulla would submit that:- (i) The extra judicial confession made by accused-Kaira before P.W.1 is not admissible because, P.W.1 is a Grama Rakhi and thereby a Police Officer U/s. 25 of the Evidence Act. (ii) Deceased and accused persons were in the state of intoxication in the house of P.W.19 and for that the last seen theory should not be believed. (iii) The signature of appellant no.2-Jujhar Hoo is not taken in the confessional statement for which it is inadmissible U/s.27 of the Evidence Act. (iv) As the blood stain found in the seized stone is not matched with the blood group of the accused or deceased, the connecting link between the accused persons and the death of the deceased is missing. (v) Doctor (P.W.22) and his report (Exhibit-24) having not disclosed anything about sexual assault, the learned Sessions Judge has recorded a perverse finding that Medical Officer negligently did not examine the private part of the victim and such conjecture is not permissible in a criminal trial. As the connecting links of all the circumstances are not established conclusively, he urged, the conviction and sentence should be set aside. 5. Learned Addl. Government Advocate repelled the above submission on the ground stated in the judgment. As the connecting links of all the circumstances are not established conclusively, he urged, the conviction and sentence should be set aside. 5. Learned Addl. Government Advocate repelled the above submission on the ground stated in the judgment. Further it is stated that Grama Rakhi (P.W.1) is not a Police Officer as per decision reported by the full Bench of our Court Gurua Naik v. State of Orissa, (2014) 1 OrissaLR 672 (F.B) and for that extra judicial confession made before P.W.1 is admissible. Secondly, the evidence of the owner of the house (P.W.19), P.W.4 and P.W.5 are so cogent that last seen theory is established beyond reasonable doubt. Exhibit-4 the discovery statement of accused, Jujhar Hoo having contained the L.T.I, it is admissible U/s.27 of the Evidence Act. Lastly, the evidence of Doctor having not ruled out the sexual assault on the deceased, the confession of accused persons is sufficient to hold them guilty for gang rape which was acted upon in furtherance of their common intention. 6. This is a case based upon circumstantial evidence as to the actual occurrence leading to the death of deceased. Seminal features are required to be depicted to delve deep into the circumstances projected on record. 6.a The mother of the deceased (P.W.8) has stated that deceased was 16 years old by the time and she had gone to Padmapur market along with Minjari Mahakuda (P.W.4) and had not returned. She has also stated that Grama Rakhi, Babaji Biswal had informed her that accused persons had murdered her daughter and she on next day morning went to the spot with her husband and identified the dead body lying naked. 6.b Grama Rakhi (P.W.1) had orally reported the matter to the police at Police Station which was reduced into writing and he proved FIR (Exhibit-1). He had taken accused, Kaira Jarka with him to police. As per decision Gurua Naik v. State of Orissa, (2014) 1 OrissaLR 672 (F.B) the confession made by an accused before a Grama Rakhi is admissible as he is not a police officer within the meaning of that expression in section 25 of the Evidence Act. 6.c The postmortem report is (Exhibit-24). It is proved by Doctor (P.W.22). She has stated that the cause of death was due to injuries to the brain and the murder might have been caused by three stones produced before her. 6.c The postmortem report is (Exhibit-24). It is proved by Doctor (P.W.22). She has stated that the cause of death was due to injuries to the brain and the murder might have been caused by three stones produced before her. She found laceration of whole left ear and laceration of the skin of left temporal bone. She also found fracture of left temporal bone with irregular margin and brain matters were drained out through the fracture. On internal dissection of the dead body, she found the brain membrane macerated and cranial cavity was empty. All the chambers of the heart were found empty and other vital organs were found pale. The Doctor evidence clearly proves that the death of deceased was homicidal in nature. 6.d The circumstances advanced to prove the guilty of the accused persons are:- (i) Deceased was lastly seen in the company of all the accused persons when they left the house of P.W.19, (ii) Accused Kira Jarka made extra judicial confession before P.Ws.1,2 and 3 having committed rape and murder of deceased, (iii) Accused Jujhar Hoo led to the discovery of a stone piece having contained blood stain, (iv) The fact that the stone was concealed under a bush near the spot is admissible U/s.27 of the Evidence Act. (v) The deceased had not returned to their house as stated by P.W.8 and found dead while in the company of accused persons, for which instead of giving explanation, few persons have taken plea of denial U/s.313 Cr.P.C. 7. Legality and reliability of the evidence are the step forward to find the contour of the circumstances. 7.a P.W.19 stated that on the date of incident at 7 P.M. when he returned from the weekly market found the deceased, one old lady, namely, Minjari and one girl of 10 years having taken shelter in his house. As it was night they could not proceed to their village Pindabasa. At about 9 P.M to 10 P.M all the three accused persons came and took Handia and when they started to proceed to their village, the deceased told him to go with them. He advised her not to go with them. The deceased insisted and left believing them as co-villagers. On next day morning he came to know that dead body of deceased was lying at Monichua forest. In cross-examination nothing material has been elicitated to disbelieve him. He advised her not to go with them. The deceased insisted and left believing them as co-villagers. On next day morning he came to know that dead body of deceased was lying at Monichua forest. In cross-examination nothing material has been elicitated to disbelieve him. But he has stated that deceased had also consumed Handia with accused persons. P.Ws.4 and 5 both of them had gone to weekly market with deceased and have categorically corroborated the testimony of P.W.19. P.W.4 is the Grand Mother of P.W.5. On the aspect of human traits, their relationship leave no scope to suspect their evidence. Rather it persuaded us to believe P.Ws.4, 5 and 19. Their evidence is cogent and clear. This direct and positive evidence proves beyond doubt that deceased was lastly seen in the company of accused persons on the occurrence night when they left after consuming Handia from the house of P.W.19. 7.b On next day early morning accused Kaira Jarka, as per P.W.19, had come to his house and talked with Minjari from where P.W.19 came to know that deceased was lying inside Manichua forest and he immediately proceeded and found the dead body. The conduct of accused Kaira that he had visited the house of P.W.19 on the next day morning is admissible as one of the incriminating circumstances. 7.c P.W.1 stated that while he was coming with his father (P.W.2) and brother Purna Biswal, accused Kaira Jarka came and touched his feet. On being asked he disclosed that he along with two accused persons had murdered the deceased after committing rape at Manichua Chatara. He further confessed that when deceased had told them that she would disclose the matter before others they out of fear committed her murder by means of a stone, P.W.1 also testified that thereafter he took accused Kaira to Oupada P.S. and orally reported the matter which was reduced into writing vide Exhibit-1. FIR (Exhibit-1) corroborates the same. It was lodged on the next day at 8 P.M. P.W.2 and 3 have corroborated the evidence of P.W.1. P.W.3 categorically stated that it was at about 5 P.M. accused Kaira disclosed that he along other two accused persons committed rape and murder of the deceased and P.W.1 took Kaira to Oupada P.S. and he was present when such discloser was made. P.W.3 categorically stated that it was at about 5 P.M. accused Kaira disclosed that he along other two accused persons committed rape and murder of the deceased and P.W.1 took Kaira to Oupada P.S. and he was present when such discloser was made. In cross-examination he has categorically stated that he heard the confession made by accused Kaira before P.W.1 where P.W.2 was present. Nothing material is elicidated in the cross-examination to disbelieve P.Ws. 1, 2 and 3 as stated earlier. In view of Gurua Naik judgment (supra), the extra judicial confession of accused Kaira that he along two others had murdered the deceased on the previous night when after committing rape, she threatened to disclose, is admissible. The contention of learned counsel for appellant in this regard to discard the same on the ground that P.W.1 was the Grama Rakhi is not acceptable under law. 7.d The fourth circumstance is leading to discovery by accused-Jujhar Hoo. P.W.20, Investigating Officer has stated that he arrested the accused at 2 P.M. and while in custody accused-Jujhar Hoo gave confessional statement which he had recorded vide-Exhibit-4(1). We perused the disclosure statement Exhibit.4/1, keeping the law in view that so much of such information whether it amounts to confession or not, as relates distinctly to the fact thereby discovered may be proved. The statement was challenged on the ground that accused has not given any endorsement but we have already stated that it contain the LTI of the accused and signature of independent witnesses. The admissible part of that statement as per law is that he had concealed the stone under the bush and would show that. Thereafter, P.W.20 stated, that accused led them and showed a stone stained with blood and he seized the same preparing seizure list Exhibit-5 and the seized stone is identified as M.O.-VI. P.W.20 is the Investigating Officer. There is no animosity with accused persons. P.W.12, is the uncle of accused, Jujhar Hoo. Admitting his signature in Exhibit-4, has categorically stated that accused Jujhar Hoo gave recovery of a stone which was kept under bush and proved his signature in the seizure list (Exhibit.5). P.W.20 is the Investigating Officer. There is no animosity with accused persons. P.W.12, is the uncle of accused, Jujhar Hoo. Admitting his signature in Exhibit-4, has categorically stated that accused Jujhar Hoo gave recovery of a stone which was kept under bush and proved his signature in the seizure list (Exhibit.5). This part of such evidence that accused Jujhar Hoo gave a statement which is confirmed by recovery of stone piece stained with blood and the fact that it was concealed under a bush is admissible incriminating the accused Jujhar Hoo and it is proved to the hilt. 8. Scientific Officer (P.W.21) examined the stone and collected saline extraction of blood stain from that stone and instructed to send the same for SFSL, Rasulgarh for further confirmation. He proved his report (Exhibit.22). The chemical examination report (Exhibit-23) reveals that the blood stain collected from that stone was found to be human blood. 9. All the above four circumstances are conclusive in nature and they exclude every other hypothesis except the one that accused persons were the authors of committing homicidal death of the deceased. The chain of evidence proving the above circumstances is complete so as to not leave any reasonable ground for a conclusion of innocence of the accused persons. The law in this regard has been elucidated in the decision Sharad Birvdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 . 10. For the circumstance relating to the last seen evidence proved beyond reasonable doubt, the accused persons have given no explanation in their statement recorded U/s.313 Cr.P.C. No evidence is adduced by the defence. The false plea would provide an additional link in the chain of circumstances. The evidence should be given a rational, realistic and genuine approach. 11. All the above circumstances unmistakably and inevitably lead to the guilty of the accused persons that they have caused murder of deceased and had caused disappearance of evidence for screening themselves. All of them are participants at spot. Their common intention is also proved. Resultantly, the offence U/s.302 and 201 read with 34 IPC against all the accused persons are proved beyond reasonable doubt. 12. With regard to offence of gang rape, on careful consideration of evidence on record we entertain a reasonable doubt. The Doctor (P.W. 22) has not disclosed anything about commission of sexual assault on the victim. His report (Exhibit-24) is silent. 12. With regard to offence of gang rape, on careful consideration of evidence on record we entertain a reasonable doubt. The Doctor (P.W. 22) has not disclosed anything about commission of sexual assault on the victim. His report (Exhibit-24) is silent. Learned Trial Court has stated in his judgment Para 21 that Medical Officer negligently did not examine the private part of the victim to ascertain about the sexual assault and in his opinion the fact of sexual assault on the deceased had been proved by the extra judicial confession made by the accused Kaira Jarka. In a criminal trial the court cannot substitute his conjecture upon the Medical evidence legally brought on record. Appreciation of medical evidence cannot be done by adding something by conjecture or guess work which is not be done during examination by Doctor. Chemical examination report found no semen on the wearing apparels of the deceased and also on the vaginal swab. Though injury on the body is not always must to prove the charge of rape, in the circumstance projected alleging gang rape by three accused persons, the silence of medical opinion in the postmortem report cannot be lost sight of. 12.a On this score, we are unable to accept the appreciation made by the learned Trial Court because suspicion in this regard however grave may be cannot take the place of proof. Our view is supported by the decision Joseph S/o. Kooveli Poulo v. State of Kerala, (2000) AIR SC 1608 wherein it is stated that "anything possibly might have happened and the facts found proved do not inevitably lead to the only conviction of the guilty of the appellant in respect of an offence U/s.376 IPC." 12.b Because of this, we feel it reasonable to gave benefit of doubt to the accused persons and for that, conviction of accused persons U/s.376 (2)(g) IPC is to be set aside along with sentence passed thereon. 13. On the conspectus of above analysis, we affirm the conviction of appellants-accused persons U/s.302/34 IPC and U/s.201/34 IPC and sentence passed thereon. The conviction of accused persons U/s. 376(2)(g) of IPC and sentence passed thereon are set aside. 14. The appeal is allowed in part. 15. L.C.R. be returned to the lower Court. I agree. S.K. Mishra, J.