JUDGMENT : Rajendra Kumar, J. 1. Present Reference under Section 366 Cr.P.C. and Capital Case under Section 374(2) Cr.P.C. have arisen from judgment and order dated 26.09.2018 passed by Sri Sanjeev Shukla, Additional Sessions Judge, Court No. 1 / Special Judge, POCSO Act, Pilibhit in Special Session Trial No. 31 of 2016, whereby accused-appellant has been convicted under Sections 376, 302 and 201 IPC. Considering the case to be rarest of rare, accused-appellant has been awarded death sentence and a fine of Rs. 25,000/- under Section 302 IPC and in default of payment of fine, he has to undergo Rigorous Imprisonment (hereinafter referred to "R.I.") for two years, under Section 376 IPC life imprisonment and Rs. 25,000/- and in case of default in payment of fine, he has to further undergo R.I. for two years and further under Section 201 IPC, sentenced to undergo R.I. for three years with a fine of Rs. 10,000/-and in case of default in payment of fine, to further undergo R.I. for one year. 2. Prosecution case, in brief, is that on 21.02.2016, at about 7:00 p.m. daughter of PW-1 Dev Prakash (victim name withheld by us), aged about 11 years got out of his house after taking meal but did not return to her house and suddenly disappeared. Then PW-1 himself along with wife remained searching of his daughter. Dead body of victim was found lying in the bushes of Semi Tree in the vacant plot of one Ram Bahadur, behind the house of Mukesh. It was suspected that victim was murdered by some one. 3. On the basis of written report (Ex. Ka-1), presented by PW-1 and scribed by one Rishipal, chick F.I.R. (Ex. Ka-18) was lodged by Constable Clerk in the Police Station bearing Crime No. 208 of 2016, under Sections 302 and 201 IPC. An entry of crime was made in General Diary No. 18 by Head Constable-Babu Ram, copy whereof is Ex.Ka-17. 4. Investigation of the case was handed over to PW-4 SI Ram Kumar Singh, who visited the spot, prepared site plan (Ex.Ka-….. ) and under the instruction of the then SHO, prepared inquest report (Ex.Ka-2) and related paper thereto i.e. Challan Lash (Ex.Ka-4), Photo Lash (Ex. Ka-5) letter to R.I., letter to C.M.O. (Ex. Ka-7) and sent body of deceased in a sealed cover for post mortem. ) and under the instruction of the then SHO, prepared inquest report (Ex.Ka-2) and related paper thereto i.e. Challan Lash (Ex.Ka-4), Photo Lash (Ex. Ka-5) letter to R.I., letter to C.M.O. (Ex. Ka-7) and sent body of deceased in a sealed cover for post mortem. He also took one black Dupatta, one legging Green colour, old, used and one set of plastic Sleeper (Blue Colour) into custody and prepared memo (Ex. Ka-10) under his signature. 5. During investigation, accused was apprehended by the then Station House Officer at about 6:15 a.m. on 26.02.2016. Accused-appellant confessed his guilt before Police and on his pointing out, Police recovered, his Pant from the house of accused and Kundal (Ear Ring) belong to deceased kept in the pocket of his Pant. 6. Pw-3 Dr. T.P. Rathore conducted autopsy of deceased and prepared post mortem report (Ex. Ka-3) under his signature. 7. Pw-5 Investigation Officer concerned after completing all necessary formalities of investigation submitted charge sheet (Ex. Ka-9) against the accused-appellant. 8. Four charges were framed against accused-appellant on 12.06.2016 under Sections under Sections 376, 302, 201 IPC and 3/4 POCSO Act to which accused denied and claimed trial. Ka-3) under his signature. 7. Pw-5 Investigation Officer concerned after completing all necessary formalities of investigation submitted charge sheet (Ex. Ka-9) against the accused-appellant. 8. Four charges were framed against accused-appellant on 12.06.2016 under Sections under Sections 376, 302, 201 IPC and 3/4 POCSO Act to which accused denied and claimed trial. Charges read as under:- ^^eSa fou; dqekj&1 vij l= U;k;k/kh'k@U;k;ky; la[;k 1 ihyhHkhr vki&j/kqohj dks fuEu Ádkj vkjksfir djrk gwa %& ÁFke & ;g fd fnukad 21-2-2016 dks lk;a 7-00 cts ls fnukad 22-2-2016 dh e/; fdlh le; okg~n xzke HkSjksdyka Fkkuk ek/kksVkaMk ftyk ihyhHkhr es vkius oknh nso Ádk'k ekS;Z dh ukckfyx iq=h lksuh nsoh mez yxHkx 11 o"kZ ds lkFk mldh bPNk ds fo:) tcjnLrh cykRlax fd;kA bl Ádkj vkius ,slk d`R; fd;k tks HkkŒnaŒlŒ dh /kkjk 376 ds v/khu n.Muh; vijk/k gS ,oa bl U;k;ky; ds ÁlaKku esa gSA f}rh; & ;g fd mijksDr fnukad] le; o LFkku ij vkius oknh nso Ádk'k ekS;Z dh ukckfyx iq=h lksuh nsoh mez 11 o"kZ ds lkFk cykRdkj djus ds mijkUr mls e`R;q dkfjr djds mldh gR;k dj nhA bl Ádkj vkius ,slk d`R; fd;k tks HkkŒnaŒlaŒ dh /kkjk 376 ds v/khu n.Muh; vijk/k gS ,oa bl U;k;ky; ds ÁlaKku esa gSA r`rh; & ;g fd mijksDr fnukad] le; o LFkku ij vkius oknh nso Ádk'k ekS;Z dh ukckfyx iq=h lksuh nsoh mez 11 o"kZ ds lkFk cykRdkj djus ds mijkUr mls e`R;q dkfjr djds mldh gR;k dj nhA mldh gR;k ds vijk/k ls cpus ds fy, mlds 'ko dks jkecgknqj ds [kkyh IykV es lseh dh >kMh esa eqds'k ds edku ds ihNs Mkydj gR;k ds vijk/k ds lk{; dks foyksfir fd;kA bl Ádkj vkius ,slk d`R; fd;k tks HkkŒnaŒlaŒ dh /kkjk 201 ds v/khu n.Muh; vijk/k gS ,oa bl U;k;ky; ds ÁlaKku esa gSA prqFkZ & ;g fd mijksDr fnukad] le; o LFkku ij vkius oknh nso Ádk'k ekS;Z dh ukckfyx iq=h lksuh nsoh mez 11 o"kZ ds lkFk cykRdkj djds mldk ySfxad 'kks"k.k fd;kA bl Ádkj vkius ,slk d`R; fd;k tks ySfxad 'kks"k.k ls ckydksa dk laj{k.k vf/kfu;e 2012 dh /kkjk 3@4 ds v/khu n.Muh; vijk/k gS ,oa bl U;k;ky; ds ÁlaKku esa gSA eSa] ,rn~}kjk vkidks funsZ'k nsrk gaw fd vkidk fopkj.k mijksDr vkjksi ds vk/kkj ij bl U;k;ky; }kjk fd;k tk;sxkA** "I, Vinay Kumar-I, Additional Sessions Judge/Court Room No. 1, Pilibhit, charge you, Raghuvir, with the following offence: First – Between 7 pm on 21.02.2016 and anytime on 22.02.2016, within the limits of Village Bhairo Kalan, PS Madhotanda, District Pilibhit, you committed rape on a minor girl Soni Devi, aged around 11, daughter of the complainant Dev Prakash Maurya in a forcible manner and against her consent. In this way, you have committed an act punishable u/s 376 of IPC which is within the cognizance of the court. Second – That on the aforesaid date, time and place, you, having committed rape on a minor girl Soni Devi, aged 11, daughter of the complainant Dev Prakash, killed her. In this way, you have committed an act punishable u/s 302 of IPC which is within the cognizance of the court. Third – That on the aforesaid date, time and place, you having committed rape on a minor girl Soni Devi, aged 11, daughter of the complainant Dev Prakash, killed her, and thereafter in order to protect yourself from the offence of her murder, you put her dead body behind Mukesh's house in the tangle of bean plant in a vacant plot of Ram Bahadur, and thereby destroyed the evidence. In this way, you have committed an act punishable u/s 201 of IPC which is within the cognizance of the court. Fourth – That on the aforesaid date, time and place, you by raping a minor girl Soni Devi, aged 11, daughter of the complainant Dev Prakash, subject her to sexual harassment. In this way, you have committed an act punishable u/s 3/4 of The Protection of Children from Sexual Offences (POCSO) Act, 2012 which is within the cognizance of the court. I hereby direct you that you be tried by this court for the said charges." (English Translation by Court) 9. In support of its case, prosecution examined PW1-Dev Prakash (father of the victim), PW-2 Smt. Premwati (mother of victim), PW-3 Dr. T.P. Ratohore who conducted postmortem, PW-4 Ram Kumar Singh, prepared inquest report and completed other formalities of investigation. PW-4 Vivek Trivedi, Investigating Officer. PW-6 DK Mishr, Investigating Officer and PW-7 HCP Dhakan Lal. PW-1 and PW-2 are the witnesses of fact. PW-3 to PW-7 are formal witnesses. 10. Statement of accused under Section 313 Cr.P.C. was recorded by Court explaining all incriminating evidence and circumstances. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication on account of partibandi dispute. He further stated that daughter of PW-1 was murdered by someone else and on account of partibandi, he has been falsely implicated in the present case. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication on account of partibandi dispute. He further stated that daughter of PW-1 was murdered by someone else and on account of partibandi, he has been falsely implicated in the present case. He examined Jograj as DW-1 in defence who had deposed that after incident, Raghuvir stayed in village, Police took him away him from his house and there was a controversy between Dev Prakash and Raghuvir in respect of drainage water a few days prior to incident and due to village partibandi, there was an old rage between them. 11. After analyzing entire evidence led by prosecution, learned Trial Court convicted accused appellant as stated above. 12. Feeling aggrieved with impugned order of conviction, accused-appellant has filed Appeal against the aforesaid judgment and since death penalty has been awarded, Reference has also been been made by Trial Court to this Court for confirmation of sentence. Reference as well as Appeal both have been taken together since they arise from the same judgment and accused-appellant is also the same. 13. We have heard Heard Sri Saghir Ahmad, learned Amicus Curiae for appellant and Sri Udit Chandra, learned A.G.A. for State in Capital Case No. 204 of 2018 and Sri Vimlendu Tripathi and Mr. Kuldeep Johary, learned counsel for appellant and Sri Rishi Chadha, learned A.G.A. for State in connected Criminal Appeal No. 1 of 2019 at length and have gone through the record available on file carefully. 14. Learned Amicus Curiae made following submissions :- (i) This is a case of circumstantial evidence and there is no motive to accused to commit rape and murder of deceased Soni Devi. (ii) Complete chain of evidence is missing so as to indicate that accused is the only person who has committed crime. (iii) There is no evidence of murder or rape. (iv) Medical evidence is not compatible with oral evidence. (v) As per post mortem report, death of Ram Prasad might be occurred 21-30 days prior to post mortem. (vi) There are several contradictions rendering prosecution case doubtful. (vii) FIR has been lodged by PW-1 (father of victim) close relative of deceased second day without explaining any sufficient reason for delay in lodging FIR. 15. (v) As per post mortem report, death of Ram Prasad might be occurred 21-30 days prior to post mortem. (vi) There are several contradictions rendering prosecution case doubtful. (vii) FIR has been lodged by PW-1 (father of victim) close relative of deceased second day without explaining any sufficient reason for delay in lodging FIR. 15. Per contra learned AGA opposed submissions by submitting that PW-1 and 2 are witnesses of fact, dead body of victim was found lying in the bushes of Semi Tree in the plot of vacant plant of one Ram Bahadur behind the house of Mukesh. 16. We now proceed to consider rival submissions on merits. 17. It is evident from record that PW-1 and 2 are witnesses of fact. They proved that dead body was found lying down in the vacant plot of Ram Bahadur. It has come in the statement of PW-1 that dead body was found on 22.02.2016 in the vacant plot of Ram Bahadur in the bushes of Semi Tree. PW-1 father of deceased has lodged FIR after dead body is found. Explanation for not lodging FIR within a short time after the girl was missing or when her body was found, has not been properly given by informant. FIR regarding missing of victim was also not lodged by PW-1. 18. There is no other evidence except recovery of Kundal (ear ring) from the possession of accused-appellant on his pointing out to connect accused with present case. 19. Pw-2 deposed that at the time of incident at about 7:00 p.m. her daughter Soni went out of house after taking meal and suddenly disappeared. At about 8:00 a.m. next day on being searched, her dead body was found at the vacant plot of Ram Bahadur in bushes of Semi Tree. Chappal, paijami, dupatta were also found lying thereat. Prior to incident, accused-appellant called upon Soni twice by offering greed for money, which was told by Soni to her. Later on, she came to know that she was murdered by the accused-appellant. 20. Pw-3 Dr. T.P. Rathore, deposed that on 23.02.2016, he along with Dr. Sanjeev Saxena and Dr. Tarannum conducted autopsy on the person of deceased and prepared post mortem report, Ex-Ka-3, under their signature. On external examination, he found the following ante-mortem injury:- i. Abraded contusion 4 x 1 c.m. over right side of neck 3 c.m. below jaw. ii. 20. Pw-3 Dr. T.P. Rathore, deposed that on 23.02.2016, he along with Dr. Sanjeev Saxena and Dr. Tarannum conducted autopsy on the person of deceased and prepared post mortem report, Ex-Ka-3, under their signature. On external examination, he found the following ante-mortem injury:- i. Abraded contusion 4 x 1 c.m. over right side of neck 3 c.m. below jaw. ii. Abraded contusion 0.5 x 0.5 c.m. on front of neck 3.5 c.m. below chin. iii. Abraded contusion of size of 2.0 x 1.0 c.m. over left side of neck 2.0 c.m. below left lower jaw. iv. Contusion 3.0 x 1.0 c.m. on the right parietal region of head. 21. Pw-3 further opined that Dr. Tarannum, who was present in the panel, examined genitals of victim and found that hyman fresh torn and blood clots were present around the hyman. Blood was present in the vaginal cavity. 22. Pw-4 deposed that on 26.2.2016, he along with Station House Officer, concerned, ASI Jaspal Singh, Constable Rajesh and Constable Raju tried to apprehend accused-appellant but not succeeded. On the information given by mukhbir, accused-appellant was arrested at about 6:10 a.m. on 26.02.2016. On interrogation, he confessed his guilt and on his pointing out, Kundal (ear-ring) belong to deceased was recovered from the pant of accused-appellant, kept in his own house. In his cross-examination, he admitted that no independent witness was called for before recovery but there was no blood stain on the Kundal (ear-ring). At the time of entering the house, so many persons were present. He further admitted that fard had been prepared in the presence of Liladhar and Baburam (not examined) and their signatures were obtained. 23. In the present case, PW-1 and 2 are witnesses of fact. Nobody has seen victim with the accused, neither on the place nor the house of PW-1. There is no evidence against accused-appellant to connect with the present crime except alleged recovery of Kundal belong to deceased Soni. 24. This case totally rests upon circumstantial evidence. 25. It is a case where there is no eye witness of crime. Prosecution totally rests on circumstantial evidences, which found favour with Court below and finding prosecution version proved beyond reasonable doubt, Trial Court has convicted appellant. 26. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. 25. It is a case where there is no eye witness of crime. Prosecution totally rests on circumstantial evidences, which found favour with Court below and finding prosecution version proved beyond reasonable doubt, Trial Court has convicted appellant. 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 circumstances must be consistent only with guilt of accused. 27. In Hanumant Govind Nargundkar & Anr. v. State of M.P., (1952) AIR SC 343, a basic judgment of the Supreme Court on appreciation of evidence, when the case depends only on circumstantial evidence, which has been consistently relied in later judgments as long back as in 1952 Hon'ble Court 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." 28. In Hukam Singh v. 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 guilt of any other person. 29. In Sharad Birdhichand Sarda v. 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 chain is complete. Infirmity or 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. 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 v. 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 v. 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. 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. 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. v. 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 Another v. Registrar General High Court of Karnataka and Another, (2007) 4 SCC 713 and Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 . 34. In present case, circumstantial evidence commences with statement of Informant PW-1 that his daughter Soni suddenly disappeared and next day her dead body was found on 22.02.2016. Except recovery of Kundal allegedly belong to deceased Soni, no other chain of circumstances is proved. Nobody has seen deceased in the company of appellant at the nearby place where her dead body was found. 35. It is not prudent to base conviction solely on recovery of Kundal allegedly belong to deceased Soni on the pointing out of the accused-appellant from his own house, which was admittedly not identified by any witnesses, as that of deceased. Admittedly, recovered Kundal has not been put before witnesses in the Court below specially when PW-1, 2 and 4 came for examination. 36. Admittedly, recovered Kundal has not been put before witnesses in the Court below specially when PW-1, 2 and 4 came for examination. 36. Moreover, in the case of circumstantial evidence, motive has its own role but prosecution has failed to prove any motive against accused-appellant. It is also well settled principles of law that confessional statement of accused-appellant regarding any guilt before Police when he was in Police custody is not admissible in evidence. 37. Witnesses of recovery of Kundal namely Leeladhar and Baburam have not been examined by prosecution. The only evidence is of PW-4 to prove recovery who stated that before entering the house of accused-appellant, public witness were called for. No blood was found on Kundal. Keeping in mind the above facts and circumstanced of the case, we do not find that the factum of alleged recovery stood proved. 38. Looking into entirety of facts and circumstances of the case, as discussed above, we are of the view that Court below was not correct in convicting appellant, broadly relying on the confessional statement of accused-appellant while he was in Police custody and recovery of Kundal allegedly belong to deceased Soni, which was not identified by the witnesses, treating it to be a conclusive proof overlooking other major contradictions in the evidence and missing chain of circumstantial evidence. In our view, accused-appellant is entitled to benefit of doubt and it cannot be said that prosecution has been successful in proving guilt of accused-appellant beyond reasonable doubt. 39. In the result, Capital Case (Appeal) No. 204 of 2018 along with connected Capital Case (Appeal) No. 1 of 2019 are hereby allowed. Impugned judgment and order dated 26.09.2018 passed by Sri Sanjeev Shukla, Additional Sessions Judge, Court No. 1 / Special Judge, POCSO Act, Pilibhit in Special Session Trial No. 31 of 2016 is hereby set aside. Reference No. 07 of 2018 made by Trial Court is hereby rejected. Appellant is acquitted of charges leveled against him. He is in jail and shall be released forthwith, if not wanted in any other case. 40. Reference No. 07 of 2018 made by Trial Court is hereby rejected. Appellant is acquitted of charges leveled against him. He is in jail and shall be released forthwith, if not wanted in any other case. 40. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court. 41. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action. 42. Before parting, we provide that Sri Saghir Ahmad, learned Amicus Curiae appearing for appellant, shall be paid counsel's fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.