JUDGMENT B.A. Patil, J. - The present appeal has been preferred by the appellant accused challenging the legality and correctness of the judgment of conviction and order of sentence passed by II Addl. District and Sessions Judge, Vijayapura in S.C.No.138/2008 dated 12.12.2011. 2. We have heard the learned counsel Sri Sudheer Kulkarni, learned counsel appearing for the appellant and Sri. Prakash Yeli, learned Additional State Public Prosecutor for the respondent State. 3. The genesis of the case of the prosecution in brief is that: On 21.04.2008 at about 7.00 p.m. at Talikoti Town when the deceased was playing near Panch Shahi Darga, appellant enticed her by saying that he will give biscuit and took her to his rented house with an intention to commit rape; thereafter committed rape on the victim in the kitchen room of his house at about 7.30 p.m.; thereafter he felt that she may narrate the incident to her parents and in that light he squeezed her neck and committed the murder; thereafter in order to screen the evidence he defaced the identity of the deceased by pouring kerosene over the dead body of the deceased and set ablaze; thereafter he carried the half burnt body of the deceased in a gunny bag and thrown it in a open public place to defecate near the Panch Shahi Darga. On the basis of the missing complaint lodged on 22.04.2008, a case in Crime No.49/2008 came to be registered. After completion of the investigation, the charge sheet came to be filed against the appellant. 4. The learned Magistrate after receipt of charge sheet, committed the case to the Sessions Court, Sessions Court took the cognizance, secured the presence of the appellant and after hearing both the sides, charge came to be framed, read over and explained to the appellant, who pleaded not guilty and claim to be tried and as such the trial was fixed. 5. To prove the case of the prosecution, prosecution got examined 23 witnesses as P.Ws.1 to 23 and got marked 23 documents as Exs.P.1 to 23 and 09 material objects got marked as M.Os.1 to 9. After closure of prosecution side, statement of the appellant was recorded by putting incriminating material as against him. Appellant denied the same and he has not chosen to lead any defence evidence but he got marked Exs.D1 and 2 during cross-examination of witnesses. 6. After closure of prosecution side, statement of the appellant was recorded by putting incriminating material as against him. Appellant denied the same and he has not chosen to lead any defence evidence but he got marked Exs.D1 and 2 during cross-examination of witnesses. 6. The learned Sessions Court after hearing both the sides, passed the impugned judgment of conviction and order of sentence holding that the appellant is guilty of the offence leveled against him. Challenging the same, the appellant is before this Court. 7. The main grounds urged by the learned counsel for the appellant is that the judgment of conviction and order of sentence passed by the trial judge is contrary to law and material placed on record. It is his further submission that the entire case rests on circumstantial evidence and there are no eyewitnesses to the alleged incident. There is no consistency in the evidence produced and the one produced is not cogent, convincing. In spite of such evidence, the trial Court has convicted the appellant erroneously. It is his further submission that the prosecution has relied upon the last seen theory and in that light it has relied upon the evidence of P.Ws.5 and 6. But, P.W.5 in his evidence has clearly admitted the fact that when he was sitting on the katta, he left at about 6.00 p.m. in order to go to market and he came back only during night hours at about 1.00 a.m. It is his further submission that as per the case of the prosecution, when the deceased was playing at about 7.00 p.m. at that time the appellant accused took the deceased by promising that he will give the biscuit. When the said witness is said to have been left the place to go to market at about 6.00 p.m., then the question of he seeing the appellant taking the deceased to his house by promising to give biscuit itself is not believable, trustworthy and reliable. It is his further submission that immediately coming to know of the missing of the deceased, P.W.5 has not informed the same to the complainant and he only informs after 2-3 days. If really he has seen the appellant taking the deceased to his house, definitely he could have informed and stated to the complainant. 8. It is his further submission that immediately coming to know of the missing of the deceased, P.W.5 has not informed the same to the complainant and he only informs after 2-3 days. If really he has seen the appellant taking the deceased to his house, definitely he could have informed and stated to the complainant. 8. It is submitted by the learned counsel for the appellant that when the procession of the marriage was going on, at that time, so many persons were gathered there, then under such circumstances he seeing the appellant taking the deceased to his house not acceptable and it appears to be a planted witness. It is his further submission that the prosecution has relied upon the evidence of one more witness i.e., P.W.6 to establish the last seen theory, the owner of the house where the appellant used to reside. In his evidence, he has deposed that in the early morning he has come to know about the death of the deceased and the mother of the deceased was also searching for her child. If really, P.W.6 has seen the appellant taking the deceased by seeing that he want to give the biscuit, but when the missing of the child was announced with a mike of the Masjid, the appellant-accused and himself (P.W.6) were standing there and same has not been informed either to the mother or to the complainant. It is his further submission that he has also not informed either to the father or mother of the deceased about the appellant taking the deceased to his house saying that he would give the biscuit. It is further submitted hat PW.6 has also further deposed that in the house of the appellant, appellant, his wife and children are residing and under such circumstances appellant-accused taking the victim to his house and committing the alleged offence is not acceptable. It is his further submission that during the course of cross-examination of P.W.6 admitted that he has not stated before the police that the appellant by stating that he will give the biscuit took the deceased inside the house. When such a crucial admission has been made by the appellant, then under such circumstances evidence of these two witnesses is not trustworthy, reliable and acceptable to come to the conclusion that the prosecution has clearly established last seen theory. When such a crucial admission has been made by the appellant, then under such circumstances evidence of these two witnesses is not trustworthy, reliable and acceptable to come to the conclusion that the prosecution has clearly established last seen theory. It is his further submission that the prosecution though has contended that there was some business rivalry between the appellant and the complainant, but the same has not been established with cogent and acceptable evidence. It is his further submission that the trial Court without properly appreciating the evidence and material placed on records has come to a wrong conclusion and has wrongly convicted the appellant-accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and acquit him of all the charges. 9. Per contra, the learned Additional State Public Prosecutor vehemently argued and contended that the evidence of P.Ws.5 and 6 are cogent, acceptable and reliable. In their evidence, they have categorically deposed that the appellant by promising the deceased to give biscuit, taken inside the house and thereafter she has been sexually assaulted and under the apprehension that the deceased may tell the same to her parents, appellant has committed the murder by squeezing her neck and thereafter in order to screen the evidence poured the kerosene and lit the fire and thereafter he has thrown the dead body by putting it in a gunny bag. It is his further submission that the contents of the other material clearly goes to show that the deceased was missing from the place from 21.04.2008 and subsequently the body has been traced in a public place and then thereafter the material which has been collected clearly indicates the fact that the appellant has committed the alleged offence. It is his further submission that even the appellant has made an extra judicial confession before the witnesses and if the extra judicial confession is taken into consideration he has admitted the guilt. All these circumstances together indicate the fact that it is the appellant alone who has committed the offence. The trial Court taking into consideration of the material placed on record has come to a right conclusion and has rightly convicted the appellant. There are no grounds made out by the appellant to interfere with the judgment of the trial Court. All these circumstances together indicate the fact that it is the appellant alone who has committed the offence. The trial Court taking into consideration of the material placed on record has come to a right conclusion and has rightly convicted the appellant. There are no grounds made out by the appellant to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed and prayed to dismiss the appeal. 10. Admittedly, this case stands on circumstantial evidence. There are no eyewitnesses to the alleged incident. It is trite law that in order to bring home the guilt of the appellant under circumstantial evidence, all the circumstances are to be linked up with one another then the Court will be in a position to see the chain of events and if all the chain and important links have been established by the prosecution then the prosecution is said to have been proved its case beyond all reasonable doubt. 11. It is trite law that the prosecution has to establish its case with credible, reliable, cogent and acceptable evidence, then under such circumstances the minor discrepancy in the version of said witnesses cannot come to the aid of the appellant. Keeping in view the above said proposition of law, let us consider the evidence and material placed on record. 12. To prove the case of the prosecution, the prosecution has got examined as many as 23 witnesses. To prove the fact that the death of the deceased is a homicidal death, the prosecution got examined P.W.1 who is the inquest Mahazar Panch to Ex.P-1. In his evidence he has deposed that the body of the deceased is removed from the gunny bag and it is seen that the said body was half burnt and dried blood was found on the private parts of the said dead body and a mahazar has been drawn as per Ex.P-1. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness. It also got examined P.W.16, the doctor who has conducted the autopsy over the body of the deceased. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness. It also got examined P.W.16, the doctor who has conducted the autopsy over the body of the deceased. In the evidence of P.W.16 she has deposed that she has noticed deep burn over the left arm, fracture of upper 1/3rd of the left shoulder, superficial burns over the back, posteriorly extending upto lumbar region, fracture of the C2 and C3 cervical bones, lacerated wound measuring 2 x 1 cm, fracture of frontal bone, fracture of left parietal bone and even she has noticed the internal injuries 10 in numbers which are as under:- "1. Fracture of frontal bone 2. Fracture of left parietal bone 3. Brain membrane were intact 4. Brain haemorhagic spots seen 5. Vertebral column haemoragic spots seen at cervical bones i.e. C2 and C3 6. Thoracic Area: All organs were intact, right and left lungs were pale 7. Heard: Left side empty, right side full of blood 8. Abdomen: Wall intact, peritoneum pale, mouth, phraynx aesophagus, stomach contains semi solid food about 200 gms. 9. Liver & Spleen were pale 10. Genito Urinary Organs: Kidney pale, bladder empty, organs of generation external and internal: Vagina red angry looking, labia major edematic, Lebia manner- tear left side of the labia minor and abrasion seen over the labia miner, measuring 2x2 cms. Forechetes tear widening of vaginal opening and contusion over the vaginal wall." Further she has opined that the death of the deceased is due to coma as a result of head injury sustained and recent signs of penetration present in the form of abrasion, contusion in and around the geniteria. Further she has opined that except the burnt injuries, all other injuries are ante mortem injuries and she has issued postmortem report as per Ex.P-11 and gave her opinion as per Ex.P-12. During the course of crossexamination nothing has been elicited so as to discard the evidence of PWs.1, 16 and other witnesses who have seen the body, this witness to establish the fact that the deceased died a natural death. On perusal of the evidence, it indicates that deceased died an unnatural death. On perusal of the evidence it indicates that deceased died an unnatural death. 13. On perusal of the evidence, it indicates that deceased died an unnatural death. On perusal of the evidence it indicates that deceased died an unnatural death. 13. Prosecution has relied much upon the evidence of P.Ws.5 and 6 to establish first circumstance that the deceased has been lastly seen along with the appellant. P.W.5 in his evidence has deposed that the appellant is residing in a rented house. He has further deposed that deceased died about 2 or 2 1/2 half years back. He has further deposed that he had asked the deceased to bring beedi on the date of alleged incident. At about 6.00 p.m. he was sitting near the Panch Shahi Darga and people were talking and from there he had been to market and he came from the market at about 12.00 midnight or 1.00 a.m. and slept. He further deposed that at about 5.00 a.m. or 5.30 a.m. he heard the news that the deceased body was thrown in a public place and he went and saw that there were burn injuries and the blood was dried at her private parts, cloth and chappels were also seen at the place of incident. He has identified the same. This witness has been partly treated as hostile and the prosecution got cross-examined this witness and at that time he has admitted that he was sitting at Panch Shahi Darga on previous day at about 6.00 p.m. and appellant was standing near the katta of the Darga at a distance of 10 to 15 feet and he has further admitted that the deceased was playing and at about 7.00 p.m. when she was playing the appellant took her to his house and thereafter he went to market and he has identified M.O.1-Gunny bag near the dead body. He further admitted that on 25.4.2008 police brought accused by apprehending him to rented house and to the place where the dead body was lying. He has further admitted that all the Lane people have gone there where the accused made the confession. Other suggestions which have been put to him by the prosecution have also been admitted by him. 14. During the course of cross-examination of P.W.5 by the defence, it has been elicited that he is working as hamal in Adathi Shop where the accused was also working as a clerk. Other suggestions which have been put to him by the prosecution have also been admitted by him. 14. During the course of cross-examination of P.W.5 by the defence, it has been elicited that he is working as hamal in Adathi Shop where the accused was also working as a clerk. He has further deposed that on that day police did not call him and asked him. It has been further elicited from the mouth of this witness that after seeing the dead body, he did not meet the father of the victim Nazeer, he has not met and talked with Nazeer and his wife. He has further deposed that he did not tell his family about accused taking the deceased Afrin. He has further deposed that he came to the house at about 11.00 p.m. It has been further elicited that he informed Nazeer 2 or 3 days later about accused taking the victim Afrin, while playing. It has been further elicited that he told the same after 10 days when police came and asked him. He has further admitted that near the Darga, there were shops and always people will be there. He has further admitted that on that evening while sitting in front of Darga a marriage procession was going on, many people have gathered. He has further admitted that Afrin brought beedi for him and went to her house and he went to bazaar and there was beating of drum and other activities. He has also admitted that he went towards market at about 6.00 p.m., thereafter he came at about 1.00 a.m. On close reading of his cross-examination, other suggestions have been denied. 15. On perusal of the evidence of PW.5, in the first instance he has not supported the case of the prosecution and he has been treated as hostile. Subsequently, when the prosecution in crossexamination has suggested. PW.5 has admitted the case of the prosecution. It is trite law that the witness must withstand the evidence during the course of cross- examination and if during the course of crossexamination he fails or the credit worthiness of the witness has been shaken, then under such circumstances the said evidence is not trustworthy, cogent and reliable. Even the conduct of the said witness has to be ascertained under Section 8 of the Evidence Act. Even the conduct of the said witness has to be ascertained under Section 8 of the Evidence Act. Keeping in view the said proposition of law on perusal of the evidence of P.W.5, at the first instance he has deposed that on the date of alleged incident at about 6.00 p.m. he was sitting at Panch Shahi Darga and he has admitted that the deceased was playing and at about 7.00 p.m. while playing the appellant took her to his house, but during the course of cross-examination he has admitted the fact that Afrin by bringing beedi and giving it to him went towards her house at about 6.00 p.m., he went towards the market and he came home only at night, i.e., 1.00 a.m. When a case is made out by the prosecution by making a suggestion to this witness that the deceased was playing at about 7.00 p.m. near the Darga and at that time the appellant has taken the deceased to his house, then under such circumstances when the alleged incident has taken place at 7.00 p.m. as alleged by the prosecution and if P.W.5 has already gone to market at 6.00 p.m. then the presence of this witness at Darga at the place of alleged incident and seeing accused taking the victim at 7.00 p.m. to his house itself creates a doubt. 16. Be that as it may. During the course of cross-examination this witness has admitted the fact that on the date of alleged incident when he was sitting on katta, there was a marriage procession was going on and many people have gathered and the distance between this witness to the place where the deceased was playing was 10-15 feet. When the procession and sound of beating of the drums was there and so much galata was also there in the procession, then under such circumstances from a distance of 10-15 feet the witness hearing the appellant telling to the deceased by promising to give the biscuit, taking her to his house that itself is not believable and acceptable. If a person is at a distance of 10-15 feet away from the place where the deceased was playing and the appellant was taking by telling that he will give biscuit that itself cannot be even heard. If it has to be heard by P.W.5, then the appellant has to loudly announce the said aspect. If a person is at a distance of 10-15 feet away from the place where the deceased was playing and the appellant was taking by telling that he will give biscuit that itself cannot be even heard. If it has to be heard by P.W.5, then the appellant has to loudly announce the said aspect. It is the common sense that if appellant is intending to take the victim to commit sexual assault on her, in that light and taking her by telling that he will give the biscuit, then he will only whisper or solely tell and will not make a big announcement, under such circumstances the witness hearing the said fact at a distance of 10-15 feet by telling that he will give biscuit and took the deceased to his house that itself is not acceptable and believable. 17. Even as could be seen from the evidence of this witness he has admitted that after seeing the body of the deceased neither he has informed the said aspect to the police nor he has met the parents of the deceased and has talked and informed them. 18. Be that as it may, even after coming to know the death of the deceased, neither he has told the said fact to his family members nor to the complainant. Even the statement of this witness has been recorded by the police after 10 days of the incident. If really the said witness was present as contended by the prosecution, if he has heard the appellant telling to the deceased and taking the deceased to his house, no prudent man will keep quite, immediately he will either inform to his family member or to the parents of the victim, under such circumstances the conduct of the said witness itself is not trustworthy so as to rely on the same to bring home the guilt of the appellant-accused. 19. Be that as it may, when PW.5 has deposed that Afrin by bringing beedi for him went towards her house, then the question of the deceased playing near Darga at about 7.00 p.m. and accused taking her to his house, creates a doubt. Admittedly, deceased was lastly seen at about 6.00 p.m. with PW.5 as per his own version. In that light, an adverse inference has to be drawn as against PW.5. Admittedly, deceased was lastly seen at about 6.00 p.m. with PW.5 as per his own version. In that light, an adverse inference has to be drawn as against PW.5. The circumstances under which PW.5 has deposed before the Court it indicates that he is a planted witness for last seen theory. When there are material contradictions in the evidence of PW.5 which goes to the root of the prosecution. Under such circumstances, his evidence cannot be said to be trustworthy and safe to rely upon to bring home the guilt of the accused. 20. I am conscious of the fact that minor contradictions are to be ignored, that too when the witness is illiterate and village rustic. In that background, if the evidence is appreciated, it does not repose the confidence in view of the material contradictions about the timings and the presence of the said witness at the place of alleged incident. Though it is contended by the learned Addl. SPP that time stated is a minor contradictions, when the prosecution is intending to rely upon last seen theory and there is a time gap of more than one hour, the presence of the witness is doubtful. Under such circumstances, it cannot be held as a minor contradiction. It is seen from the records that there are no eye witnesses to the alleged incident and the entire case rests on circumstantial evidence. Under such circumstances, the presence of PW.5 itself creates a doubt at the place of incident and accused taking away the victim. As could be seen from the evidence of PW.5 there is no ambiguity in deposing that he has left the place at about 6.00 p.m. It is not even a stray admission. In examination-in-chief he has deposed that at 6.00 p.m. he was sitting near Panch Shahi Darga and people were talking and from there he had been to market. He came from market in midnight at about 12.00 or 1 O' lock. In that light, the evidence of this witness cannot be acceptable. 21. Be that as it may, if really PW.5 is the witness to the last seen theory, definitely immediately after coming to know about the incident, he could have told to the parents of the victim and to the police, on the next day when police have visited to the place where the body was lying. 21. Be that as it may, if really PW.5 is the witness to the last seen theory, definitely immediately after coming to know about the incident, he could have told to the parents of the victim and to the police, on the next day when police have visited to the place where the body was lying. Informing the said aspect after 2 to 3 days to the parents of the victim and recording of the statement of this witness by the police after 10 days creates a doubt and he appears to be planted witness. In that light, the credibility and trustworthiness of the said witness shakes the case of the prosecution. 22. Secondly, the prosecution has also relied upon the evidence of P.W.6 to establish its last seen theory. In his evidence he has deposed that the appellant is residing in his house as a tenant. The house of the complainant is at a distance of 50-60 feet away from his house. He has further deposed that about two years' back the daughter of the complainant died. He had been to attend second call of nature near the Darga and he saw that people have gathered there and there he has seen the dead body of the deceased and came to know that the body is that of the daughter of the complainant-Nazeer Ahmed. He has also found burn injuries over the dead body of the deceased. Blood has come out from the private part of the deceased. On the date of missing, the mother of the victim was searching and appellant was telling the mother of the deceased to make an announcement in the speaker of Darga about the missing of the child. He has further deposed that he has seen the appellant taking the deceased into his house by telling that he will give biscuit and he has not given statement before the police and he has not stated anything to the police, he only came to know about the death of the deceased. 23. He has further deposed that he has seen the appellant taking the deceased into his house by telling that he will give biscuit and he has not given statement before the police and he has not stated anything to the police, he only came to know about the death of the deceased. 23. Pw.6 has been treated as hostile by the prosecution and when a suggestion has been made, he admitted that the appellant has taken the victim to the place where the body was thrown and when the appellant was brought he was also present and in the presence of police appellant told that on 21.04.2008 at about 7.00 p.m. when the deceased was playing near the Masjid by offering the biscuit brought her and by closing her mouth sexually assaulted and realizing that she may disclose the same to her parents and because of the fear, appellant squeezed the neck of the deceased and to screen the evidence by pouring the kerosene lit the fire and thrown the slippers on the body. 24. During the course of the cross-examination of P.W.6 he has deposed that when the accused told the mother of the deceased to make announcement in the speaker of Masjid about the missing of the child at that time himself and the appellant were present there itself and at that time it was 8.00 p.m. Again this witness has stated though it was said that it was not announced. He has further deposed that on that day at about 4.00 p.m. to 8.00 p.m. the mother of the deceased was searching for the missing child. He has further deposed that he has not stated before the police that the appellant by offering the biscuit took her and he has seen the appellant offering the biscuit and taking the deceased, that he did not tell to the parents of the deceased, in the house of the appellant only husband and wife were there and the children were coming and going and appellant is having two male children aged about 10 to 15 years. The said fact has been admitted. He has further stated that in the house of the accused, his wife and accused used to stay and the children used to come and go. On that day wife was not there in the house. The said fact has been admitted. He has further stated that in the house of the accused, his wife and accused used to stay and the children used to come and go. On that day wife was not there in the house. Even he has admitted that he has not stated before the police that the appellant by offering the biscuit took her inside the house. 25. On perusal of the evidence of PW.6, he has deposed that he has seen the accused taking the victim by offering biscuit inside his house. He has not stated on which date, at what time, under what circumstances and where exactly he was there and what he was doing at that time. In the absence of such details, it cannot be safe on the vague statement that he has seen the accused taking the victim into the house by offering the biscuit is not acceptable in the eye of law. On close perusal of the evidence of PW.6, the credit worthiness of the said witness is not reliable and it is also not trustworthy to rely upon. 26. Be that as it may, even if the conduct of the witness under Section 8 of the Evidence Act is seen, that is also very strange. Looking from any angle, that too when the entire case rests on circumstantial evidence, a presumption cannot be drawn on the basis of the evidence of PW.6. In that light also, the evidence of PW.6 cannot be relied upon. 27. On perusal of the evidence of this witness it indicates that the missing of the child itself was at about 4.00 p.m. and since from 4.00 p.m. to 8.00 p.m. the mother of the deceased was searching for the missing child. When the child is missing at 4.00 p.m. then the case of prosecution that when child was playing near Darga at about 7.00 p.m. accused by enticing took her to his house itself falsifies. 28. Be that as it may. When he has seen the appellant taking the deceased into his house by offering biscuit, then after coming to know that the mother of the deceased was searching for the child from 4.00 p.m. to 8.00 p.m. he has not whispered anything to any of the parents about the appellant taking the deceased into his house. When he has seen the appellant taking the deceased into his house by offering biscuit, then after coming to know that the mother of the deceased was searching for the child from 4.00 p.m. to 8.00 p.m. he has not whispered anything to any of the parents about the appellant taking the deceased into his house. If really, he could have seen, it is the natural conduct of an ordinary man that he will react immediately and say that the appellant has taken the child. When this witness has not disclosed anything, including to his family members and in his evidence he has admitted that he has not stated before the police about the said fact, it is going to be fatal to the case of the prosecution and in that light the evidence of this witness, also appears to be not cogent, acceptable and reliable so as to come to the conclusion that the said witness has lastly seen the appellant taking the deceased by offering the biscuit. By seeing the evidence of PWs.5 and 6, the last seen theory has not been proved and it is not acceptable. 29. On perusal of the evidence of PWs.5 and 6 as discussed above, there are lot of contradictions and improvements. The evidence of PW.5 does not substantiate the fact of he seeing the accused taking the deceased at 7.00 p.m. when he has left the place at 6.00 p.m. and as per the case of the prosecution the deceased was playing at about 7.00 p.m. and accused took her by offering biscuit. In so far as the evidence of PW.6 is concerned, it also creates a doubt in the light of the fact that the mother of the victim was searching about the missing of the victim from 4.00 p.m. to 8.00 p.m. and even PW.6 has not stated in detail as to at what time the place of the accused has been seen lastly along with the deceased. In that light, the benefit of doubt has to go to the accused. 30. Be that as it may, it is well settled proposition of law that last seen theory is extremely a weak piece of evidence and the circumstances could not be proved with sufficient, cogent and strong evidence. In that light, the benefit of doubt has to go to the accused. 30. Be that as it may, it is well settled proposition of law that last seen theory is extremely a weak piece of evidence and the circumstances could not be proved with sufficient, cogent and strong evidence. The conviction based on the same cannot be upheld, that too when PW.5 has admitted that he has left the place at 7.00 p.m. and came only in the night about 1 O'clock and PW.6 has deposed that the mother of the deceased was searching for missing of the deceased from 4.00 p.m. to 8.00 p.m. Hence, this last seen theory by relying upon the evidence of PW.5 and 6 is also not acceptable. 31. In order to establish its case, the prosecution has relied upon one more circumstance, i.e., on the date of alleged incident at about 11.00 p.m. or 11.30 p.m., accused was carrying a gunny bag on his shoulder which was seen by PW.3 at night. 32. In the evidence of PW.3 he has deposed that he is doing the business of selling the amlets by preparing in his Pull Cart near the Bus Stand. He has further deposed that his house is near Panch Shahi Darga. He has further deposed that in order to go to his house, he has to go near Panch Shahi Darga. He has further deposed that the houses of the complainant and the accused were situated at Chorgasthi Lane which is next to his Lane. He has further deposed that about two years' back on the date of the incident, after finishing his business near the Bus Stand at about 11.30 p.m. came near Panch Shahi Darga as his house is in a small Lane, he parked his Pull Cart near Darga and was carrying the utensils and other material from the Pull Cart to his house. At that time, the accused who is before the Court by keeping a gunny bag on his shoulder came from Chorgasthi Lane and proceeded in front of Darga. He has further deposed that in the morning at around 7.30 he went to attend second call of nature in front of Darga at a distance of 50 to 60 feet he saw a gunny bag which was carried by the accused last night. He has further deposed that in the morning at around 7.30 he went to attend second call of nature in front of Darga at a distance of 50 to 60 feet he saw a gunny bag which was carried by the accused last night. It was the same bag which he has seen on previous day carried by accused on his shoulder and the same was told him when police called him. On repeated questioning he has answered that he came to know that in the bag there was a dead body and accused was wearing checks lungi and black shoes. 33. During the course of cross-examination, he has deposed that his house is left side of Panch Shahi Darga at a distance of half a km. and not one km. He has further deposed that while going to his house, Chorgasthi Lane is not seen. He has further admitted that the road in front of Darga proceeds to bazaar. He has further admitted that he goes to house at about 10.00 or 10.30 p.m. The distance between the Bus Stand and his house is one km. and it takes one hour to reach there. He cannot give the name of the persons who were moving and has not seen others. He has further deposed that the gunny bag was tied. 34. Though the learned Addl. SPP contended that the evidence of PW.3 supports the case of the prosecution to establish the circumstance of last seen theory, on perusal of the evidence of this witness it cannot be said at any stretch of imagination this witness is a witness for last seen theory. It may be, to establish another circumstance, but does not help the prosecution to establish the last seen theory. The last seen theory comes into play where the accused and the deceased were seen together lastly prior to the alleged incident. Where the time gap between the point of time when they have been lastly seen together alive and death is at a so small and possibility of any person other than the accused being the author of the crime becomes impossible. This theory has been reiterated in catena of decisions of the Hon'ble Apex Court. In that light, I want to rely upon a decision of the Hon'ble Apex Court in the case Ganpat Singh Vs. This theory has been reiterated in catena of decisions of the Hon'ble Apex Court. In that light, I want to rely upon a decision of the Hon'ble Apex Court in the case Ganpat Singh Vs. State of Madhya Pradesh, (2017) 16 SCC 353 , wherein at paragraphs-10 and 13 it has been observed as under:- "10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows: "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 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." [ See Bodhraj v. State of J&K, (2002) 8 SCC 45 , p. 63, para 31 : 2003 SCC (Cri) 201; Jaswant Gir v. State of Punjab, (2005) 12 SCC 438 : (2006) 1 SCC (Cri) 579 ; Tipparam Prabhakar v. State of A.P., (2009) 13 SCC 534 , pp. 537-38, para 16 : (2010) 1 SCC (Cri) 1105 ; Rishipal v. State of Uttarakhand, (2013) 12 SCC 551 , p. 561, para 25 : (2014) 4 SCC (Cri) 414 ; Krishnan v. State of T.N., (2014) 12 SCC 279 , p. 285, para 22 : (2014) 5 SCC (Cri) 66 ; Kiriti Pal v. State of W.B., (2015) 11 SCC 178 , p. 187-88, para 18 : (2015) 4 SCC (Cri) 343 ; State of Karnataka v. Chand Basha, (2016) 1 SCC 501 , p. 506, para 13 : (2016) 1 SCC (Cri) 368 ; Rambraksh v. State of Chhattisgarh, (2016) 12 SCC 251 , p. 256, para 13 : (2017) 3 SCC (Cri) 716 and Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 : (2017) 4 SCC (Cri) 867 ]" "13. We must also place in balance the testimony of PW 4 that when he enquired regarding whereabouts of his mother, the appellant informed him that she had stayed back at the house of her sister. This, coupled with the fact that the appellant had absconded after the date of the incident is a pointer to a strong suspicion that the appellant was responsible for the death of Shantabai. However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the appellant to the benefit of doubt. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the appellant." 35. Keeping in view the above proposition of law, on perusal of the evidence of PW.3, nowhere he has deposed that he has seen the deceased lastly with the company of the accused. The evidence of PW.3 indicates that about 11.00 p.m. or 11.30 p.m. he saw the accused carrying gunny bag on his shoulder. In that light, his evidence will not help the prosecution to establish the last seen theory. 36. Even on perusal of the evidence of PW.3 and the domineer of this evidence, it is not consistent. The evidence of PW.3 indicates that about 11.00 p.m. or 11.30 p.m. he saw the accused carrying gunny bag on his shoulder. In that light, his evidence will not help the prosecution to establish the last seen theory. 36. Even on perusal of the evidence of PW.3 and the domineer of this evidence, it is not consistent. The prosecution has not established what was the lighting facility available at that night near the alleged place where this witness has seen the accused. In the absence of any such material, the evidence of this witness creates a doubt in the case of the prosecution. 37. Be that as it may, he has deposed that while going to his house, Chorgasthi Lane is not seen. If that is his admission, then he seeing the accused carrying gunny bag and coming from Chorgasthi Lane and proceeding in front of Panch Shahi Darga is not acceptable. On perusal of the evidence of PW.3 no where he has deposed that he was knowing the accused earlier and in that light he identified him. He only identified the accused on the basis of the gunny bag and not by seeing his face. Even in examination-in-chief, the evidence indicates that in the night he identified the gunny bag and morning also he identified the said bag and told that it is the same bag which was carried by the accused. If the accused is not known to the witness PW.3, then under such circumstances, the Investigating Agency ought to have held the test identification parade. But in the case on hand, no such test identification parade has been conducted. In that light, how PW.3 identified the accused as the same person who has been seen during night hours, creates a doubt. Even in his evidence, he has not stated the description of the accused anywhere. In the cross-examination, PW.3 has admitted that he cannot identify the persons walking during the night. When that being the case, that too when the accused was not known to him how he identified the accused alone creates a doubt in the statement of this witness. Even assuming that he was present, the circumstances indicate that he was busy with taking utensils and other material from Pull Cart to his house. When that being the case, that too when the accused was not known to him how he identified the accused alone creates a doubt in the statement of this witness. Even assuming that he was present, the circumstances indicate that he was busy with taking utensils and other material from Pull Cart to his house. Even during the course of crossexamination, PW.23, the Investigating Officer has admitted that PW.3 has not stated in his statement before him that in the morning while going to attend the second call of nature by seeing the gunny bag, he identified as the one carried by the accused. That evidence is a material improvement which goes to the root of the case of the prosecution. 38. Be that as it may, even after careful perusal of the evidence of PW.3 it indicates that even after seeing the said gunny bag on the next day morning while going to attend the second call of nature he did not disclose the fact that the accused was carrying the said gunny bag on the previous night either to the persons who were present at the scene of occurrence or to the parents of the victim or to the police immediately. If really he has seen the accused carrying the gunny bag and if he has identified the same, definitely he could have disclosed the said fact to the persons present and to the police. In that light, it appears that he is a planted witness only to suit the circumstance. In that light, the evidence of PW.3 is not trustworthy and reliable so as to accept the same in respect of the said circumstance. 39. Another circumstance on which the prosecution is relying upon is that of recovery of incriminating articles at the instance of the accused. In that light the prosecution has relied upon the evidence of PWs.8 and 23. PW.8 is the mahazar witness for the recovery. In his evidence he has deposed that three years' back police called him to the rented house of accused, co-pancha was also present. Accused by going inside the house shown the place where he has burnt the body of the child by pouring kerosene. Kerosene can and matchbox which were in front of hearth were shown and the same have been seized by drawing a mahazar at Ex.P6. Accused by going inside the house shown the place where he has burnt the body of the child by pouring kerosene. Kerosene can and matchbox which were in front of hearth were shown and the same have been seized by drawing a mahazar at Ex.P6. He has further deposed that after drawing mahazar at Ex.P6 in the outer room of his house accused produced lungi, banian which were worn by him and a gunny bag. The same have been seized by drawing a mahazar at Ex.P7. He has further deposed that thereafter he took them to the place where the dead body was thrown and there a mahazar was drawn as per Ex.P8. During the course of cross-examination he has admitted that all the three mahazars have been signed by him in the Police Station. 40. Pw.23 is the Investigating Officer, who has deposed that on 25.4.2008 PW.20 Police sub-Inspector produced accused before him. He recorded his voluntary statement as per Ex.P23 on the same day in the presence of panchas. As shown by the accused spot mahazar has been drawn as per Ex.P6 and seized kerosene can and match box. He has further deposed that the accused produced the clothes worn by him while committing the offence and the same have been seized by drawing mahazar as per Ex.P7. He has further deposed that thereafter as shown by the accused, he has drawn the mahazar where the body was thrown as per Ex.P8. 41. In his cross-examination, he has admitted that in the remand application at Ex.D2 he has not mentioned which articles have been seized and it is only shown about drawing of mahazar and recording of further statement of the witnesses. He has further admitted that in Ex.P5, spot mahazar it has not been mentioned whether the dead body was inside or outside the gunny bag and in which situation the body was lying. He has further admitted that in Ex.P1, inquest mahazar it has been mentioned that dead body was in supine position and the body was kept on a gunny bag. 42. In order to prove the confessional statement made by the accused under Section 27 of the Evidence Act, the Investigating Officer is required to state the words used by the accused in making the disclosure statement. Mere marking of the entire statement of the accused is not enough. 42. In order to prove the confessional statement made by the accused under Section 27 of the Evidence Act, the Investigating Officer is required to state the words used by the accused in making the disclosure statement. Mere marking of the entire statement of the accused is not enough. The statement of the accused has to be proved in accordance with law that the said disclosure was within the exclusive knowledge of the accused. It is the trite law that Section 27 of the Evidence Act is not only a proviso to Section 26, but also cuts down the operation of Sections 24 and 25. Although confession made by the accused while in police custody is inadmissible, Section 27 acts as an exception to the extent of the information as relates to distinctly the discovery of the information which is exclusively within the knowledge of the accused. The requisite condition for application of the principles under Section 27 of the Evidence Act, the discovery of the fact must be first deposed to and thereupon so much of the information as relates distinctly to the facts thereby discovered is required to be proved. In that light, in order to prove the same, the Investigating Officer has to depose it specifically that portion of the discovery of the fact by getting it marked and proved. But as could be seen from the trial Court records, the entire voluntary statement of the accused has been got marked as Ex.P23. It reflects that the entire statement of the accused has been got marked as Ex.P23 and no separate marking has been made with regard to discovery of fact. PW.23 has not deposed as to what the accused has confessed. What is required under Section 27 of the Evidence Act is that portion of the information contained in the confessional statement has to be proved which is in the form of proviso to Sections 25 and 26. To put it in other words, so much of such information which is received from the accused of any offence who is in police custody which has led to discovery of any fact may be used as against the accused. Such information as given must relate distinctly to the fact discovered. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Indra Dalal Vs. Such information as given must relate distinctly to the fact discovered. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Indra Dalal Vs. State of Haryana, (2015) 11 SCC 31 , wherein at paragraphs-22 and 23 it has been observed as under:- "22. The only portion of the information contained in the confessional statements that may be proved is provided under Section 27 of the Evidence Act, which reads as under: "27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 23. It is clear that Section 27 is in the form of proviso to Sections 25 and 26 of the Evidence Act. It makes it clear that so much of such information which is received from a person accused of any offence, in the custody of a police officer, which has led to discovery of any fact, may be used against the accused. Such information as given must relate distinctly to the fact discovered. In the present case, the information provided by all the appellantaccused in the form of confessional statements, has not led to any discovery. More starkly put, the recovery of scooter is not related to the confessional statements allegedly made by the appellants. This recovery was pursuant to the statement made by Harish Chander Godara. It was not on the basis of any disclosure statements made by these appellants. Likewise, insofar as confessional statement (Mark A) allegedly given by Jaibir is concerned, that is again in another FIR. We shall come to its admissibility separately. Therefore, the situation contemplated under Section 27 of the Evidence Act also does not get attracted. Even if the scooter was recovered pursuant to the disclosure statement, it would have made the fact of recovery of scooter only, as admissible under Section 27 of the Evidence Act, and it would not make the so-called confessional statements of the appellants admissible which cannot be held as proved against them." 43. In another decision in the case of Mangu Singh Vs. In another decision in the case of Mangu Singh Vs. Dharmendra, (2015) 17 SCC 488 , wherein at paragraph-14 it has been observed as under:- "14. The next aspect for our consideration is the recovery of the country-made pistol and an empty cartridge. To begin with, it is undisputed from the ballistic report that the gun was the same from which the shot was fired and also the formal witnesses stood the test which established that the gun was recovered in their presence. The prosecution strongly relied on this evidence, and even the trial court was convinced by this piece of evidence. However, the High Court pointed out the relevant provision i.e. Section 27 of the Evidence Act, 1872, and clarified that it is not the material recovery which has to be proved, but the disclosure based upon which the recovery is made. The pivotal fact is making of the statement to the police which leads to recovery. The High Court rightly pointed out that during the investigation, no statement disclosing the fact/material to be discovered was proved before the court. In our opinion, the High Court is correct to point out this serious lacuna." 44. A co-ordinate Bench of this Court of which I am also member in the case of Mohammed Sultan & others Vs. The State of Karnataka in Criminal Appeal No.3621/2012 disposed of on 17.1.2017 had occasion to deal with the said situation, wherein at paragraphs-23 and 24 it has been observed as under:- "23. PW.24, the Investigating Officer has deposed that on 30.10.2011 Iranna, PSI of Bemalkheda Police Station produced accused No.1-Mohd.Sultan along with the report at Ex.P.17. PW.24 has interrogated him and recorded his voluntary statement as per Ex.P22. Accused No.1 has stated before him that after committing the crime, he concealed the ornaments found on the dead bodies and autorikshaw as well as the rope used for commission of the offence. PW.24 has also deposed that ASI-Shankar produced accused No.2-Syed Tayab with the report at Ex.P16. He interrogated accused No.2 and recorded his voluntary statement as per Ex.P23. He has further deposed that PSI produced accused No.3 before him by filing a report at Ex.P18. He interrogated accused No.3 and recorded his voluntary statement as per Ex.P24. He has also deposed that accused No.3-Shaik Abed had kept the silver chain in his house. He interrogated accused No.2 and recorded his voluntary statement as per Ex.P23. He has further deposed that PSI produced accused No.3 before him by filing a report at Ex.P18. He interrogated accused No.3 and recorded his voluntary statement as per Ex.P24. He has also deposed that accused No.3-Shaik Abed had kept the silver chain in his house. On 31.10.2011 the accused led him to Vithalpur Forest Area along with the panch witnesses. Accused have shown the ornaments found on the dead bodies, namely, one pair of silver chain, ear studs, broken mobile phone pieces, one necklace and one more pair of ear studs which were seized by them by preparing a mahazar. Thereafter, accused No.3 led them to his house and produced silver chain from his house and the same was seized in the presence of panchas. Accused No.2 also led them to his house. He has shown the auto and produced the rope which was used for commission of offence. The said articles have been seized by preparing mahazar at Ex.P4. 24. Before considering the above evidence, it is necessary to analyze the admissibility or otherwise under Section 27 of the Indian Evidence Act. On a close reading of Section 27 of the said Act, it reveals that what is admissible is the information leading to recovery and the same has to be proved by adducing evidence. It indicates that said recovery must be at the instance of the accused. It also indicates that the voluntary statement of the accused with reference to the recovery, has to be recorded in the words of the accused, in the same fashion and the same has to be marked separately. Thereafter, the Investigating Officer while giving such evidence should reproduce the contents of such voluntary statement made by the accused leading to discovery. Only if all these things were to be exist in the evidence, then the Court can rely upon such recovery evidence and on that basis, an inference can be drawn that the accused has committed the alleged offence." 45. Keeping in view the ratio laid down in the above decisions, on perusal of the evidence of PW.23, that portion of the incriminating material or information has not been got marked and the entire statement has been marked. Keeping in view the ratio laid down in the above decisions, on perusal of the evidence of PW.23, that portion of the incriminating material or information has not been got marked and the entire statement has been marked. In that light, it can safely be held that the disclosure statement of the accused has not been proved in accordance with law and the recovery is not acceptable. 46. Be that as it may, even on perusal of the evidence of PW.20, the appellant-accused was apprehended on 25.4.2008 at about 5.00 a.m., Ex.P1- inquest was drawn on 22.4.2008. Father of the victim PW.4 who has seen the dead body in the first instance. PWs.5, 6, 7 and 8 who have also seen the dead body have clearly stated about the dead body lying at that place where Ex.P8 has been drawn. In that light, the evidence of PWs.8 and 23 regarding the discovery of the fact of the place where the dead body was thrown by the accused is not admissible since already it was within the knowledge of the general public as well as the police on 22.4.2008 itself. When already the police identified the place, public was also knowing about dead body lying at that place. Evidence of PWs.8, 23 and Ex.P8 are not acceptable so as to come to the conclusion that at the instance of the accused place where the body was thrown came to the knowledge of Investigating Officer. This proposition of has been laid down by the Hon'ble Apex Court in the case of Ganga Bai Vs. State of Rajasthan, (2016) 15 SCC 645 , wherein at paragraph-10 it has been observed as under:- "10. On the second circumstance, on verification of the place of incident by the appellant, the High Court rightly discarded the same holding that the police had already identified the place where the dead bodies were dumped. The other circumstantial evidence against the appellant is the recovery of weapon of offence. It has come in evidence that the recovery was effected only on the basis of the disclosure made by the appellant as per Ext. P- 67. It has come in evidence that Ext. P-53 dhariya contained human blood. The third piece of circumstantial evidence found against the appellant is the recovery of bloodstained clothes belonging to her as per Ext. P-66 disclosure. P- 67. It has come in evidence that Ext. P-53 dhariya contained human blood. The third piece of circumstantial evidence found against the appellant is the recovery of bloodstained clothes belonging to her as per Ext. P-66 disclosure. The appellant could not give any explanation of the presence of human blood on her clothes recovered as per Ext. P-52. Though the anklet, said to be belonging to the deceased Sunanda, was also recovered pursuant to her disclosure, the High Court has discarded the same on the ground that there was no proper identification." 47. Be that as it may, even as could be seen from the evidence of PW.8, accused was already present along with the police and he entered his house and showed the place where he has burnt the child by pouring the kerosene, where they seized kerosene can- MO.7 and match box-MO.8 by drawing mahazar as per Ex.P6. On close reading of Ex.P6, it indicates that there is no mention about marks for having burnt the body of child. If really the body was burnt, some pieces of burn might have been fallen or some stains might be there on the ground. Even it has not been mentioned that the said place was smelling kerosene. On further perusal of evidence of PW.8, accused entered the house and produced the seized articles M.Os.7 and 8, but PW.8 has not deposed that the accused opened the lock. But as could be seen from Ex.P6 it indicates that accused by opening the lock of the door went inside the house. If really the house was locked and the key was there with accused, when he was apprehended on 25.4.2008, a personal search would have been conducted and they might have noticed the key. But nowhere the personal search was done and it has been stated even by PWs.2 and 3 that accused was having the key of the house. In the absence of any such material, accused opening the key and entering the house and producing articles creates a doubt. When already the police were present it indicates that the police were having the knowledge of the discovery. 48. Even as could be seen from the evidence of PW.6, the owner of the house, he has deposed that in the said house, along with accused, his wife used to stay and children used to visit the house. When already the police were present it indicates that the police were having the knowledge of the discovery. 48. Even as could be seen from the evidence of PW.6, the owner of the house, he has deposed that in the said house, along with accused, his wife used to stay and children used to visit the house. In that light, the ingredients of Section 27 of Evidence Act are not going to be satisfied to prove the case. Under Section 27 of the Evidence Act, it must be within the exclusive knowledge of the accused. When in the said house his wife and children are residing and the said house is accessable to them, then it cannot be held that the said articles seized from the house were exclusively within the knowledge of the accused. In that light also, the prosecution has utterly failed. In this connection, I want to rely upon the decision in the case of Vijay Kumar Vs. State of Rajasthan, (2014) 3 SCC 412 , wherein at paragraph-15 it has been observed as under:- "15. The remaining last Circumstance No. (iv) pertains to the recoveries made pursuant to the disclosure made by the appellants: 15.1. The investigating officer, PW 85 Shiv Prasad Sharma has claimed that he arrested A- 1 Atma Ram on 9-4-1986 and on inquiry he gave Ext. P-105 information which led to the recovery of ornaments mentioned in Ext. P-8, list in the presence of witnesses. PW 5, Santbax Singh and PW 6, Madanlal Bhavaria are the witnesses to the said recovery. Both of them have testified that Accused 1 Atma Ram took them and the police to his house and entered a room in the courtyard and opened an almirah and took out a plastic bag and handed it over, which contained ornaments of gold and silver and the same was recovered by memo under Ext. P-8, list. 15.2. The further testimony of the investigating officer is that he arrested A-3 Vijay Kumar on 26-4-1986 and on inquiry he gave Ext. P-111, information which led to the recovery of ornaments under Ext. P-5, memo in the presence of witnesses. PW 4 Tota Ram is the witness for the said recovery and according to him A-3 Vijay Kumar took him and the police to his house and produced silver and gold articles and they were recovered under Ext. P-5, memo, which he attested. P-5, memo in the presence of witnesses. PW 4 Tota Ram is the witness for the said recovery and according to him A-3 Vijay Kumar took him and the police to his house and produced silver and gold articles and they were recovered under Ext. P-5, memo, which he attested. 15.3. The relevant portion of Ext. P-5, memo reads as follows: "Accused Vijay asked for key of lock of baithak (room) from father through his brother's wife of Kailash, and opened the lock and then entered towards right side of baithak where in an almirah a box (old) was found and opened it, and found a cloth bag (potali) which was tied up. The accused told that the potali contains ornaments. When potali was opened found the following ornaments of gold and silver and a wristwatch ." 15.4. Both the abovesaid recoveries have been made from the respective houses of the appellant-accused where their families were residing. In fact A-3 Vijay Kumar obtained the key from his father for opening the lock. In such circumstances it cannot be said that the said articles were in the exclusive possession of the appellant-accused and they came to be recovered only on the information furnished by them." 49. Keeping in view the ratio laid down in the aforesaid decision and the discussion made, I am of the considered opinion that the recovery has not been proved and established by the prosecution in accordance with law and in that light, the said circumstance will not help the case of the prosecution in any manner. 50. Be that as it may, even as could be seen from PM report Ex.P11, the following injuries were found on the body of the deceased:- "1. Fracture of frontal bone 2. Fracture of left parietal bone 3. Brain membrane were intact 4. Brain haemorhagic spots seen 5. Vertebral column haemoragic spots seen at cervical bones i.e. C2 and C3 6. Thoracic Area: All organs were intact, right and left lungs were pale 7. Heard: Left side empty, right side full of blood 8. Abdomen: Wall intact, peritoneum pale, mouth, phraynx aesophagus, stomach contains semi solid food about 200 gms. 9. Liver & Spleen were pale 10. Vertebral column haemoragic spots seen at cervical bones i.e. C2 and C3 6. Thoracic Area: All organs were intact, right and left lungs were pale 7. Heard: Left side empty, right side full of blood 8. Abdomen: Wall intact, peritoneum pale, mouth, phraynx aesophagus, stomach contains semi solid food about 200 gms. 9. Liver & Spleen were pale 10. Genito Urinary Organs: Kidney pale, bladder empty, organs of generation external and internal: Vagina red angry looking, labia major edematic, Lebia manner- tear left side of the labia minor and abrasion seen over the labia miner, measuring 2x2 cms. Forechetes tear widening of vaginal opening and contusion over the vaginal wall." 51. In the evidence of the doctor-PW.16 she has opined that the death is due to coma as a result of head injuries. If the deceased has sustained fracture of frontal bone, left parietal bone, brain haemoragic spots, and fracture of cervical bones, i.e., C2 and C3, the same could have been caused by using some hard and blunt substance or instrument or by hitting with such articles. But the prosecution has not made any efforts to explain as to how the deceased sustained those fractures and injuries and no articles have been seized or in the mahazars anywhere finding of stains of blood has been mentioned. In the absence of any such material, the theory put forth by the prosecution that the accused after committing the sexual assault has caused the murder of the deceased by squeezing her neck fails, when PW.16, the doctor has opined that death is due to fractures suffered by the deceased, and it is also not acceptable. In that light, the version of the prosecution theory itself changes. In that light, benefit of doubt goes to the accused. 52. Even as could be seen from the PM report at Ex.P11 there were signs of penetration in the form of abrasion, contusion in and around the geniteria. But as could be seen from the FSL report at Ex.P13, vaginal swab has been tested, but the presence of seminal stains was found negative and even the opinion as per Ex.P12 by PW.16 substantiates the fact that the presence of seminal stains was found negative. Even the lungi and banian which were said to be worn by the accused were sent to chemical examination and as per the report at Exs.P13 and P21, stains were found negative. Even the lungi and banian which were said to be worn by the accused were sent to chemical examination and as per the report at Exs.P13 and P21, stains were found negative. If really the accused has taken the victim and has sexually assaulted her and under the apprehension that she may disclose, if he has done away with her life, definitely in the vaginal swab the presence of stains ought to have been there. In that light also, the prosecution has failed to establish the case as it alleged. 53. This Court is conscious of the fact that a minor child of 6 years old has been abducted, sexually assaulted and brutally murdered, thereafter in order to screen the evidence the body has been burnt. But it is trite law that the Court has to assess the evidence by putting it into legal scale and if legal, cogent, appreciable evidence is available, then under such circumstances the Court can exercise its power and convict the accused, but the Court cannot convict the accused on moral or other consideration, only because there is sexual assault on the minor girl and brutal murder has taken place. This Court is conscious of the fact with regard to the arguments advanced by the learned Additional State Public Prosecutor contending that inconsistency, exaggerations, embellishments are common phenomena in the evidence of rustic villagers and the same can be ignored and that the entire case of the prosecution if it is seen the testimony if it does not falsifies, then under such circumstances the same may be accepted. But it is trite law that the entire testimony of such witness is shaky, false and if contradictions and improvements are there if they goes to root of the case of the prosecution, then under such circumstances the contradiction, exaggerations, embellishments are not going to help the case of the prosecution. The said contradictions, inconsistencies, exaggerations, embellishment which have been brought during the course of the cross-examination of these two witnesses that itself appears to be fatal to the case of the prosecution. In that light, the evidence of P.Ws.3, 5, 6, 8 and 23 is not cogent and trustworthy so as to accept the same so as to bring home the guilt of the accused beyond all reasonable doubt. 54. In that light, the evidence of P.Ws.3, 5, 6, 8 and 23 is not cogent and trustworthy so as to accept the same so as to bring home the guilt of the accused beyond all reasonable doubt. 54. Be that as it may, on totality of the consideration of all relevant facts and circumstances, when the evidence of PWs.3, 5 and 6 is wholly unacceptable being fraught with improbabilities, doubts and oddities in conceivable with normal human conduct or behavour, then it cannot be acted upon as the basis of conviction. Prosecution is required to prove the material on which the Court can reasonably act for reaching the supposition on a certain fact which exists. Proof of fact depends upon the probability of its having existed. What is said to be "proved", "disproved", "not proved" and "reasonable doubt" came up before the Hon'ble Apex Court in the case of Kuna @ Sanjaya Behera Vs. State of Odisha, (2018) 1 SCC 296 , wherein at paragraphs-21 to 23 it has been observed as under:- "21. With reference to Section 3 of the Evidence Act, which defines "proved", "disproved" and "not proved", this Court in Lokeman Shah v. State of W.B. [ Lokeman Shah v. State of W.B., (2001) 5 SCC 235 : 2001 SCC (Cri) 829 : AIR 2001 SC 1760 ] recalled its observations in M. Narsinga Rao v. State of A.P. [ M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 : 2001 SCC (Cri) 258 : 2001 Cri LJ 515 ] as hereinbelow: (Lokeman Shah case [ Lokeman Shah v.State of W.B., (2001) 5 SCC 235 : 2001 SCC (Cri) 829 : AIR 2001 SC 1760 ] , SCC p. 244, para 17) "17. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of a particular case, to act upon the supposition that it exists (vide Section 3 of the Evidence Act). What is required is materials on which the court can reasonably act for reaching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him ." 22. What is required is materials on which the court can reasonably act for reaching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him ." 22. Prior thereto, in Vijayee Singh v. State of U.P. [ Vijayee Singh v. State of U.P., (1990) 3 SCC 190 : 1990 SCC (Cri) 378 ] , this Court dwelling on the same theme, had recorded the following exposition: (SCC pp. 217-18, para 28) "28. It can be argued that the concept of "reasonable doubt" is vague in nature and the standard of "burden of proof" contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile both. But the general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. The "reasonable doubt" is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by "a prudent man"." 23. The quintessence of the enunciation is that the expression "proved", "disproved" and "not proved", lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate concrete standard to measure "proof", full effect has to be given to the circumstances or conditions of probability or improbability. It has been expounded that it is this degree of certainty, existence of which should be arrived at from the attendant circumstances, before a fact can be said to be proved." 55. Keeping in view the said ratio, it is clear that if prosecution proves the existence of certain facts, then burden shifts on the accused to prove. If it is not proved, burden will not shift and case is said to be not proved. In that light, case of the prosecution has to fail. The trial Court has completely ignored the proposition of law and only on presumption, hypothesis and imagination it has taken a contrary view. In that light also, it requires to be interfered with. 56. Next circumstance on which the prosecution is relying upon is that of extra judicial confession, which is said to have been made by the appellant in the presence of P.Ws1, 5, 6, 9 and 10. On perusal of the evidence of all these witnesses they have deposed that when the appellant has been brought to the place of incident by the police, at that time the appellant confessed about the commission of the offence. On perusal of the evidence of all these witnesses they have deposed that when the appellant has been brought to the place of incident by the police, at that time the appellant confessed about the commission of the offence. It is well established principles of law that any confession made before the police is not admissible. Though the prosecution is intending to contend that the confession has been made before the general public, the same is admissible. But, when admittedly the accused was brought to the place of incident by the police, he was in police custody, in that light, it is not admissible. 57. Be that as it may usually the confessions are going to be made not in public. In the first instance the accused himself must repose confidence in the said witness before whom he is gong to confess and if with that particular person he is not reposing any confidence, then the said extra judicial confession is also not trustworthy and reliable. It is trite law that the case of the prosecution cannot be proved on the basis of the extra judicial confession and it is considered to be a very weak type of evidence and no guilt can be proved on such evidence. Taking into consideration the said aspect, I am of the considered opinion that the said contention of the learned Addl. State Public Prosecutor that there is extra judicial confession is also not acceptable in law. 58. Last circumstance on which the prosecution is relying upon is that of motive. It is alleged by the prosecution that there was business rivalry between the accused and the complainant. But as could be seen from the evidence of PW.2 the complainant, he has not whispered any thing about any business rivalry between them. It is the case of prosecution that accused was working as a clerk in Adathi shop, where PW.5 was working as hamal and in his evidence he has not deposed about rivalry between them. In that light, motive has not been established by the prosecution. 59. Be that as it may, where the charge sought to be proved only on circumstantial evidence, motive plays an important role or part in order to tilt the scale. For this proposition of law, I want to rely upon the decision of the Hon'ble Apex Court in the case of Kuna @ Sanjaya Behera Vs. 59. Be that as it may, where the charge sought to be proved only on circumstantial evidence, motive plays an important role or part in order to tilt the scale. For this proposition of law, I want to rely upon the decision of the Hon'ble Apex Court in the case of Kuna @ Sanjaya Behera Vs. State of Odisha (cited supra), wherein at paragraph-20 it has been observed as under:- "20. That in a case where the charge is sought to be proved only on circumstantial evidence, motive plays an important part in order to tilt the scale was, amongst others underscored in Mahamadkhan Nathekhan v. State of Gujarat, (2014) 14 SCC 589 : (2015)1 SCC(Cri) 435 ." 60. When the prosecution has failed to establish and prove the motive in a case depending on circumstantial evidence, it is a factor that weighs in favour of accused. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Anwar Ali & another Vs. State of Hiimachal Pradesh in Criminal Appeal No.1121/2016, disposed of on 25.9.2020, wherein at paragraph-9 it has been observed as under:- 9. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in the case of Suresh Chandra Bahri v. State of Bihar, (1995) Supp1 SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in the case of Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paragraphs 25 and 26, it is observed and held as under: "25. In State of U.P. v. Kishanpal, (2008) 16 SCC 73 , this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 8788, paras 38-39) "38. ... In paragraphs 25 and 26, it is observed and held as under: "25. In State of U.P. v. Kishanpal, (2008) 16 SCC 73 , this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 8788, paras 38-39) "38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. 39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction." 26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v. State of T.N, (2009) 9 SCC 152 )." In view of the ratio laid down in the aforesaid decision, accused deserves to be acquitted. 61. It is not in dispute that the entire case rests on circumstantial evidence. In case of circumstantial evidence, the prosecution has to establish that the circumstances proved lead to one and only conclusion towards guilt of the accused. Evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Rukia Begum Vs. State of Karnataka, (2011) AIR SC 1585 , wherein at paragraph-10, it has been held as under:- 10. Evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Rukia Begum Vs. State of Karnataka, (2011) AIR SC 1585 , wherein at paragraph-10, it has been held as under:- 10. "No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt. In our opinion, the trial court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned." 62. It is also the trite law that all the circumstances ought to be linked up with one another and the Court will be in a position to see the chain of events and if the chain of all events and important links is established by the prosecution then it is said to have been proved. It is also the trite law that all the circumstances ought to be linked up with one another and the Court will be in a position to see the chain of events and if the chain of all events and important links is established by the prosecution then it is said to have been proved. Keeping in view of the ratio laid down in the aforesaid decision, on perusal of the evidence placed before the Court, there is no consistency links in the chain of events. As discussed above, there are so many limps and gaps as well as doubts about the existence of the facts as well as circumstance. In that light, it creates a doubt in the case of the prosecution about the accused being involved in the alleged crime. It is trite law that if any benefit of doubt arises, then the benefit should be given to accused. In that light, the trial Court ought to have acquitted the accused by giving the benefit of doubt. In that light, the judgment of the trial Court is to be interfered with. 63. It is the submission of the learned Addl. SPP that the trial Court while sentencing the accused ought to have imposed the sentence consecutively for the offences punishable under Sections 376 and 302 of IPC. It is his further submission that imprisonment for life means till reminder of convict's natural life or biological life. I have given my thoughtful consideration to the submissions made by the learned Addl. SPP and law on the point. 64. Though there is no need to discuss the above said points raised by the learned Addl. SPP as I have already come to the conclusion that prosecution has failed to prove its case, a question of law and legal aspect has been put forth before this Court, I am answering those aspects. 65. In the first instance, the submission of the learned Addl. SPP is not acceptable patently for the simple reason that admittedly the present appeal has been preferred by the accused and State has not come up in appeal by challenging the sentence awarded by the trial Court. When the State has not preferred any appeal, that itself goes to show that it is not having any grievance in so far as the judgment of the conviction and order of sentence passed by the trial Court is concerned. When the State has not preferred any appeal, that itself goes to show that it is not having any grievance in so far as the judgment of the conviction and order of sentence passed by the trial Court is concerned. In that light, the submission of the learned Addl. SPP is not acceptable in law. 66. Be that as it may, though it is contended that the sentence ought to have been awarded consecutively, as per Section 427 of Cr.P.C., the sentence cannot be directed to run consecutively. For the purpose of brevity I quote Section 427 of Cr.P.C., which reads as under:- "427. Sentence on offender already sentenced for another offence (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the court directs that the subsequent sentence shall run concurrently with such previous sentence: PROVIDED that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence." 67. I am conscious of the fact that the Court is having wider power and discretion to award suitable sentences for several offences committed by the offenders. The order in which such sentences run can also be stipulated by the Court awarding such sentence. On close reading of Section 427 of Cr.P.C. the trial Court has been given discretion when accused has been convicted for more than one offence in a single transaction and under such circumstances, the sentence shall run concurrently and not consecutively. If the consecutive sentence is passed for the single transaction of the offences, the Court has to give special reasons and circumstances. If the consecutive sentence is passed for the single transaction of the offences, the Court has to give special reasons and circumstances. The question as to how the sentences are to be awarded and whether the Court can pass an order of sentence which should run consecutively came before the Constitutional Bench of the Hon'ble Apex Court in the case of Muthuramalingam & Others Vs. State, Rep.by Inspector of Police, (2016) AIR SC 3340 wherein the reference has been made to decide the question as to "Whether consecutive life sentences can be awarded on a convict on being found guilty of a series of murders for which he has been tried in a single trial?" 68. While answering the aforesaid issue, the Hon'ble Apex Court has held that the sentence cannot be directed to run consecutively under the circumstance. At paragraphs-17, 20, 21, 31, it has been observed as under:- "17. Reference may also be made to the decisions of this Court in Subash Chander v. Krishan Lal [ Subash Chander v. Krishan Lal, (2001) 4 SCC 458 : 2001 SCC (Cri) 735 ] , Shri Bhagwan v. State of Rajasthan [ Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC 296 : 2001 SCC (Cri) 1095 ] and Swamy Shraddananda (2) v. State of Karnataka [ Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113 ] , which too reiterate the legal position settled by the earlier mentioned decisions of this Court. A recent Constitution Bench decision of this Court in Union of India v. Sriharan [ Union of India v.Sriharan, (2016) 7 SCC 1 ] , also had another occasion to review the case law on the subject. A recent Constitution Bench decision of this Court in Union of India v. Sriharan [ Union of India v.Sriharan, (2016) 7 SCC 1 ] , also had another occasion to review the case law on the subject. Relying upon the decisions of this Court in Sambha Ji Krishan Ji [ Sambha Ji Krishan Ji v. State of Maharashtra, (1974) 1 SCC 196 : 1976 SCC (Cri) 102 ] , Ratan Singh [ State of M.P. v.Ratan Singh, (1976) 3 SCC 470 : 1976 SCC (Cri) 428 ] , Maru Ram [ Maru Ram v. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112 ] and Ranjit Singh [ Ranjit Singh v. UT of Chandigarh, (1984) 1 SCC 31 : 1984 SCC (Cri) 27 ] cases this Court observed: "It is quite apparent that this Court by stating as above has affirmed the legal position that the life imprisonment only means the entirety of the life unless it is curtailed by remissions validly granted under the Code of Criminal Procedure by the appropriate Government or under Articles 72 and 161 of the Constitution by the Executive Head viz. the President or the Governor of the State, respectively." "20. Relying upon Godse [ Gopal Vinayak Godse v. State of Maharashtra, (1961) 3 SCR 440 : AIR 1961 SC 600 : (1961) 1 Cri LJ 736 ] and Maru Ram [ Maru Ram v. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112 ] cases, this Court held in Ranjit Singh case [ Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC 304 : 1991 SCC (Cri) 965 ] that imprisonment for life is a sentence for remainder of the life of the offender. There was, therefore, no question of a subsequent sentence of imprisonment for life running consecutively as per the general rule contained in sub-section (1) of Section 427. This Court observed: (SCC pp. 310-11, para 8) "8. There was, therefore, no question of a subsequent sentence of imprisonment for life running consecutively as per the general rule contained in sub-section (1) of Section 427. This Court observed: (SCC pp. 310-11, para 8) "8. As rightly contended by Shri Garg, and not disputed by Shri Lalit, the earlier sentence of imprisonment for life being understood to mean as a sentence to serve the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might. It is this obvious situation which is stated in sub-section (2) of Section 427 since the general rule enunciated in sub-section (1) thereof is that without the court's direction the subsequent sentence will not run concurrently but consecutively. The only situation in which no direction of the court is needed to make the subsequent sentence run concurrently with the previous sentence is provided for in sub-section (2) which has been enacted to avoid any possible controversy based on sub-section (1) if there be no express direction of the court to that effect. Sub-section (2) is in the nature of an exception to the general rule enacted in subsection (1) of Section 427 that a sentence on subsequent conviction commences on expiry of the first sentence unless the court directs it to run concurrently. The meaning and purpose of sub-sections (1) and (2) of Section 427 and the object of enacting sub-section (2) is, therefore, clear." "21. Having said that, this Court in Ranjit Singh case [ Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC 304 : 1991 SCC (Cri) 965 ] declared that once the subsequent imprisonment for life awarded to the prisoner is superimposed over the earlier life sentence, the grant of any remission or commutation qua the earlier sentence of life imprisonment will not ipso facto benefit the prisoner qua the subsequent sentence of life imprisonment. Such subsequent sentence would continue and shall remain unaffected by the remission or commutation of the earlier sentence. This Court said: (SCC p. 311, para 9) "9. Such subsequent sentence would continue and shall remain unaffected by the remission or commutation of the earlier sentence. This Court said: (SCC p. 311, para 9) "9. In other words, the operation of the superimposed subsequent sentence of life imprisonment shall not be wiped out merely because in respect of the corresponding earlier sentence of life imprisonment any remission or commutation has been granted by the appropriate authority. The consequence is that the petitioner would not get any practical benefit of any remission or commutation in respect of his earlier sentence because of the superimposed subsequent life sentence unless the same corresponding benefit in respect of the subsequent sentence is also granted to the petitioner. It is in this manner that the direction is given for the two sentences of life imprisonment not to run concurrently." "31. The above view runs contrary to the ratio of this Court's decision in Cherian case [ O.M. Cherian v. State of Kerala, (2015) 2 SCC 501 : (2015) 2 SCC (Cri) 123 ] and Duryodhan Rout case [ Duryodhan Rout v. State of Orissa, (2015) 2 SCC 783 : (2015) 2 SCC (Cri) 306 ] . That apart the view taken in Kamalanantha case [ Kamalanantha v. State of T.N., (2005) 5 SCC 194 : 2005 SCC (Cri) 1121 ] has not noticed the basic premise that a life sentence once awarded would imply that a prisoner shall spend the remainder of his life in prison. Once that happens there is no question of his undergoing another life sentence. To the extent the decision in Kamalanantha case [ Kamalanantha v. State of T.N., (2005) 5 SCC 194 : 2005 SCC (Cri) 1121 ] takes the view that the Court can for each offence award suitable punishment which may include multiple sentences of imprisonment for life for multiple offences punishable with death, there is and can be no quarrel with the stated proposition. The Court can and indeed ought to exercise its powers of awarding the sentence sanctioned by law which may include a life sentence. But if the decision in Kamalanantha [ Kamalanantha v. State of T.N., (2005) 5 SCC 194 : 2005 SCC (Cri) 1121 ] purports to hold that sentence of imprisonment for life can also be directed to run consecutively, the same does not appear to be sound for the reasons we have already indicated earlier. But if the decision in Kamalanantha [ Kamalanantha v. State of T.N., (2005) 5 SCC 194 : 2005 SCC (Cri) 1121 ] purports to hold that sentence of imprisonment for life can also be directed to run consecutively, the same does not appear to be sound for the reasons we have already indicated earlier. We need to remember that award of multiple sentences of imprisonment for life so that such sentences are superimposed over one another is entirely different from directing such sentence to run consecutively." 69. Keeping in view the ratio laid down, when already the trial Court has exercised its discretion and passed the order of sentence, then under such circumstances, I feel that if at this juncture, after scrutinizing the evidence and having come to the conclusion that the evidence produced does not bring home the guilt of the accused, the question of passing an order of sentence to run consecutively does not arise at all. 70. Though it is contended by the learned Addl. SPP that the imprisonment for life means till reminder of convict's natural life, on perusal of Section 302 of IPC, only two sentences have been mentioned, i.e., imprisonment for life or death sentence. Except those two penalties, the Court is not having any power to inflict the punishment in between the aforesaid two punishments. This point also came up before the Hon'ble Apex Court in the case of Union of India Vs. Sriharan @ Murugan & others, (2016) 7 SCC 1 , wherein at paragraphs-103 to 105 it has been observed as under:- "103. In fact, while saying so we must also point out that such exercise of power in the imposition of death penalty or life imprisonment by the sessions judge will get the scrutiny by the Division Bench of the High court mandatorily when the penalty is death and invariably even in respect of life imprisonment gets scrutinized by the Division Bench by virtue of the appeal remedy provided in the Code of Criminal Procedure. Therefore, our conclusion as stated above can be reinforced by stating that the punishment part of such specified offences are always examined at least once after the Sessions court's verdict by the High court and that too by a Division Bench consisting of two Hon'ble Judges. 104. Therefore, our conclusion as stated above can be reinforced by stating that the punishment part of such specified offences are always examined at least once after the Sessions court's verdict by the High court and that too by a Division Bench consisting of two Hon'ble Judges. 104. That apart, in most of such cases where death penalty or life imprisonment is the punishment imposed by the trial court and confirmed by the Division Bench of the High court, the convict concerned will get an opportunity to get such verdict tested by filing further appeal by way of special leave to this court. By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of guilt of such specified grave offences and the imposition of penalty either death or life imprisonment, when comes under the scrutiny of the Division Bench of the High court, it is only the High court which derives the power under the Penal Code, which prescribes the capital and alternate punishment, to alter the said punishment with one either for the entirely of the convict's life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience befitting such offence found proved to have been committed. 105. We, therefore, reiterate that, the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High court and in the event of further appeal only by the Supreme court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High court and the Supreme court and not by any other inferior court." 71. Even this Court was having an occasion of deciding the same issue in the case of Durgappa Vs. The State of Karnataka in Criminal Appeal No.200001/2014, disposed of on 10.8.2020, wherein at paragraph-11 it has been observed as under:- "11. Even this Court was having an occasion of deciding the same issue in the case of Durgappa Vs. The State of Karnataka in Criminal Appeal No.200001/2014, disposed of on 10.8.2020, wherein at paragraph-11 it has been observed as under:- "11. Taking into consideration the material placed on record, the trial Court has come to a right conclusion that it is the accused No.1, with an intention to cause the death, has assaulted the deceased and convicted him for the offence punishable under Section 302 of IPC. At this juncture, it is the submission of the learned counsel for the appellant-accused No.1 that though the trial Court came to the conclusion that the accused No.1 has committed the offence but while imposing sentence it has exceeded its jurisdiction and has imposed the sentence of life imprisonment till his life. We have carefully and cautiously gone through the said submission and we have also perused the judgment of the Co-ordinate Bench of this Court in the case of Ranjit K (quoted supra) wherein at paragraph Nos.54 to 57 the Hon'ble Apex Court has been observed as under: "54. The question arises in this case as to whether the learned Sessions Judge has got power to impose punishment in between "life imprisonment' and 'death sentence', which is virtually called as an extended punishment or alternative punishment between life imprisonment and the death sentence. In this context, it is worth to refer a decision of the Hon'ble Apex court between Union of India and V.Sriharan @ Murugan and Others, (2016) 7 SCC 1 . At paragraphs 103 to 105, the Hon'ble Apex court has observed in the following manner: "103. In fact, while saying so we must also point out that such exercise of power in the imposition of death penalty or life imprisonment by the sessions judge will get the scrutiny by the Division Bench of the High court mandatorily when the penalty is death and invariably even in respect of life imprisonment gets scrutinized by the Division Bench by virtue of the appeal remedy provided in the Code of Criminal Procedure. Therefore, our conclusion as stated above can be reinforced by stating that the punishment part of such specified offences are always examined at least once after the Sessions court's verdict by the High court and that too by a Division Bench consisting of two Hon'ble Judges. 104. Therefore, our conclusion as stated above can be reinforced by stating that the punishment part of such specified offences are always examined at least once after the Sessions court's verdict by the High court and that too by a Division Bench consisting of two Hon'ble Judges. 104. That apart, in most of such cases where death penalty or life imprisonment is the punishment imposed by the trial court and confirmed by the Division Bench of the High court, the convict concerned will get an opportunity to get such verdict tested by filing further appeal by way of special leave to this court. By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of guilt of such specified grave offences and the imposition of penalty either death or life imprisonment, when comes under the scrutiny of the Division Bench of the High court, it is only the High court which derives the power under the Penal Code, which prescribes the capital and alternate punishment, to alter the said punishment with one either for the entirely of the convict's life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience befitting such offence found proved to have been committed. 105. We, therefore, reiterate that, the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High court and in the event of further appeal only by the Supreme court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High court and the Supreme court and not by any other inferior court." Again, the above said aspect has been further affirmed rather not disturbed in another decision of the Hon'ble Apex court between Vikas Yada v. And State of UP & Others, (2016) 9 SCC 541 . In the said case also, the Hon'ble Apex court has virtually accepted the observation made in the above said Sriharan's case. In the said case also, the Hon'ble Apex court has virtually accepted the observation made in the above said Sriharan's case. Therefore, from the above said decisions, it is clear that the Sessions court would not derive any power from the Constitution for the purpose of imposing such punishment which is an extension of life imprisonment. 55. The trial Court has mainly relied upon Swamy Shraddhananda @ Murali Vs. State of Karnataka, (2008) 13 SCC 767 : (2008) 3 Crimes 215: (2008) 5 Supreme 482 , wherein the death sentence was remitted to the life and therefore, it was observed that once the death sentence has been commuted to life imprisonment, the sentence has to be served by the person for the rest of his entire life. 56. Though in Swamy Shraddhananda's case, the Hon'ble Apex court has not in detail considered the above said aspect, but it never said that such powers can be exercised by the Sessions court also, but indirectly in the said case also, it is the constitutional power exercised under Article 142 of the Constitution of India in order to do the complete justice. Therefore, it cannot be understood that some powers are also available to the learned Sessions Judge. 57. Therefore, from the above understanding of legal aspects, it is crystal clear that the power which is vested with the President of India, His Excellency Governor of the State and also the appropriate Governments under Article 72, 161 of the Constitution of India and as well as u/s. 432, 433, 433A, 434 and 435 of the Cr.PC., cannot be in any manner restricted or curtailed to by the Sessions Judges, but they are only empowered to inflict the punishment recognized under IPC i.e., u/s.302 of IPC, i.e., the life imprisonment or the death sentence, except those two penalties, learned Sessions Judges have no power to inflict any punishment in between the above said two punishments. It is only the powers vested with the High court and the Supreme court which derive the powers from the Constitution as these courts are the constitutional courts of India. Therefore, the trial court has committed a legal error in imposing punishment with such direction to the Government as noted above." 72. It is only the powers vested with the High court and the Supreme court which derive the powers from the Constitution as these courts are the constitutional courts of India. Therefore, the trial court has committed a legal error in imposing punishment with such direction to the Government as noted above." 72. Keeping in view the ratio laid down by the Hon'ble Apex Court and when the alleged incident has taken place in a single transaction, the accused cannot be convicted consecutively. 73. It is well settled principle of law in criminal jurisprudence that no finding can be rendered either on mere surmises or conjectures and every finding should be based on satisfactory and acceptable evidence in Court. If no such evidence is available, then the Court cannot convict the accused on the basis of surmises and conjectures. This proposition of law has been laid down by the Hon'ble Apex Court in the case of State of U.P Vs. Pheru Singh, (1989) AIR SC 1205 , wherein at paragraph-26 it has been observed as under:- "26. It is the well-settled principle of law in criminal jurisprudence that no finding can be rendered either on mere surmise or conjecture and every finding should be based on satisfactory and acceptable evidence. Now we shall approach the evidence, available on record, bearing in mind the above principle. Firstly, coming to the failure of the prosecution to produce the record, kept at the check-post of the bridge at Agra, Mr. Prithvi Raj would urge that the persons who were authorised to make the entry of the vehicle passing through the bridge might have omitted to register the number of the jeep and allowed the jeep to pass through since it was a departmental jeep in which Police officials were travelling and hence no adverse influence could be drawn against the prosecution on that ground. If this submission is to be accepted at this stage, it can be only on a presumption; because in the normal course, the register, kept at the check-post should contain the registration numbers of all the vehicles passing through. Therefore, this Court while exercising its jurisdiction under Article 136 of the Constitution of India will not be justified in taking a contrary view to that of the High Court on mere presumption. Therefore, this Court while exercising its jurisdiction under Article 136 of the Constitution of India will not be justified in taking a contrary view to that of the High Court on mere presumption. Secondly, the defence counsel has vehemently urged that the evidence of PW-25, the owner of the petrol pump RD Gupta showing that at 7.00 p.m. on 1.3.67 R-1 purchased 35 litres of petrol under the petrol coupon (Exh. Ka 39) which contains the signature of the driver (R-1) marked as Exh. Ka 50 and the petrol vouchers (Exh. Ka 57 to 59) showing sale of petrol to the said vehicle (jeep) which the High Court had conveniently omitted to consider would establish that large quantity of petrol for the particular vehicle was purchased for going to Agra. This circumstantial piece of evidence, according to the learned counsel, would establish the prosecution case of the jeep having been taken to Agra and also preparation of forged documents. This circumstance, in our considered opinion, will not lead to any conclusion in favour of the prosecution. The petrol pump is at Mainpuri. This witness (PW 25) was examined only on 26.12.70 by the CID Police i.e. to say 3 years and 9 months after purchase of the petrol under Exh. Ka 49. PW-25 in the cross-examination has stated that since he was in the cabin of the petrol pump, the number of the vehicle was not visible, and he could only guess the time of taking the petrol by any customer as time of sale of petrol is not noted anywhere. On a careful examination of PW-25, we are of the view that no reliance can be placed on PW-25 except for the limited purpose that petrol was purchased on 1.3.67 (Exh. Ka 49) and not beyond that." 74. This Court cannot convict the accused on mere surmises and conjectures and every finding should be based on satisfactory and acceptable evidence. In that light, the contention taken up by the learned Addl. SPP in this behalf is not acceptable. 75. Ka 49) and not beyond that." 74. This Court cannot convict the accused on mere surmises and conjectures and every finding should be based on satisfactory and acceptable evidence. In that light, the contention taken up by the learned Addl. SPP in this behalf is not acceptable. 75. Taking into consideration of above said factual matrix of the case on hand, it can safely be held that prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and the accused is liable to be acquitted for all the charges levelled against him and in that light the impugned judgment is liable to be set aside. In the light of the aforesaid discussion, I pass the following:- ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by the II Additional Sessions Judge, Vijayapura in S.C.No.138/2008 dated 12.12.2011 is set aside and the appellant accused Bavuddin S/o Kajesab Patel is acquitted of all the charges levelled against him and he is set at liberty forthwith, if he is not required in any other case. The concerned Jail Authorities are hereby directed to release the appellant accused Bavuddin S/o Kajesab Patel forthwith, if he is not required in any other case. The Registry is hereby directed to intimate the Principal District and Sessions Judge, Vijayapura as well as the concerned Jail Authorities through e-mail to release the appellant accused Bavuddin S/o Kajesab Patel, if he is not required in any other case. The Registry is also directed to send back the trial Court records.