JUDGMENT : B.A. PATIL, J. 1. 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 PWs. 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 eye-witnesses 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 PWs. 5 and 6. But, PW-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, PW-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, PW-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. PW-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, PW-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 (PW-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 PW-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 PWs. 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 eye-witnesses 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 PW-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 PW-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 PW-16, the doctor who has conducted the autopsy over the body of the deceased. In the evidence of PW-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 and 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 2 x 2 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 cross-examination 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. Prosecution has relied much upon 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. Prosecution has relied much upon the evidence of PWs. 5 and 6 to establish first circumstance that the deceased has been lastly seen along with the appellant. PW-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 2½ 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. 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 PW-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 cross-examination has suggested. PW-5 has admitted the case of the prosecution. 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 cross-examination 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 cross-examination 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. Keeping in view the said proposition of law on perusal of the evidence of PW-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 PW-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. 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 PW-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. 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. 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. 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’çlock. 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. 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 PW-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. 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. 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 PW-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. 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. 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. 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. 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. 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 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. 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. 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. 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. 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.” (i) Bodhraj vs. State of J&K, (2002) 8 SCC 45 : 2003 SCC (Cri) 201 (ii) Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438 : (2006) 1 SCC (Cri) 579 (iii) Tipparam Prabhakar vs. State of A.P. (2009) 13 SCC 534 : (2010) 1 SCC (Cri) 1105 (iv) Rishipal vs. State of Uttarakhand, (2013) 12 SCC 551 : (2014) 4 SCC (Cri) 414 (v) Krishnan vs. State of Tamil Nadu, (2014) 12 SCC 279 : (2014) 5 SCC (Cri) 66 (vi) Kiriti Pal vs. State of West Bengal, (2015) 11 SCC 178 : (2015) 4 SCC (Cri) 343 (vii) State of Karnataka vs. Chand Basha, (2016) 1 SCC 501 : (2016) 1 SCC (Cri) 368 (viii) Rambraksh vs. State of Chhattisgarh, (2016) 12 SCC 251 : (2017) 3 SCC (Cri) 716 (ix) Anjan Kumar Sarma vs. 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. 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 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. 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. Even during the course of cross-examination, 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. 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. 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.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. 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. 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. 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 appellant-accused 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. 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. 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 and Others vs. 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, 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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 and 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 2 x 2 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. 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. 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 PWs. 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 vs. State of West Bengal, (2001) 5 SCC 235 : 2001 SCC (Cri) 829 : AIR 2001 SC 1760 , recalled its observations in M. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691 : 2001 SCC (Cri) 258 : 2001 Cri. L.J. 515, as herein-below: [Lokeman Shah vs. State of West Bengal, (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. Prior thereto, in Vijayee Singh vs. 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. 217-218, 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. 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 PWs. 1, 5, 6, 9 and 10. 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 PWs. 1, 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. 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. 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. 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 vs. 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 and 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 vs. State of Bihar, 1995 Supp (1) 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. 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. vs. Kishanpal, (2008) 16 SCC 73 , this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 87-88, 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 eye-witnesses 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 eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eye-witnesses 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 vs. State of Tamil Nadu, (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. 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, AIR 2011 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. 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. 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 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. 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. 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. 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 and Others vs. State, Rep. by Inspector of Police, AIR 2016 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 vs. Krishan Lal, (2001) 4 SCC 458 : 2001 SCC (Cri) 735, Shri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296 : 2001 SCC (Cri) 1095 and Swamy Shraddananda vs. 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 vs. 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 vs. 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 vs. State of Maharashtra, (1974) 1 SCC 196 : 1976 SCC (Cri) 102, State of M.P. vs. Ratan Singh, (1976) 3 SCC 470 : 1976 SCC (Cri) 428, Maru Ram vs. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112 and Ranjit Singh vs. 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 Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 SCR 440 : AIR 1961 SC 600 : (1961) 1 Cri. L.J. 736 and Maru Ram vs. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112 cases, this Court held in Ranjit Singh vs. 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. 310-311, 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 sub-section (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 vs. 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.......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. 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 O.M. Cherian vs. State of Kerala, (2015) 2 SCC 501 : (2015) 2 SCC (Cri) 123 and Duryodhan Rout vs. State of Orissa, (2015) 2 SCC 783 : (2015) 2 SCC (Cri) 306. That apart the view taken in Kamalanantha vs. State of Tamil Nadu, (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 vs. State of Tamil Nadu, (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 vs. State of Tamil Nadu, (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. 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 and 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. 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. 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. 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. 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 reported in Union of India and vs. 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 reported in Vikas Yadav vs. State of U.P. and 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.P.C. 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, AIR 1989 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 26.12.1970 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 1.3.1967 (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. 76. 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. Dated: 07-10-2020 HANCHATE SANJEEV KUMAR, J. 1. The above appeal is filed questioning the legality, propriety and correctness of the judgment of conviction dated 12.12.2011 and order on sentence dated 17.12.2011 passed in Sessions Case No. 138/2008 by the court of the II Additional Sessions Judge, Bijapur (hereinafter referred to as the ‘Sessions Court’ for brevity). 2. I had the privilege of going through the judgment eruditely written by my learned Brother Hon’ble Sri. Justice B.A. Patil; I am immensely enriched in knowledge; however, I respectfully disagree with the said judgment and hand my own judgment on the basis of the material evidence on record broadly agreeing with the judgment of conviction and order of sentence entered by the learned II Additional Sessions Judge, Bijapur. 3. Justice B.A. Patil; I am immensely enriched in knowledge; however, I respectfully disagree with the said judgment and hand my own judgment on the basis of the material evidence on record broadly agreeing with the judgment of conviction and order of sentence entered by the learned II Additional Sessions Judge, Bijapur. 3. The brief facts of the case are as follows: The PW-2 is the father of the deceased girl of age 6 years old who has been ravished brutally and murdered with burnt ashes and this unfortunate complainant is having wife (PW-10) and three children and one among is the victim deceased of six years old. It is stated that the complainant is doing peddler business of selling pen, battery etc. in front of open space situated near Bhavani Bar, Talikoti. The victim deceased was studying 1st standard and there was holiday to the school as on the date of incident, hence she was in the house. It is stated that on 21.04.2008 at morning 9.00 a.m. the complainant after attending the marriage at Muddebihal went to Vijayapur for purchasing the commodity for the purpose of his business and at that time his three children were there in the house and after purchasing commodities at Vijayapur returned to the house at Talikoti at night 10.30 p.m. and he came to know from his wife (PW-10) that his daughter six years old girl did not return to the house from evening 5.00 p.m. and thereafter the complainant and his relatives have searched and enquired in various places at Rajwade, Jande Ooni, Kembavi Ooni, Halepet and Katri Bazar but the whereabouts of the victim deceased is not traced out. Further the complainant had enquired in his brother’s house and also mother’s house whether the deceased had been to their house but the whereabouts of the deceased did not trace out and this search is continued till night 12.30 a.m. on that day but with empty hands returned to the house then on the next day on 22.04.2008 at early morning when he was in his house he heard news that in a place which is meant for open defecation ground at Talikoti town belonging to the Town Municipal Council, dead-body of a child which is half burnt is found and immediately the complainant, his wife and other relatives went there and saw the dead-body of that girl child and identified the said dead-body is his child and there was burnt injuries found on the face, backside and there was no clothes found on the dead-body and head was also half burnt and he had seen the dead-body at morning 7.00 a.m. on 22.04.2008. Therefore, the complainant who is father of the victim deceased had lodged complaint before the police stating that somebody has kidnapped his daughter on 21.04.2008 after 5.00 p.m. and burnt the deceased thereby committed the murder and then thrown the dead-body in the said open defecation ground of Town Municipal and also thus committed the disappearance of evidence by burning the dead-body of the deceased and in this way complaint is lodged. 4. On the complaint lodged by the complainant on 22.04.2008 at morning 8.00 a.m. before the Talikoti Police Station a crime is registered in Crime No. 49/2008 for the offences under Sections 376, 302 and 201 of Indian Penal Code (for short ‘IPC’). The appellant/ accused was arrested and produced before the jurisdictional Magistrate and he was remanded to the judicial custody. 5. The appellant/ accused was arrested and produced before the jurisdictional Magistrate and he was remanded to the judicial custody. 5. After completion of the investigation, the Investigating Officer had filed charge-sheet before the jurisdictional Magistrate and the learned Magistrate had taken the cognizance of the offences as per Section 190 of Code of Criminal Procedure and copy of the charge-sheet is furnished to the appellant/accused as per Section 207 of Cr.P.C. and since the offences alleged are exclusively triable by the Sessions Court, therefore, the learned Magistrate had committed the case to the Sessions Court as per Section 209 of Cr.P.C. then the case came to be registered as Sessions Case No. 138/2008 and made over to the court of II Additional Sessions Judge at Vijayapur. After securing the appellant/accused before the court charges were framed against the appellant/accused for the offences punishable under Sections 376, 302 and 201 of IPC and upon reading over and explained in the language known to him the appellant/accused pleaded not guilty and claims to be tried and accordingly by recording the plea the learned Sessions Judge has proceeded with the trial. 6. The prosecution has got examined totally 23 witnesses as PWs. 1 to 23 and got marked documentary evidences as Ex.P.1 to Ex.P.23 and got marked material objects M.Os.1 to 9. After completion of the prosecution side evidences, the incriminating evidences and circumstances were put to the appellant/accused by examining the appellant/accused under Section 313 of Cr.P.C. and he has denied all the incriminating evidences and circumstances and he did not choose to lead defence evidence and it is simply denial of the case by the appellant/accused. 7. After appreciating the evidences on record, the learned Sessions Judge has held the appellant/accused is guilty of the offences punishable under Sections 302, 376 and 201 of IPC. For the offence under Section 302 of IPC the appellant/accused is ordered to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- with default clause, if he fails to pay fine amount then he shall undergo simple imprisonment for a period of one more year. Further convicted the appellant/accused for the offence under Section 376 of IPC and sentenced to undergo simple imprisonment for life is awarded with fine of Rs. 10,000/- and with default clause, if fails payment of fine, shall further undergo simple imprisonment for a period of one year. Further convicted the appellant/accused for the offence under Section 376 of IPC and sentenced to undergo simple imprisonment for life is awarded with fine of Rs. 10,000/- and with default clause, if fails payment of fine, shall further undergo simple imprisonment for a period of one year. Further upon convicted the appellant/accused for the offense punishable under Section 201 of IPC, he is sentenced to undergo imprisonment for a period of seven (7) years and to pay a fine of Rs. 5,000/- with default clause shall further undergo simple imprisonment for a period of six months. 8. Being aggrieved by the judgment of conviction and order on sentence as discussed above, the appellant/accused has challenged the judgment of conviction and order on sentence by preferring the appeal by raising various grounds and inter-alia contending that the Sessions Court has erred in relying the extra judicial confession made by the appellant/accused before the police and others and it is hit by Section 25 of the Indian Evidence Act. 9. Further urged the ground that Investigating Officer has not cited any witnesses who were playing with the deceased. Further taken a ground that there are no material evidence on record to show that there is a chain of circumstances against the appellant/accused. Further raised a ground that the material witnesses have not supported the case of the prosecution and the Sessions Court only on the basis of the evidences of PWs. 3, 5 and 6 has convicted the appellant/accused, even though their evidence is not sufficient to hold guilty of the appellant/accused. Further raised a ground that the persons have already seen the burnt dead-body near Panchashahi Darga and after four days the appellant/accused had shown the place where the dead-body was lying and other circumstances cannot be taken into consideration and therefore submitted the entire prosecution is not believable and also there are no circumstances linking to each other pointing guilt towards the appellant/ accused and in this regard the Sessions Court has erred in appreciating the evidence and therefore prays to set aside the judgment of conviction and order on sentence and allow the appeal by acquitting the appellant/accused. 10. Initially Sri. Ishwaraj Choudapur Advocate was representing the appellant/accused and when the appeal was taken up for consideration then he retired from the case. Therefore, the court had appointed a Senior Advocate by namely Sri. 10. Initially Sri. Ishwaraj Choudapur Advocate was representing the appellant/accused and when the appeal was taken up for consideration then he retired from the case. Therefore, the court had appointed a Senior Advocate by namely Sri. Sudheer Kulkarni from the Panel of High Court Legal Services Committee, Kalaburagi who is having vast experience in dealing with the criminal cases especially before the High Court. Therefore, the appellant/ accused is well represented by a Senior Advocate in the case. 11. Heard the submissions made by the counsel for the appellant as well as the learned State Public Prosecutor and has gone through the evidences and other materials on record carefully and meticulously. Submission of counsel for the appellant/accused: 12. Learned counsel for the appellant/accused vehemently submitted that the present case on hand is completely depending upon the circumstantial evidence and there are no eye-witnesses and thus all the circumstances are not proved by the prosecution beyond all reasonable doubt and failed to pointing guilt towards the appellant/accused. But the Sessions Court had falsely convicted the appellant/accused even there are no cogent evidences on record. Further submitted that even though PW-3 is the witness has last seen the appellant/accused and seeing the gunny bag (M.O.1) but when his evidence is tested with the cross-examination but whatever he has stated during the examination-in-chief has been shaken rendering unbelievable. Therefore, submitted that there are various contradictions, omissions and embellishments are revealed in the evidence of PW-3 and the evidence of PW-3 is not believable but without appreciating the evidence of PW-3 in true manner the Sessions Court had convicted the appellant/accused wrongly. 13. Further submitted that another witness PW-5 is stated to be last seen witness as per the prosecution case that he had witnessed the appellant/accused had lured the victim by offering biscuit at evening 6.00 p.m. but in the course of cross-examination he had stated that at 7.00 p.m. he had seen that the victim was playing along with the other children and at 7.00 p.m. and he had gone to market and returned at night 1.00 a.m. on 22.04.2008. Therefore, considering these important aspects regarding seeing the victim was playing along with other children and offering of the biscuit by the appellant/accused are not matching to each other with reference to the time stated by PW-5 and therefore evidence of PW-5 is found to be unbelievable and untrustworthy but the Sessions Court has wrongly relied upon this witness. 14. Further submitted that PW-6 is the owner of the house in which the appellant/accused was residing on rent basis and submitted that he had turned hostile and during the course of cross-examination by the Special Public Prosecutor and also by the defence counsel appearing for the appellant/accused this evidence is found to be unbelievable. Therefore, the conviction recorded by the Sessions Court believing this evidence is wrong. 15. Further submitted that the learned standing counsel for the appellant/accused argued that theory of discovery of fact of the place of incident in which offence of rape was committed and the dead-body stated to have been burnt by the appellant/accused is not proved for the reason that the appellant/accused did not lead to the place of incident but already in the said place there was presence of police and this fact of discovery of place of incident at the instance of the appellant/accused is not cogently proved and when this being the fact a very important link is missing to prove the guilt against the appellant/accused and in this regard the Sessions Court has not appreciated the evidence on record, therefore, prayed for acquittal of the appellant/accused from the charges levelled against him. 16. Further submitted that after missing of the victim the appellant/accused had also searched and enquired by making roving enquiry in the locality and also advised PW-10 who is mother of the victim and wife of PW-2 to make announcement from mike of the mosque regarding missing of the child. Therefore, appellant/accused himself has bonafidely acted and aided in searching the victim but appellant/accused is arraigned as appellant/accused falsely. 17. Therefore, appellant/accused himself has bonafidely acted and aided in searching the victim but appellant/accused is arraigned as appellant/accused falsely. 17. Further submitted that even though as per the prosecution evidences it is revealed that the victim child was brutally murdered after sexual assault but only on surmises and conjectures and based on the assumption and presumption the appellant/accused is involved into the case since the real offender has not been traced out by the police and therefore the police have failed to nab the real culprit but falsely roped the appellant/ accused into the alleged crime, therefore, prayed for acquittal of the appellant/accused. 18. Further submitted that upon considering the entire investigation in the present case the Investigating Officer had not conducted investigation properly and investigation is shabby one and does not inspires confidence upon the Investigating Officer in collecting the evidences as it is revealed from the evidences and therefore when this being the shabby investigation in the present case when the case is based on circumstantial evidence therefore the Investigating Officer has failed to collect cogent evidences against the appellant/accused and failed to put-forth before the court to prove the guilt against the appellant/accused. Therefore, prayed for acquittal of the appellant/accused. 19. Further submitted that the role of Investigating Officer and also the investigation shall be perfect in the case where the case is based on circumstantial evidences and if the investigation is not fair or correct in the cases where based on circumstantial evidences then the important links are going to be missed and that is what is happened in the present case. Therefore, prayed for acquittal of the appellant/accused. 20. Further submitted that only on the basis of the last seen theory witnesses the Sessions court has convicted the appellant/accused but conviction cannot be recorded on the basis of the last seen theory unless there are any other corroboration from other evidences. Furthermore the evidence of PWs. 3 and 5 are found to be shaky, therefore only on the basis of the last seen theory evidences of these two witnesses recording of conviction is completely abuse of process of court. Therefore, prayed for acquittal of the appellant/ accused. 21. Further submitted that when the evidences of last seen theory of seeing the appellant/accused by witnesses PWs. 3 and 5 are found to be shaky, therefore only on the basis of the last seen theory evidences of these two witnesses recording of conviction is completely abuse of process of court. Therefore, prayed for acquittal of the appellant/ accused. 21. Further submitted that when the evidences of last seen theory of seeing the appellant/accused by witnesses PWs. 3 and 5 and also the discovery of fact as per Section 27 of the Indian Evidence Act are not cogently proved then ought not to have convicted the appellant/accused but the conviction made by the Sessions Court is amounting to moral conviction but absolutely there are no legal evidences available in convicting the appellant/accused. Therefore, prayed for acquittal of the appellant/accused. 22. Further submitted that when the evidence of PWs. 3, 5 and 6 are kept aside as they are found to be not believable and untrustworthy then virtually the prosecution does not have any other legal evidences to hold the guilt of the appellant/accused in the present case. Since the other witnesses are found to be formal in nature at the most the other offences prove the fact that the death of the deceased is culpable homicide amounting to murder. Just because if the death of the child is proved to be culpable homicide amounting to murder that cannot be made ground to rope the appellant/accused in to the crime by holding guilty of him of the alleged offences. Therefore, for all the above stated argument and also the grounds raised in the appeal memorandum submitted that the prosecution has failed to prove the guilt of the appellant/accused beyond all reasonable doubt and the said benefit of doubt certainly ought to have been exercised in favour of the appellant/accused but without doing so the Sessions Court wrongly convicted the appellant/accused. Therefore, prayed for allowing the appeal and to acquit the appellant/accused. Submission of learned Additional State Public Prosecutor: 23. Per contra, the learned Additional State Public Prosecutor argued that the prosecution has put-forth cogent, believable and reliable evidences before the Sessions Court and the Sessions Court has rightly appreciated the evidences on record and convicted and accordingly imposed sentence which do not call for interference by this court. Therefore, prayed to dismiss the appeal. 24. Per contra, the learned Additional State Public Prosecutor argued that the prosecution has put-forth cogent, believable and reliable evidences before the Sessions Court and the Sessions Court has rightly appreciated the evidences on record and convicted and accordingly imposed sentence which do not call for interference by this court. Therefore, prayed to dismiss the appeal. 24. Further submitted that even though the entire case is based on circumstantial evidences the prosecution has produced important witnesses before the Court who are PWs. 3, 5 and 6 and from these evidences the guilt against the appellant/accused is proved and also one full chain of circle of circumstances is proved unerringly pointing guilt towards the appellant/accused and therefore this is well appreciated by the Sessions Court and accordingly recorded the conviction by the Sessions Court is justified. 25. Further submitted that even there may be some minor contradictions and omissions are revealed from the evidences of PWs. 3, 5 and 6 but upon considering and visualizing the entire case how the crime has been committed then those omissions are found as trivial and minor in nature those do not go to the very core of the prosecution case. Therefore, the Sessions Court appreciated the evidences on record in well appreciated manner and accordingly convicted the appellant/accused. Therefore, prayed to dismiss the appeal confirming the conviction of judgment and order on sentence against the appellant/ accused. 26. Further submitted that even though there may be variance in stating time by PWs. 3 and 5 but upon considering their background and their educational background, the place of residence which is small town and they are rustic and whatever may be the contradictions and omissions which are trivial in nature do not affect substantially as against the guilt of the appellant/accused. 27. Further submitted that from the evidences of PWs. 5 and 6 who have last seen the appellant/accused with the deceased child and have seen offering biscuit to the child and taken inside his house which are all cogently proved upon by these witnesses. Therefore, submitted that the prosecution has placed strong evidences before the Sessions Court in proving the guilt against the appellant/accused. 28. 5 and 6 who have last seen the appellant/accused with the deceased child and have seen offering biscuit to the child and taken inside his house which are all cogently proved upon by these witnesses. Therefore, submitted that the prosecution has placed strong evidences before the Sessions Court in proving the guilt against the appellant/accused. 28. Further submitted that the offences alleged is inside the house of the appellant/accused and which is rented by PW-6 given to the appellant/accused for residence and therefore when the place of incident is proved inside the house of the appellant/accused and it is for the appellant/accused to explain how the child is burnt inside the house and incriminating material objects are discovered from the house of the appellant/accused it is for him to explain those things as per Section 114 of the Indian Evidence Act but the appellant/ accused had simply denied the prosecution case while he was examining under Section 313 of Cr.P.C. 29. Further submitted that soon after apprehending the appellant/accused he had stated to the other witnesses that he had raped the victim and burnt the child and committed the murder of the child. Therefore, based on that the Investigating Officer had conducted panchanama in the house of the appellant/accused. Therefore, in this regard the police came to know this fact inside the house of the appellant/accused the incident was occurred and this place of incident is known to PWs. 3, 5 and 6 and other witnesses. Therefore, the discovery of fact in this regard may not be strictly followed as per the procedure but since the place of incident is known by other witnesses therefore accordingly the Investigating Officer had conducted panchanama on the place of incident as per Ex.P.6. Therefore, this cannot be found fault with the Investigating Officer during the course of investigation. Therefore, submitted the chain of circumstances that the appellant/accused is residing nearby the house of PWs. 2 and 10 who are father and mother of the deceased and had lured the deceased-child while playing and by offering biscuit and this is witnessed by PWs. Therefore, this cannot be found fault with the Investigating Officer during the course of investigation. Therefore, submitted the chain of circumstances that the appellant/accused is residing nearby the house of PWs. 2 and 10 who are father and mother of the deceased and had lured the deceased-child while playing and by offering biscuit and this is witnessed by PWs. 5 and 6 respectively and the PW-6 is none other than the owner of the house in which the appellant/accused is residing and then the PW-3 had seen during that night at 11.30 p.m. that the appellant/accused was taking gunny bag on his shoulder coming outside from the house and going over to the open defecation ground which is 50-60 feet away from the Panchshahi Darga. Therefore, submitted upon analyzing the evidences of these three witnesses in this regard, it is conclusively proved the guilt of the appellant/accused. Therefore, the learned State Public Prosecutor vehemently submitted that the appellant/ accused had committed brutal offence of rape on the minor victim and then killed her by burning her into the ashes. Therefore, submitted that the prosecution has proved the guilt of the appellant/accused beyond reasonable doubt. 30. Further learned State Public Prosecutor submitted that from other circumstantial evidences the guilt against the appellant/accused is proved and therefore submitted the chain of circumstances of the manner in which the offence is occurred are linking to each other and making one full circle and the end of the point of link is touching to the starting point of the link and unerringly pointing guilt towards the appellant/accused. Therefore, submitted explaining all the chain of circumstances before the court and submitted that Sessions Court has rightly convicted the appellant/accused and imposed sentence accordingly which do not call for any interference by this court. Therefore, prayed to dismiss the appeal by confirming the judgment of conviction and order on sentence recorded against the appellant/accused. Analyses of evidences: 31. The present case is based on entirely circumstantial evidences. There are no eye-witnesses to the incident except last seeing the appellant/accused by PWs. 3, 5 and 6 before the incident and discovery of fact as per the prosecution case. Analyses of evidences: 31. The present case is based on entirely circumstantial evidences. There are no eye-witnesses to the incident except last seeing the appellant/accused by PWs. 3, 5 and 6 before the incident and discovery of fact as per the prosecution case. Therefore, when the entire case rests upon the circumstantial evidences then the prosecution has to prove all the circumstances in the case shall link to each other and making one full circle without there being missing link having last link connect with the first link and thereby unerringly pointing guilt towards the appellant/accused without there being any other hypothesis that it is none other than the appellant/accused the crime has been committed. Therefore, there should not be slightest doubt otherwise than the appellant/accused has committed the alleged offence. Therefore, it is the burden on the prosecution to prove all the circumstances and then must point out guilt towards the appellant/accused. In this regard the principle of law how to appreciate the evidences on record, where the case is based on circumstantial evidence, I place reliance on the decision of the Hon’ble Apex Court in the case of Gagan Kanojia and Another vs. State of Punjab, (2006) 13 SCC 516, has laid down the principle of law that when a prosecution case is solely based on a circumstantial evidence how to appreciate the evidences. In the above said case at Para 9 and 10, were pleased to observe as follows: “9. The prosecution case is based on circumstantial evidence. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well-settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between “may be true” and “must be true.” Prosecution case is required to be covered by leading cogent, believable and credible evidence. It is, however, necessary for the courts to remember that there is a long gap between “may be true” and “must be true.” Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to the guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyse and assess the same objectively. 10. We would proceed on the well-known principles in regard to appreciation of the circumstantial evidence which were noticed by the High Court in the following terms: “(1) There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. (2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. (3) There should be no missing links but it is not that everyone of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. (4) On the availability of two inferences, the one in favour of the accused must be accepted. (5) It cannot be said that prosecution must meet any and every hypothesis put forwarded by the accused however farfetched and fanciful it might be. (4) On the availability of two inferences, the one in favour of the accused must be accepted. (5) It cannot be said that prosecution must meet any and every hypothesis put forwarded by the accused however farfetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.” 32. Further the Hon’ble Supreme Court in the case of Reddy Sampath Kumar vs. State of A.P. (2005) 7 SCC 603 , wherein has laid down the ratio regarding when the case is based on solely circumstantial evidence and at Para 7, were pleased to observe as follows: “7. It is a well-settled principle of law that in order to sustain conviction, the circumstantial evidence must be complete and incapable of explanation of any other hypothesis except that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 33. Now it has been the aspect on the principle of law that where the prosecution case is entirely based on circumstantial evidence and there are no eye-witnesses and when it is made incumbent upon the Court to appreciate the circumstantial evidence, the factor ‘motive’ plays pivotal role. Where direct evidences are available, the aspect ‘motive’ may not be so important. But when the case is entirely based on circumstantial evidence, the Court has to ascertain what was the motive for the accused to commit the offence alleged. Therefore, the appreciation of evidence must be begun with the factor on motive to ask question itself why such offences were taken place. Therefore, motive plays an important role in the cases rest on circumstantial evidences. 34. Where proof of the case depends on circumstantial evidence, motive assumes great significance and important for the reason that the absence of motive would put the Court on its guard and cause it to scrutinise each piece of evidence very closely in order to ensure for suspicion, emotion or conjecture do not take the place of proof. If the evidence on record suggests sufficient/necessary motive, to commit a crime it may be conceived that the accused has committed the offence. If the evidence on record suggests sufficient/necessary motive, to commit a crime it may be conceived that the accused has committed the offence. In this regard, I place reliance on the judgment of Hon’ble Supreme Court in the case of Munish vs. State, (2013) 1 SCC (Cri.) 52 and also I place reliance on the judgment of the Hon’ble Supreme Court in the case of Raja vs. State of Haryana, (2015) 11 SCC 43 . Therefore, as per Section 3 of the Indian Evidence Act and the principle of law laid down by the Hon’ble Supreme Court regarding appreciation of evidences where the prosecution case is entirely based on circumstantial evidences, then essential provisions to be required to prove the case, where the case is based on a circumstantial evidence, are as follows: Essential proof required where the case rests on circumstantial evidence - The following are the essential requirements where the proof of the charge rests on circumstantial evidence: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Therefore, upon considering the present case the motive and circumstances to be gathered as depicted by the prosecution and to analyse whether the prosecution proves all the circumstances making one full circle unerringly pointing guilt towards the accused with motive aspect. Chain of circumstances from prosecution case: 35. The following are the chain of circumstances as per the prosecution case which are extracted as below as revealed from the prosecution materials:- (i) The deceased girl of six years old after coming from the school on 21.04.2008 at about 5.00 p.m. went towards Panchshahi Darga to play along with the other children and she did not return to the house. (ii) The mother (PW-10) of the deceased started searching the deceased at about 7.00 p.m. and went to the house of grand-mother (PW-9) of the deceased and also the other neighbourers have joined their hands to the PWs. 10 and 9 to search the deceased girl till 9.00 p.m. and did not trace out the whereabouts the deceased. (iii) PW-5 had seen the appellant/accused taking the deceased-girl inside his house on 21.04.2008 at about 7.00 p.m. (iv) PW-6 is the owner of the house of the appellant/accused in which the appellant/accused is residing on rent basis had seen the appellant/accused taking the child inside the house evening at about 7.00 p.m. by luring, enticing and offering biscuits. (v) PW-3 had seen the appellant/accused carrying gunny bag load on his shoulder and passing infront of Panchshahi Darga at about 12.30 a.m. on 22.04.2008 during that midnight. (vi) PW-3 and other witnesses have heard news that on 22.04.2008 at early morning that there was half burnt dead-body covered with gunny bag (MO.1) was thrown on the open defecation ground which is 50-60 feet away from the Panchshahi Darg. (vii) PW-3 identified the said gunny bag which was same he had seen on the last night at 12.30 a.m. carried by the appellant/accused into the open defecation ground. (viii) The discovery of fact of the place of burning the deceased and killing the deceased which is inside the house of the appellant/accused. (ix) Non explanation by the appellant/accused regarding finding burnt ashes which are in unnatural way found in the house of the appellant/accused. (x) Medical evidences showing the deceased was raped and then she was killed, as there is blood oozing from the private part of the deceased. (xi) Seizure of one half banyan, two boots, one lungi inside the house of the appellant/accused which are the dresses worn by the appellant/accused during the time of commission of offence and witnessed by PW-3 which are the same clothes and boots. (xii) Seizure of pair of kids chappal, nighty of the deceased inside the house of the appellant/accused which were burnt and identified as that of the deceased. (xiii) Search of kerosene Can, match box inside the house of the appellant/accused. (xiv) Half banyan, two boots and one lungi of the appellant/accused searched and seized as stated above and kept inside another gunny bag (MO.9). Broad principles for appreciation of evidences 36. (xiii) Search of kerosene Can, match box inside the house of the appellant/accused. (xiv) Half banyan, two boots and one lungi of the appellant/accused searched and seized as stated above and kept inside another gunny bag (MO.9). Broad principles for appreciation of evidences 36. Therefore, as per the principle of law laid down by the Hon’ble Apex Court as stated supra, it is the bounded duty of the prosecution to prove all the circumstances as above discussed, linking to each other and making one full circle and unerringly pointing guilt towards the appellant/accused without there being any slightest doubt that the others could have committed the offence other than the appellant/accused. In this regard, the evidences are to be appreciated and visualized the entire prosecution case and while appreciating the evidences on record the mathematical formulae cannot be applied. The evidence of appreciation in criminal cases much particularly the evidences in the case which is based on circumstantial evidences evaluating the evidences on mathematical calculation is not proper. Therefore, the appreciation of evidence must be considered on the background of the witnesses, place whether it is Town, City or Village, educational background or literacy level, their professional background and all other natural conduct of the witnesses are to be taken into consideration while appreciating the evidences on record in criminal cases. 37. Further in every trial there may be contradictions and omissions and these contradictions and omissions are bound to be occurred naturally and appreciation is to be made in such a way that whether those go to the very core of the prosecution or found to be minor and trivial in nature. This is also one of the foremost and important aspects while appreciating the evidences on record. The appreciation of evidences on record in criminal cases is always to be exercised considering the evidences stated in the examination-in-chief and the evidences revealed in the course of cross-examination and both together to be analysed and evaluate and assess what might have been happened and whether the persons who are named as accused have/has committed the offence or there is any falsity is proved by these witnesses are to be considered in this way. The appreciation of evidences shall not be done in mathematical calculation to say that if such and such evidence/deposition are made in examination-in-chief and then in the course of cross-examination such and such statement/stray sentence has been revealed and as a mathematical calculation and arithmetical calculation should not be adopted while appreciating the evidences on record. Even during the course of appreciation of evidences, some stray sentences/admissions are revealed which can be properly appreciated and analysed whether stray admission/sentence goes to the very core of the prosecution case or just it is a trivial or minor in nature and this can be appreciated in the background of the educational background, their professional background, their living condition etc. Further the appreciation of evidences can be done not with testing memory of the witnesses and not with testing as if the memory of the witnesses is like cassette or gramophone or compact disk expecting the witnesses who reveals all minute aspects and in verbatim as given statement before the police. Therefore, these are all some broader guidelines regarding how to appreciate the evidences in criminal cases and much particularly how much sensitivity is to be adopted in appreciating and analyzing the evidences on record when the case is based only circumstantial evidences. Therefore, with these broader guidelines while appreciating the evidences on record as observed by the Hon’ble Apex Court and by this Court in catena of decisions the evidences in the present case are appreciated. 38. Therefore, with these broader guidelines while appreciating the evidences on record as observed by the Hon’ble Apex Court and by this Court in catena of decisions the evidences in the present case are appreciated. 38. Let me have glance over the role of each witnesses in the present case as adduced by the prosecution case:- PW-1 is the panch for inquest panchanama as per Ex.P.1; PW-2 is the father of the deceased-girl; PW-3 is the witness who has lastly seen the appellant/accused while the appellant/accused carrying gunny bag (MO.1) at night 11.00 to 11.30 a.m. on 21.04.2008; PW-4 is the another witness stated to have seen the dead-body of the deceased in the defecation ground near the Panchashahi Darga at Talikoti; PW-5 is stated to be witness who saw the accused taking the deceased girl by enticing her to give biscuits; PW-6 is the owner of the house in which the appellant/accused was the tenant and saw the appellant/accused has taken the victim-girl inside the house; PW-7 is a panch witness for scene of offence panchanama as per Ex.P.5; PW-8 is a panch witness to panchanamas Ex.P.6 and Ex.P.7; PW-9 is the mother of the complainant and the grandmother of the deceased; PW-10 is the mother of the deceased and wife of PW-2; PW-11 is another witness who found the dead-body of the deceased at about 6.30 a.m. or 7.00 a.m. near Panchashahi Darga at Talikot; PW-12 is the scribe of the complaint Ex.P.2; PW-13 is the Police Constable, who carried the FIR and complaint and submitted before the JMFC, Muddebihal; PW-14 is the Police Constable who carried the seized articles to FSL Office, Bengaluru for examination; PW-15 is the Police Constable who carried the dead-body of the deceased for post mortem examination and handed over the dead-body to the father of the deceased; PW-16 is the Doctor who conducted postmortem examination over the dead-body of the deceased and issued final opinion as per Ex.P.12; PW-17 is the Doctor who examined the accused and issued a certificate as per Ex.P.14; PW-18 is a Junior Engineer, PW-D, Muddebihal who prepared the sketch map of scene of offence wherein the dead-body of deceased was found and house in which offence was taken place; PW-19 is the another Police Constable who carried clothes of appellant/accused for FSL Office, Belgaum for chemical examination; PW-20 is the PSI, Talikoti PSI, who arrested the accused and produced before CPI; PW-21 is the CPI who has received the complaint and registered a crime as Crime No. 49/2008 and sent FIR to the court; PW-22 is the Retired Dy. S.P. who has received the Crime No. 49/2008 and conducted investigation and filed charge-sheet and PW-23 is the CPI, who had conducted the investigation of first part. Evidence of PWs. 2, 9, 10, 11 and 12: 39. PW-10 is the mother of the deceased and wife of PW-2. She had stated that about 3 years before from the date of giving evidence before the court, at evening 5.00 p.m. the deceased went outside the house for playing but did not return to the house and on that day her husband PW-2 had been to Vijayapur and he had returned to the house at 9.30 p.m. to 10.00 p.m. Further deposed that she along with her mother-in-law PW-9 have searched and even it is informed to PW-2 after returning to the house and all have searched but did not trace out the presence of the deceased. She had stated that on the next day morning at 7.00 a.m. about 4-5 person have come to the house and stated that the dead-body of the deceased was thrown on a ground near Darga and the body was found burnt and the place is meant for open defecation ground in the town and immediately she along with PW-2 and others went there and saw that the dead-body is that of her daughter and dead-body was burnt and found injury on the private part and blood was oozing and found a nighty of the deceased and gunny bag, kids chappal which are as per M.Os.1, 5 and 6. Further stated that after four days the police have apprehended the appellant/accused and have shown to PW-10 and she has deposed that the appellant/accused had told him he had committed the murder of the girl. Upon considering the cross-examination of PW-10 she had stated that she does not know the name of the appellant/accused and she had stated that she does not who is the appellant/accused upon seeing the appellant/accused. Upon considering this cross- examination it is not necessary for PW-10 to say what is the name of the appellant/accused since she is a rustic woman and she had deposed in natural way. 40. Further she has stated that she had requested to announce from loudspeaker of mosque regarding missing of the child. Further it is stated that the police have not recorded her statement. 40. Further she has stated that she had requested to announce from loudspeaker of mosque regarding missing of the child. Further it is stated that the police have not recorded her statement. Therefore, upon considering the entire evidence of PW-10 which is proved that her daughter’s dead-body was found in the burnt position in an open defecation ground near Panchshahi Darga and found the nighty worn by the deceased girl at the time of going to play with other children which is kept inside the gunny bag (MO.1). 41. PW-9 is the mother-in-law of PW-10 and mother of PW-2, who had also deposed in the same line as that of PW-10. Upon considering the cross-examination of PW-9, her evidence is found to be in natural way as she had deposed what she has witnessed the incident. I do not find any embellishments or contradictions or omissions found in the evidence of PW-9. 42. PW-2 is the father of the deceased who had stated that the deceased is her daughter and on the day of the incident he had been to Mudgal for attending marriage of his relative and then Vijayapur and returned to house at 10.30 p.m. to Talikoti and noticed that her daughter was found missing and he was told by PW-10 his wife and further submitted that till midnight on 21.04.2008, PWs. 2, 9 and 10 have searched the whereabouts of the deceased girl but did not trace out and on the next day morning at 7.00 a.m. he heard the news from the persons that in open defecation ground a burnt dead-body of child was thrown near the Darga and immediately he along with his wife and others went there and saw the said dead-body, identified that is of his daughter and accordingly, has lodged the complaint in the morning at 8.30 a.m. on 22.04.2008 as per Ex.P.2. 43. He further deposed that thereafter he heard from the police that the appellant/accused was apprehended and he came to know that the appellant/accused had lured the deceased by offering biscuit and committed the alleged offences. Further deposed that the police have come to the spot where the dead-body was thrown and conducted a spot panchanama as per Ex.P.5 and seized gunny bag (MO.1) which wrapped the dead-body, from the place where the dead-body was thrown. 44. Further deposed that the police have come to the spot where the dead-body was thrown and conducted a spot panchanama as per Ex.P.5 and seized gunny bag (MO.1) which wrapped the dead-body, from the place where the dead-body was thrown. 44. Upon considering the cross-examination of PW-2 nothing is revealed that he did not witness this incident as above stated. It is revealed during the course of cross-examination that whether the police have asked the PW-2 that the said gunny bag (MO.1) which containing the dead-body of the deceased and after it was suggested to him he had not given statement before the police. The PW-2 is an illiterate person and who is doing petty business of selling hair pin, combs by the side of road in front of open land in Talikoti. Therefore, nothing much significance is revealed so as to disbelieve the evidence of PW-2. 45. Therefore, upon considering the evidence of PWs. 2, 9 and 10 as above discussed, it is proved that the deceased was found missing from 21.04.2008 after 5.00 p.m. and even had made search till the late night upto 12.00 a.m. but the deceased was not traced out and on the next day morning found the dead-body of the deceased on the open defecation ground which is 50-60 feet away from the Panchashahi Darga and as per the evidence of PW-10 the private part of the deceased girl was injured and blood was oozed out. Therefore, these circumstances are proved from the above stated witnesses PWs. 2, 9 and 10. 46. PW-11 is the witness, who had stated that at morning 6.30-7.00 a.m. when as usual he went for attending toilet on the ground near Panchshahi Darga, he saw that a half burnt dead-body was found as it was thrown out on the ground and there were many people gathered and found that the dead-body is of daughter of PW-2 and also saw that a pair chappal and nighty have fallen beside the dead-body and the police have seized the same by recording panchanama. This witness is also elaborately cross-examined, but nothing is revealed to disbelieve his evidence so far as the finding of half burnt dead-body of the deceased along with MOs.5 and 6 pair chappals and nighty and this dead-body is the daughter of PW-2. 47. This witness is also elaborately cross-examined, but nothing is revealed to disbelieve his evidence so far as the finding of half burnt dead-body of the deceased along with MOs.5 and 6 pair chappals and nighty and this dead-body is the daughter of PW-2. 47. PW-1 is the panch for inquest panchanama as per Ex.P.1 and he had deposed that there is open defecation ground in Talikoti Town and police came there and inspected the land and found a dead-body of a minor girl wrapped inside the gunny bag which is half burnt and found there is blood from the private part and accordingly police have conducted inquest panchanama as per Ex.P.1. Upon considering the evidence deposed in examination-in-chief but testing with the cross-examination it is revealed that he does not know who are the father and mother of the deceased and also appellant/accused. 48. Further PW-1 had stated that on prior occasions before the death of the deceased he had seen the deceased and further stated that his house is situated 400 feet away from Anganawadi and that Anganawadi is 200 feet away from the place where the dead-body was thrown. Further it is cross-examined and suggested that he put the signature in the police station but this suggestion is denied by PW-1. Therefore, evidence of this witness proved that the dead-body was found in burnt position and there were injury found on the private part of the deceased and there was presence of blood coming out from the private part. Therefore, the presence of PW-1 during conducting inquest panchanama by the Investigating Officer is found to be proved which is occurred in a natural way. 49. PW-12 is the scribe of the complaint Ex.P.2 who had stated that he is a school teacher and as per say of PW-2, as PW-2 is an illiterate person he had scribed the complaint as per Ex.P.2 and to this the PW-2 had put his thumb impression. Therefore, lodging of complaint as per Ex.P.2 proved that on 22.04.2008 in the morning 8.30 a.m. complaint is lodged. Even though the PWs. Therefore, lodging of complaint as per Ex.P.2 proved that on 22.04.2008 in the morning 8.30 a.m. complaint is lodged. Even though the PWs. 2 and 12 have stated that the complaint was given at about 8.30 a.m. morning and in the complaint Ex.P.2 it is stated that the complaint is received at 8.00 a.m., but this morning time of 15 to 30 minutes is a minor contradictions and also there is no delay found in lodging the complaint as per Ex.P.2 before the police. PWs. 2, 9 and 10 have noticed this fact of seeing the dead-body of their daughter at morning 6.00 to 7.00 a.m. and immediately at 8.00 a.m. the complaint is lodged before the police and therefore there is no delay in lodging the complaint and the registration of FIR. Culpable Homicide amounting to murder (from PWs. 15 and 16): 50. As discussed above, it is the case of prosecution that the deceased victim was ravished and murdered brutally and therefore, it is the submission made by the learned Additional State Public Prosecutor that the death of the deceased is rape-cum-murder and more particularly the death of the deceased is proved as culpable homicide amounting to murder. The learned Additional State Public Prosecutor had taken the court to the evidences given by the witnesses, as from the evidences of PWs. 1, 2, 9, 10 and also the role of witnesses examined as discussed herein and much particularly the evidence of PW-16 (Doctor) is to be discussed. 51. PW-15 is the Police Constable he had stated that on 22.04.2008 he had taken the dead-body of the deceased-girl of 6 years old to the Government Hospital, Talikoti at the direction of the Investigating Officer-Circle Police Inspector for conducting post mortem examination. 52. PW-16 is the Doctor had deposed before the court that she has received the requisition from CPI, Muddebihal on 22.04.2008 to conduct post mortem examination over the dead-body of the deceased of 6 years old as it was handed over by the PW-15 and accordingly she has conducted the post mortem examination on 22.04.2008 from 12.05 to 2.20 p.m. 53. PW-16 is the Doctor had deposed before the court that she has received the requisition from CPI, Muddebihal on 22.04.2008 to conduct post mortem examination over the dead-body of the deceased of 6 years old as it was handed over by the PW-15 and accordingly she has conducted the post mortem examination on 22.04.2008 from 12.05 to 2.20 p.m. 53. PW-16 deposed that the dead-body was female child aged about 6 years measuring 3 feet 1” height and the posture of the body was pugilistic attitude the legs are flexed at the thigh and knees, the arms are flexed at elbows and held out in the front of the body and all fingers are hooked like claws, hair is singed, face is swollen and distorted, tongue protrudes, discharge of the mucus is seen over the right and left nostrils and mouth, charred burn is seen over the chest, abdomen, upper and lower limbs, edema of the left upper thigh, anterior aspect of the lower limbs. 54. Further it is the opinion of PW-16 that the burns are postmortem in nature and upon examination the Doctor had found the following external injuries on the dead-body of the deceased, which are follows: (i) Deep burn over the left arm 1” above the left elbow joint, measuring 2” x 1.” (ii) Fracture of right upper 1/3rd of the left shoulder. (iii) Superficial burns over the back, posteriorly extending up to lumber region. (iv) Fracture of the C2 and C3 cervical bones. (v) Lacerated wound measuring 2 x 1 cm, fracture of frontal bone. (vi) Fracture of left parietal bone. After dissection, Doctor noticed the following internal injuries: (i) Fracture of frontal bone. (ii) Fracture of left parietal bone. (iii) Brain membrane were intact. (iv) Brain haemorhagic spots seen. (v) Vertebral column haemorhagic spots seen at cervical bones i.e. C2 and C3. (vi) Thoracic area: All organs were intact, right and left lungs were pale. (vii) Hear: Left side empty, right side full of blood. (viii) Abdomen: Wall intact, peritonium pale, mouth, phraynx aesophagus, stomach contains semi solid food about 200 gms. (ix) Liver and spleen were plae. (x) 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 2 x 2 cms. (ix) Liver and spleen were plae. (x) 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 2 x 2 cms. Forechetes tear widening of vaginal opening and contusion over the vaginal wall. 55. The Doctor (PW-16) had given post mortem report as per Ex.P.11 and is of the opinion that the death was due to coma as a result of head injuries and recent signs of penetration present in the form of abrasion, contusion in and around the geniteria. Further gave opinion that there is pending for the microscophic evidence for the presence of spematezonia. Further stated that except burn injuries, all other injuries were ante mortem injuries. Therefore, it is proved that the deceased was first raped and then was murdered brutally and then the dead-body was burnt. Further it is the opinion of the Doctor that she has collected the vaginal swab for finding out the presence of seminal stain and spematezonia and collected in a bottle and sealed it and sent to the police to get FSL report. After receipt of the opinion from the FSL, the Doctor has formed final opinion that the presence of seminal stain was found negative. But it is the opinion of the Doctor that due to the burn there is possibility of perishing of seminal stain in the vaginal swab and accordingly she has given her final report as per Ex.P.12 and FSL report, what she obtained is marked as Ex.P.13. 56. There is no much in the cross-examination of PW-15 Police Constable. Therefore, it is proved that he has taken the dead-body of the deceased-girl to the Doctor (PW-16) for the purpose of post mortem examination. Then upon considering the evidence of PW-16 Doctor with reference to the cross-examination, nothing is revealed that PW-16 is telling lie before the court. It is the cross-examination to the effect and fortified the prosecution case that the nature of injuries occurred on the dead-body of the deceased do not discredit the evidence of PW-16. 57. It is the cross-examination to the effect the Doctor said that she cannot say whether there is possibility of oozing of blood from nostril and protruding out of mouth in case of throttling. 57. It is the cross-examination to the effect the Doctor said that she cannot say whether there is possibility of oozing of blood from nostril and protruding out of mouth in case of throttling. But the prosecution case is fortified that there is a possibility of strangulation. During the course of cross-examination the prosecution case is fortified that there was penetration in the vaginal can be opened by fingers. 58. Counsel for the appellant/accused argued with reference to the cross-examination that since there is absence of seminal stains and spematezonia in vaginal swab there cannot be sexual intercourse but this suggestion is denied. It is worthwhile to analyse herein that just because of absence of seminal stains and spematezonia in vaginal that cannot be said that there was no rape on the deceased. Further the suggestions put by the learned counsel for the defence that as the necessary to come out as true that if healthy grown up man commits forcible sexual intercourse of a tender aged girl then there is every likelihood of tear of vaginal parts and or bleeding from vagina. As could be seen from the post mortem report-Ex.P.11 coupled with the evidence of PW-16 which proves that vagina red angry looking, labia major-edematic, labia minor-tear left side of the labia minor and abrasion seen over the labia miner, measuring 2 x 2 cm. Forechettes tear, widening of vaginal opening and contusion over the vaginal wall. Therefore this itself concretely proves that there is aggravated penetrative sexual assault on the private part of the deceased. Therefore, upon considering the evidence of Doctor (PW-16) both examination-in-chief and cross-examination the defence counsel failed to prove that rape-cum-death was not occurred. Forechettes tear, widening of vaginal opening and contusion over the vaginal wall. Therefore this itself concretely proves that there is aggravated penetrative sexual assault on the private part of the deceased. Therefore, upon considering the evidence of Doctor (PW-16) both examination-in-chief and cross-examination the defence counsel failed to prove that rape-cum-death was not occurred. From the evidence of PW-16 as discussed in detail it is proved that the deceased before commission of her murder there was a aggravated penetrative sexual assault on the child and one can imagine at a tender age of 6 years old a rape in the nature of aggravated penetrative assault was found on her how the victim-girl has suffered injuries on body physically, mentally and emotionally and struggled herself to come out of such trauma and in this struggle period the deceased was done to death by forcibly impacted her head to hard object like to say on the ground or to wall and caused injuries on head as it is proved that there is fracture of frontal bone and left parietal bone and fracture of C-2 and C-3 cervical bones and after murdering the girl-child and burnt dead-body. Therefore, this is a brutal murder was committed in a cold blooded manner which shook the conscious of the court and also to the entire society. Therefore, upon discussion made as above, the prosecution is able to prove that the death of the deceased is homicidal death amounting to murder preceding there was rape on her as proved it is so brutally ravished by sex maniac. Analysis of the evidences of PWs. 3, 5 and 6-last seen theory: 59. As the entire prosecution case is based on circumstantial evidence, the evidence of PWs. 3, 5 and 6 assumes significance and importance upon making proper analysis of their evidence. As per the prosecution case, PW-3 is the witness, who has lastly seen the appellant/accused while the appellant/accused carrying gunny bag (MO.1) at night 11.00 to 11.30 a.m. on 21.04.2008. As the entire prosecution case is based on circumstantial evidence, the evidence of PWs. 3, 5 and 6 assumes significance and importance upon making proper analysis of their evidence. As per the prosecution case, PW-3 is the witness, who has lastly seen the appellant/accused while the appellant/accused carrying gunny bag (MO.1) at night 11.00 to 11.30 a.m. on 21.04.2008. As per the prosecution case PW-5 is the witness who has lastly seen the appellant/accused taking the deceased into his house by offering biscuit to the deceased-girl on 21.04.2008 at 7.00 p.m. and PW-6 is the owner of the house of the appellant/accused in which the appellant/accused is residing on rental basis and he has lastly seen the appellant/accused taking the deceased-child by offering biscuit to her on evening at 7.00 p.m. on 21.04.2008. Therefore, the analysis of the evidence of these PWs. 3, 5, and 6 should be done with utmost care and caution with proper assessment and analysis. In that background the principle of law laid down by the Hon’ble Apex Court in various decisions are followed. 60. PW-3 had stated in the evidence that he is doing business of making omelet in a cart vehicle and therefore, PW-3 is a petty business man. He has stated that his house situated near Panchshashi Darga. For doing omelet business he used to leave his house at about evening 6.00 to 6.30 p.m. and returned to the house at night 11.00 p.m. to 12.00 a.m. For returning to his house he used to go near Panchshahi Darga and then goes to his house. He has stated that the house of complainant as well as appellant/accused were situated in Chorgasthi lane which is beside the lane of the house of PW-3. He studied up to 6th standard and knows writing and reading in Kannada language. He has deposed that about 2 years before from the date of giving evidence before the court that after completion of his omelet business was returning to his house and reached Panchshahi Darga at 11.30 p.m. and parked his cart near Panchshahi Darga and he was to take the instruments of vessels from the cart to his house and at that time he saw that the appellant/accused was carrying a gunny bag on his shoulder coming from Chorgasthi lane and pass through Panchshahi Darga. Further stated that on the next day morning at 7.00 a.m. he went for attending second nature call at open defecation ground by passing Panchshahi Darga and the said land is 50-60 feet away from Panchshahi Darga and saw the gunny bag which he had seen on the previous night which was carried by the appellant/accused. Further deposed that the PSI had summoned him and gave statement before the police that what he had seen the gunny bag carried by the appellant/accused on the previous night and the same was seen on the next day morning at 7.00 a.m. when he had been to the said open defecation ground for attending the second nature call. For the question posed by the prosecution he had stated that he came to know that in the said gunny bag there was dead-body of a female child and she is the daughter of PW-2. Further to a specific question posed by the prosecution the PW-3 had described the clothes worn by the appellant/accused that who had seen a lungi, black boots which were seized by the Investigating Officer (PW-22) as Mos.2, 3 and 4 which were worn by the appellant/accused and gunny bag as MO.1 which was carried by the appellant/accused on the last night. The cross-examination of PW-3 is considered to the effect that much is crossed regarding the geographical area and the houses situated in and around the Panchshahi Darga, open defecation ground, and the distance of Bus-stand, Panchshahi Darga and place of business and his returning to the house after completion of his omelet business. Upon considering the line of cross-examination in this regard, nothing discredit of the prosecution case is revealed that his presence what he has deposed in the examination-in-chief that he was doing omelet business and had returned to the house and parked his cart near Panchshahi Darga and taking the instrument from the cart and at that time seeing the appellant/accused with gunny bag (MO.1) are all found intact. All these questions in the course of cross-examination in this regard fortifies the prosecution case itself that the PW-3 had seen the appellant/accused on the last night at 11.00 p.m. to 11.30 p.m. carrying gunny bag (MO.1) and worn clothes (MOs.2 and 4) and boots (MO.3). 61. All these questions in the course of cross-examination in this regard fortifies the prosecution case itself that the PW-3 had seen the appellant/accused on the last night at 11.00 p.m. to 11.30 p.m. carrying gunny bag (MO.1) and worn clothes (MOs.2 and 4) and boots (MO.3). 61. Further cross-examination to the effect that he had given statement before the police on the day of giving complaint at about 8.00 to 8.30 p.m. It is suggested in the course of cross-examination he has not seen the appellant/accused on the night 11.00 to 11.30 p.m. carrying gunny bag (MO.1) but the PW-3 had denied all the suggestions. It is proved from the evidence of PW-3 that he had seen gunny bag (MO.1) which is seized as per seizure panchanama-Ex.P.5 and he had seen the same gunny bag that appellant/accused was carrying at night 11.00 to 11.30 p.m. on 21.04.2008. From the evidence of PW-23, who had conducted the investigation of first part and PW-7, who is a witness to spot panchanama as per Ex.P.5, even though PW-7, who is the panch to seizure panchanama as per Ex.P.5 had stated that the Investigating Officer had conducted spot panchanama as per Ex.P.5 and collected gunny bag, a piece of nigthy and one pair chappal. The pair of chappal which is pair of kids chappal, one nighty are marked as MOs.5 to 7, but had not stated that the gunny bag is MO.1. But just because gunny bag found on the ground in which the dead-body was kept is seized but just non marking of the said gunny bag from this witness PW-7 is a just minor contradiction which do not discredit the conducting of seizure panchanama as per Ex.P.7 and seizure of gunny bag MO.1 and pair of kids chappal and nighty of a girl kids which are marked as MOs.5 and 6 are all proved. Upon perusing Ex.P.5 panchanama it is a spot panchanama and seizure of gunny bag (MO.1) and pair of kids chappal and nighty of small kid which are marked as MO.1, 5 and 6 respectively as per seizure panchanama Ex.P.7. 62. Upon perusing Ex.P.5 panchanama it is a spot panchanama and seizure of gunny bag (MO.1) and pair of kids chappal and nighty of small kid which are marked as MO.1, 5 and 6 respectively as per seizure panchanama Ex.P.7. 62. PW-4 is also a spot pancha to Ex.P.5-spot panchamana and seizure panchanama as per Ex.P.7 and he had stated that on the next day of incident he went to attend second nature call and came to know that a dead-body with gunny bag was thrown on the open defecation ground and there was dead-body inside the gunny bag and there was blood oozed out from the private part of the child and he had identified chappal and clothes. To the aspect of MO.1 only he had turned hostile. But, this hostility on the part of PW-4 does not disprove the case of the prosecution that a gunny bag (MO.1) which wrapped the dead-body of the deceased found on the open defecation ground. 63. Therefore, the evidence of PW-3 that he has seen the appellant/accused was carrying gunny bag at 11.00 to 11.30 p.m. on 21.04.2008 and the same gunny bag he has witnessed fallen on the open defecation ground in the morning on 22.04.2008 when he went for attending second nature call. Therefore, the evidence of this last seen witness PW-3 is proved to be telling truth before the court. Upon considering the entire cross-examination in this regard and upon making proper analysis of evidence of PW-3 in the course of cross-examination nothing is revealed that this PW-3 is a chance witness or a planted witness but on the other hand the evidence of PW-3 inspires confidence of the court that who is a natural witness having naturally seeing the appellant/accused at night 11.00 to 11.30 p.m. carrying with gunny bag (MO.1) going towards Chorgasthi lane and passed through Panchshahi Darga and on the next day morning at 7.00 a.m. when he went for attending second nature call in the open defecation ground he noticed the very same gunny bag (MO.1) he had seen on previous night which was found on the ground with dead-body of the deceased-girl. This circumstance proves that on 21.04.2008 at night 11.00 to 11.30 p.m. after completion of his business PW-3 going to his house situated near Panchshahi Darga and parked his cart and when he was taking his vessel instruments to his house, at that time, he had seen the appellant/accused that he was going from Chorgasthi lane and going towards open defecation ground passing through Panchshahai Darga and immediately on the next day morning at 7.00 a.m. he had witnessed the same gunny bag containing the dead-body. Therefore, there is no much time gap between seeing the appellant/accused with gunny bag (MO.1) lastly at 11.00 to 11.30 p.m. on 21.04.2008 and in the morning at 7.00 a.m. on 22.04.2008 within a span of 7 to 8 hours he had seen the said gunny bag with dead-body was found on the ground. Therefore, the evidence of PW-3 is found to be cogently believable and trustworthy that he had lastly seen the appellant/accused at night 11.00 to 11.30 p.m. In this regard, I humbly followed the principle of law laid down by the Hon'ble Apex Court to appreciate the evidence of witness last seeing the appellant/accused. After analysing the evidence of PW-3 as discussed above, I place reliance on the decision of the Hon'ble Apex Court in the case of State of U.P vs. Satish, (2005) 3 SCC 114 , wherein at Para 22, Their Lordships were pleased to observe as follows: “22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.” 64. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.” 64. When the evidence of PW-3 conclusively proves that at night 11.00 p.m. to 11.30 p.m. on 21.04.2008 the PW-3 had seen the appellant/accused carrying gunny bag which was same gunny bag which was found on the next day at morning in the open defecation ground near Panchshahi Darga and quite naturally when the dead-body was wrapped up by gunny bag (MO.1) at that point of time there was no scope for PW-3 suspecting the appellant/accused. Therefore, he could not enquire the appellant/accused as it was found natural circumstances for any person. But when the dead-body was found which was wrapped up with the same gunny bag on the next day morning had been seen by the same witness, PW-3 and it is proved that the appellant/accused was carrying the said gunny bag. Then it is the burden on the appellant/accused to explain and to discharge his onus that he was not carrying the said gunny bag and what it was contained. But during the course of examination under Section 313 of Cr.P.C. the appellant/accused had not given any explanation in this regard. When these incriminating evidences revealed against the appellant/ accused and it is put to him during the trial court, absolutely there is no explanation for these incriminating evidences found against the appellant/accused. In this regard, I place reliance on the decision of the Hon’ble Apex Court in the case of State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254 , wherein at Para 22 and 23, Their Lordships were pleased to observe as under: “22. In Sahadevan alias Sagadevan vs. State, (2003) 1 SCC 534 , the prosecution established the fact that the deceased was seen in the company of the appellants from the morning of 5-3-1985 till at least 5 p.m. on that day when he was brought to his house and thereafter his dead-body was found in the morning of 6-3-1985. In the background of such facts the Court observed: “Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. In the background of such facts the Court observed: “Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever.” 23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re: Naina Mohd. AIR 1960 Mad. 218 .” 65. The principle has been succinctly stated in Re: Naina Mohd. AIR 1960 Mad. 218 .” 65. It is onus on the appellant/accused as per Section 106 of the Indian Evidence Act to explain whether the said gunny bag belonged to him or not and what was contained in the said gunny bag during the course of examination under Section 313 of Cr.P.C. Therefore, in this regard the principle of law laid down by the Hon’ble Apex Court as stated above, is squarely applicable to the case on hand. Evidence of PW-5 and PW-6: 66. The principle of law laid down by the Hon’ble Apex Court in Kashi Ram’s case and Satish’s case stated supra, are also squarely applicable to the case on hand while perusing and analyzing the evidence of PWs. 5 and 6. PWs. 5 and 6 are the witnesses who have lastly seen the appellant/accused with the deceased by saying that the appellant/accused was offering biscuit to the deceased-girl and the appellant/accused was taking the girl inside his house. 67. PW-5 is an illiterate coolie workman and deposed that he had seen the house of the complainant and the appellant/accused and are situated at Chorgasthi Lane. It is further deposed that the appellant/accused was in the house of PW-6 on rent basis and also he had seen the deceased and he stated that 2½ years before giving evidence before the court he deposed that on the day of the incident he was sitting near Panchshahi Darga at evening 6.00 p.m. and there were many people infront of the Panchshahani Darga, then he left to market and returned from market at night 12.00 to 1.00 a.m. and on the next day morning at 5.00 to 5.30 a.m. he came to know the fact that on the open defecation ground the dead-body of the said deceased was thrown-out and he went there and saw the dead-body and found burnt injury on the face and mouth and there was blood clotted on the private part of the deceased and also clothes she has worn and chappals were found lying besides the dead-body and those clothes and chappals were marked as Mos.5 and 6. 68. PW-5 had turned hostile towards the prosecution case and the Public Prosecutor after taking permission from the Court cross-examined the PW-5. The PW-5 admitted the suggestions put by the prosecution as true. 68. PW-5 had turned hostile towards the prosecution case and the Public Prosecutor after taking permission from the Court cross-examined the PW-5. The PW-5 admitted the suggestions put by the prosecution as true. The admissions of PW-5 that it is true that he was sitting on the katta of Panchshahi Darga at evening 6.00 p.m. and at that time the appellant/accused also standing near Panchshahi Darga at about 10-15 feet away from the him. Further admitted as true that at that time the deceased was playing, further at evening 7.00 p.m. the appellant/accused had taken the deceased girl inside his house and thereafter he went to market and also admitted that MO.1 gunny bag was found near the dead-body of the deceased on the open defecation ground. Upon considering this portion of evidence of PW-5, the PW-5 admitted as true to the suggestion put by the prosecution that the appellant/accused was standing in front of Panchshahi Darga at evening 6.00 p.m. on 21.04.2008 who was away to 10-15 feet from PW-5 and therein the deceased girl was playing and then the appellant/accused had taken the deceased inside his house and then the PW-5 left the place of Panchshahi Darga and went to market. The only contradictions revealed between the evidence given in examination-in-chief and cross-examination is the time which is much canvassed by the counsel for the appellant/accused. During the course of examination-in-chief, PW-5 has stated that he sat at evening 6.00 p.m. near Panchshahi Darga, but in the course of cross-examination by the prosecution (since he turned hostile) the PW-5 had stated the time that at 7.00 p.m. the appellant/accused had taken the deceased inside his house then he went to market. The counsel for the appellant/accused further argued that in the course of cross-examination done by the defence counsel the PW-5 had admitted that at evening 6.00 p.m. he went to the market and then returned to the house at mid night at1.00 a.m. Therefore, it is much argued that when in the course of cross-examination by the Public Prosecutor till he was present in the Panchshahi Darga at evening 7.00 p.m. and then went to the market. Therefore submitted the version deposed in the course of cross-examination by the defence counsel can be taken as true and argued that when the PW-5 had been to market at 6.00 p.m. then he had not seen at 7.00 p.m. the appellant/accused was taking the deceased inside his house. Upon perusing this evidence his evidence is to be considered in a realistic manner taking complete visualization of facts deposed by PW-5 in the background of the literacy of PW-5 and he is rustic in nature. Admittedly, PW-5 is an illiterate person and is a coolie worker. The defence counsel is not disputing the fact that PW-5 was present near Panchshahi Darga at evening 6.00 p.m. and at that time the appellant/accused was also standing 10-15 feet away from PW-5 and there was so many people gathered at that place and time. All these factors are not disputed by the appellant/accused. It is only vehemently contended on the aspect of time stated in both the cross-examination of the Public Prosecutor and the defence counsel. But, this contradiction of time as stated by PW-5 that during the course of cross-examination of the Public Prosecutor he had stated that till 7.00 p.m. he was present near Panchshahi Darga but in the course of cross-examination by the defence counsel he had stated that at 6.00 p.m. onwards he had been to market. Upon analysing this type of evidence considering the background of PW-5 who is an illiterate and what was the time stated in this regard is minor contradictions which do not go to the very core of the prosecution case. 69. Whatever the admission made in the course of cross-examination by the defence counsel stating that at very 6.00 p.m. onwards he had been to market is a ‘stray admission’ and this stray admission by stating the time at 6.00 p.m. which does not go to the very root of the prosecution case rendering the evidence of PW-5 is unbelievable and also the prosecution case. From this minor contradiction as it is opinion of me that it is a stray admission regarding stating the time of going to the market. From this minor contradiction as it is opinion of me that it is a stray admission regarding stating the time of going to the market. Furthermore there is no much time gap say about 4-5 hours ranging from morning to afternoon or afternoon to evening but here only time gap is ‘one hour’ and admittedly both these times are at evening 6.00 p.m. to 7.00 p.m. Further PW-5 is a coolie worker and illiterate person and has given evidence on 23.12.2010 after more than two years from the date of the incident. It is quite natural some minor contradictions are bound to occur because of natural consequence of fading of memory. Therefore, it always cannot be expected that the evidence is to be told before the court exactly in time and in verbatim. Therefore, in this way the appreciation of evidence is not in nature of making mathematical calculation that such and such is stated in the examination-in-chief and such and such is stated in the cross-examination. Therefore, some amount of contradiction is revealed, hence, rendering the prosecution case unbelievable. Appreciation of evidence as stated above is not as if mathematical calculation by saying 2+2=4 or 3+3=6 but appreciation of evidence is making entire visualization of the case, background of the witnesses whether they are literate or illiterate, their educational background, their places of residence and the time gap between the recording of statement and between the date of incident and the date of recording evidence and natural human being memory all these things are to be considered while evaluating and analysing evidence of witness. Therefore, in this regard the only time gap between the admission given in the course of cross-examination by the prosecution and in the course of cross-examination by the defence counsel is only ‘one hour’ and admittedly these two events of time as stated by PW-5 is at evening on the same day. Therefore, in this background whatever the admission stated by PW-5 in the course of cross-examination of the defence counsel stating that at 6.00 p.m. he went to market, is only a stray admission which do not go to the core of the prosecution case. Therefore, in this background whatever the admission stated by PW-5 in the course of cross-examination of the defence counsel stating that at 6.00 p.m. he went to market, is only a stray admission which do not go to the core of the prosecution case. The entire evidence of PW-5 is visualized as per the undisputed fact of the prosecution case that at about 6.00 p.m. to 7.00 p.m. when the deceased was playing near Panchshahi Darga, both PW-5 and appellant/accused were there and appellant/accused was standing 10-15 feet away from PW-5 and from the evidence it is revealed as come true this disputed fact by the defence in the course of cross-examination that the appellant/accused had taken the deceased inside his house. This fact is not much disputed in the course of cross-examination by the defence side. Except suggestions in this regard that the appellant/accused had not taken the deceased inside his house, nothing much is cross-examined and the said suggestion is denied. 70. Therefore, upon applying the principle of law laid down by the Hon’ble Apex Court stated supra regarding the last seen theory that the PW-5 had lastly seen the appellant/accused on 21.04.2008 at evening 6.00 p.m. to 7.00 p.m. and had seen the appellant/accused had taken the deceased inside his house as the house of the appellant/ accused is not far away from Panchshahi Darga which is on next lane. Admittedly, Talikoti Town is a small town. This PW-5 came to know that what he had seen the deceased in the company of the deceased as discussed above, at evening 6.00 p.m. to 7.00 p.m. and then on the very next day he came to know that the very same girl was found murdered and her dead-body was thrown on the open defecation ground. Therefore, considering this time gap between that the last seeing the deceased with the appellant/accused as the appellant/accused had taken the deceased inside his house is proved. Therefore, considering this time gap between that the last seeing the deceased with the appellant/accused as the appellant/accused had taken the deceased inside his house is proved. There is no much time gap between the time that the PW-5 witnessing the appellant/accused was taking the deceased inside his house and on the very next day morning at 5.00 a.m. to 5.30 a.m. on 22.04.2008 the PW-5 had found that the dead-body of the deceased as the very same girl was found dead and her dead-body was thrown in the open defecation ground and also when this incriminating evidence revealed during the prosecution side evidence, is put before the appellant/ accused during the course of examination under Section 313 of Cr.P.C. but for this absolutely there is no explanation by the appellant/accused. Therefore, the principle of law laid down by the Hon’ble Apex Court stated supra is squarely applicable to the case on hand while appreciating the evidence of this PW-5 had lastly seen the appellant/accused by taking the deceased inside his house is conclusively proved. 71. PW-6 is the owner of the house of the appellant/accused in which the appellant/accused is residing in the house by taking the house on rent basis from PW-6. The PW-6 had stated that his house is situated 50-60 feet away from the house of PW-2-complainant and he knows the children of PW-2. He had stated that when the daughter of PW-2 died, she was aged 8-9 years. At morning he went for toilet in open defecation ground near Darga therein many people have gathered and saw that the dead-body of child was thrown out and he came to know that the said dead-body of child is daughter of PW-2 and also found that he had noticed there were burnt injuries on the face, body and there were blood clot in private part of the dead-body of the child. 72. Further deposed that the mother of the deceased girl was searching the deceased and at that time the appellant/accused advised the mother of the deceased child to make announcement through loudspeaker from mosque. Further PW-6 has stated that the appellant/accused by offering the biscuit to the deceased-girl had taken the deceased–girl into his house. The PW-6 had partially turned hostile towards the prosecution case. Further PW-6 has stated that the appellant/accused by offering the biscuit to the deceased-girl had taken the deceased–girl into his house. The PW-6 had partially turned hostile towards the prosecution case. Therefore, Public Prosecutor after obtaining permission from the court had cross-examined the PW-6 and in the course of cross-examination the PW-6 had said true to the suggestions put by the prosecution that on 25.04.2008 the police have brought the appellant/accused into his house and from there went to the place where the dead-body was thrown out. Further stated that the appellant/accused had told him before other people when he was in the custody of police that he had ravished the girl and in order to hideout the incident had burnt the child after committing rape and murdering her and thereafter at night 12.00 a.m. he had thrown the dead-body of the deceased girl into the ground and from the place where the dead-body was found the police have seized gunny bag (MO.1), chappals (MO.5), piece of burnt nighty of deceased girl (MO.6). 73. Upon considering the cross-examination of this PW-6 nothing is revealed that the PW-6 is telling falsehood before the court regarding he had lastly seen the appellant/ accused by luring and enticing the deceased by offering biscuit and taken her inside his house. When PW-6 had deposed this material aspect against the appellant/accused, but in the course of cross-examination nothing is revealed to discredit this evidence. The cross-examination is to the effect of search made for tracing out the deceased and putting suggestions that he had not seen the appellant/accused by taking the deceased inside the house and the profession of the appellant/accused and the wife and children of the appellant/accused. Further cross-examined to the effect of giving statement before the police. The counsel for the appellant/accused argued that during the course of cross-examination the PW-6 had admitted that he had not given statement before the police that the appellant/accused had taken the deceased inside the house by offering biscuit. Therefore, argued that whatever the evidence given before the court in examination-in-chief is improvement. But upon considering the evidence of PW-22 who is Deputy Superintendent of Police who had conducted the second part of investigation and he had taken over investigation from PW-23 on 24.04.2008 and during the course of investigation on 29.04.2008 he had recorded the statement of PW-6. Therefore, argued that whatever the evidence given before the court in examination-in-chief is improvement. But upon considering the evidence of PW-22 who is Deputy Superintendent of Police who had conducted the second part of investigation and he had taken over investigation from PW-23 on 24.04.2008 and during the course of investigation on 29.04.2008 he had recorded the statement of PW-6. But PW-22 had categorically stated that he had recorded the statement of PW-6, but during the above stated admission, in the cross-examination such question is not asked to PW-22 whether PW-6 had given such statement or not while giving statement. Therefore, when such question is not asked to PW-22 who recorded the statement of PW-6, that does not amounting to improvement or omission. PW-6 had categorically deposed before the court that he had seen the appellant/accused that by enticing and offering biscuit he had taken the deceased inside his house and this evidence of PW-6 is not impeached in the course of cross-examination. Just because the PW-6 had not stated this fact before the police while giving statement, it does not take away the evidence revealed in the mouth of PW-6 deposed before the court. Further whatever the stray admission stated by PW-6 that he had not given such statement before the police and when the said fact is not put to PW-22 that whether such statement was given or not and in absence of such failure of making impeachment by questioning PW-22, whatever the statement given by PW-6 in this regard is not amounting to omission but whereas this fact is corroborated by the evidence of PW-5 upon considering he has seen the appellant/accused luring the deceased and taken her inside his house. What he has deposed before the court can be seen in the statement under Section 161 of Cr.P.C. of PW-5 before the Investigating Officer. Therefore, it is proved that the evidence of PW-5 that he has lastly seen the appellant/accused has taken the deceased into his house is corroborated by the evidence of PW-6. What he has deposed before the court can be seen in the statement under Section 161 of Cr.P.C. of PW-5 before the Investigating Officer. Therefore, it is proved that the evidence of PW-5 that he has lastly seen the appellant/accused has taken the deceased into his house is corroborated by the evidence of PW-6. The suggestion put by the defence counsel to PW-6 that PW-6 had not seen the appellant/accused by enticing the deceased by offering biscuit and taken inside his house but this suggestion is denied by PW-6 and therefore the very next question is that he has not given such statement before the police, assumes no significance to say that PW-6 is telling lie before the court. Therefore, the evidence of PW-6 what he has deposed in examination-in-chief that he had seen the appellant/accused taking the deceased inside his house by offering biscuit is unequivocally proved to be true upon considering and analyzing the entire evidence of PW-6 both examination-in-chief and cross-examination. Discovery of fact under Section 27 of Evidence Act: 74. From the evidences discussed above, the appellant/accused has been arrested by the Investigating Officer on the basis of the FIS lodged by PW-2 on 25.04.2008 and when the appellant/accused was in police custody he has given statement before the police and has given information to the Investigating Officer that he has committed the offences as alleged and also burnt the dead-body and the appellant/accused has led the police to his house wherein he has committed the alleged offence and therefore the “so much of such information” given by appellant/accused that showing the place of incident where the dead-body of the deceased was burnt after committing the offence as alleged which is revealed and admissible and in this regard, I place reliance on the judgment of Hon’ble Supreme Court with regard to the appreciation of evidence of discovery of fact as stipulated under Section 27 of the Indian Evidence Act, in the case of Amitsingh Bhikamsingh Thakur vs. State of Maharashtra, (2007) 2 SCC 310 , wherein at paras 15 to 19 the various requirements of sections are summoned up and which are worth, relevant to be extracted as below: “15. So far as the discovery under Section 27 of the Evidence Act is concerned it appears to be from open space. So far as the discovery under Section 27 of the Evidence Act is concerned it appears to be from open space. In that context the observations of this Court in Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657 , need to be noted. 16. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotayya vs. Emperor, AIR 1947 PC 67 in the following words, which have become locus classicus: (IA p.77) “It is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the information to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A’, these words are inadmissible since they do not related to the discovery of the knife in the house of the informant.” 17. The aforesaid position was again highlighted in Prabhoo vs. State of Uttar Pradesh, AIR 1963 SC 1113 . “11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases [in the background events proved therein] is not always free from difficulty. It will, therefore, be worthwhile at the outset, to have a short and swift glance at Section 27 and be reminded of its requirements. The Section says: “27. It will, therefore, be worthwhile at the outset, to have a short and swift glance at Section 27 and be reminded of its requirements. The Section says: “27. 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.” 12. The expression ‘provided that’ together with the phrase ‘whether it amounts to a confession or not’ show that the section is in the nature of an exception to the preceding provisions particularly Section 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only ‘so much of the information’ as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word distinctly means directly, indubitably, strictly, unmistakably. The word has been advisedly used to limit and define the scope of the provable information. The phrase ‘distinctly relates to the fact thereby discovered’ is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. [See Mohd. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. [See Mohd. Inayatullah vs. State of Maharashtra, AIR 1976 SC 483 , SCC pp.831-832, Paras 11-12).” (Emphasis in original) 18. At one time it was held that the expression “fact discovered” in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Palukuri Kotayya Case ( AIR 1947 PC 67 ) and in Udai Bhan vs. State of Uttar Pradesh, AIR 1962 SC 1116 . 19. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.” Discovery of fact of Material objects 2, 3, 4, 7, 8 and 9 (PW-8 and PW-23): 75. The learned counsel for the appellant/accused vehemently submitted that in the present case the discovery of fact of seizure of articles from the house of the appellant/accused where it is the place of offence as per the prosecution case, is found to be not proved conclusively and this important link is missing and do not connect to the appellant/accused, therefore, the appellant/accused is liable to be acquitted. He argued that as per the witnesses, PW-8 and also as per the evidence of police officials, PWs. 22 and PW-23 the requirement of Section 27 of the Indian Evidence Act are not proved and therefore police have failed to receive “so much of such information” as discovery of fact linking to the appellant/accused. Therefore, he submitted that this missing link goes to the benefit of the appellant/accused. Therefore, submitted that the appellant/accused is liable to be acquitted as chain of link of circumstance is not making one full circle by linking to each other and therefore there is another aspect revealed the hypothesis that somebody might have committed the alleged offence but not the appellant/accused. In this back ground the submission made by the learned counsel for the appellant/accused the evidences in this regard are to be evaluated and assessed meticulously. Firstly the evidence of PW-23 Investigating Officer is to be considered. PW-23, the Investigating Officer had stated in his evidence that on 25.04.2008 the PSI (PW-20) had apprehended the appellant/accused and produced before him and recorded the voluntary statement of the appellant/accused and the appellant/accused had stated that he had shown the place where he had hidden the clothes which were worn at the time of commission of offence and accordingly went to the house of the appellant/accused and therein the appellant/accused has produced a gunny bag containing green colour lungi with coloured half banyan and a pair of boots and conducted panchanama as per Ex.P.7 upon seizure of these articles which are marked as MOs.2, 3, 4 and 9. 76. PW-8 is the panch witness to Ex.P.7 panchanama and had stated that the police and appellant/accused were there in the house of the appellant/accused and the appellant/accused went inside the house and shown the place where he had ravished the deceased-girl and killed her and burnt the dead-body and accordingly produced the kerosene Can (MO.7), match box (MO.8) which are seized as per Ex.P.6-seizure panchanama and then the appellant/accused had produced lungi, banyan, two boots kept in gunny bag (MO.9) kept in the room of the appellant/accused and which were seized by drawing panchanama as per Ex.P.7 which were MOs.2, 3, 4, 7, 8 and 9. Further stated that thereafter the appellant/ accused had taken the police and panchas where he has thrown the dead-body of the girl and there is another spot panchanam was conducted as per Ex.P.5. Therefore, the evidence of PW-23 who had conducted the investigation in this regard and recorded the panchanama as per Ex.P.6 and Ex.P.7 which had been done in the house of the appellant/accused and recovery of MOs.2, 3, 4, 7, 8 and 9 which are hidden inside the house of the appellant/accused is corroborated by the evidence of PW-8 as discussed above. Upon considering the cross-examination of PW-8, nothing is revealed that the entire investigation of seizure of MOs.2, 3, 4, 7, 8 and 9 from the house of the appellant/accused and recording panchanamas as per Ex.P.6 and Ex.P.7 are not proved. There is no impeachment in the cross-examination of PW-8 regarding what he has witnessed as deposed in examination-in-chief regarding seizure of MOs.7, 8 and 9 and drawing panchanamas as per Exs.P.7 and P.8. 77. The counsel for the appellant/accused argued that the mandatory requirement of Section 27 of the Indian Evidence Act, the discovery of fact of place of incident which is inside the house of the appellant/accused and seizure of MOs.2, 3, 4, 7, 8 and 9 are not proved. He argued that PW-8 had deposed that he went to the house of the appellant/accused and already the police and appellant/accused were there. Therefore submitted that the appellant/accused had not led to the place of incident so as to discovery of fact and collecting the evidence from “so much of such information” from there and further argued that the voluntary statement of the appellant/accused so far as obtaining “so much of such information” has not been got marked by the prosecution. Therefore, there is procedural lapses are occurred in rendering the entire episode of discovery of fact and obtaining “so much of such information” leading to discovery of fact are found to be shabby one. Therefore, he submitted that important link is missed herein and hence, the benefit should be given in favour of the appellant/accused. 78. Considering the arguments canvassed in this regard by the learned counsel for the appellant/accused, there may be procedural irregularities occurred while making discovery of fact in the present case. Therefore, he submitted that important link is missed herein and hence, the benefit should be given in favour of the appellant/accused. 78. Considering the arguments canvassed in this regard by the learned counsel for the appellant/accused, there may be procedural irregularities occurred while making discovery of fact in the present case. But mere such procedural irregularities and the defects in the course of investigation occurred by the Investigating Officer cannot be termed as they go to the core of the prosecution case that the very prosecution is toppled down. By such mere procedural lapses and defective investigation cannot be made ground to throw away the prosecution case itself. Mere defective investigation cannot be made a ground to throw away the prosecution case has not proved when the other evidences and circumstances proves the prosecution case. 79. In this regard, I place reliance on the judgment of the Hon’ble Apex Court and it is the principle of law that mere defective investigation do not lead to throw away the prosecution case otherwise the prosecution case is proved by other evidences and circumstances adduced before the court. 80. Regarding the principle of law of discovery of fact on the basis of “so much of such information” received during the course of investigation when the appellant/accused is in police custody and what would be the effect and its procedure and is laid down in the judgment of the Hon’ble Apex Court in the case of Geejaganda Somaiah vs. State of Karnataka, (2007) 9 SCC 315 , wherein at Paras 21 to 28, Their Lordships were pleased to observe as follows: “21. Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 the Evidence Act providing 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. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence. 22. As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act. 23. The position of law in relation to Section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and Others vs. Emperor, AIR 1947 PC 87 , wherein it was held: (IA pp. 76-66) “Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead-body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown has argued that in such a case the 'fact discovered' is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are admissible since they do not relate to the discovery of the knife in the house of the informant.” 24. In State of Uttar Pradesh vs. Deoman Upadhyaya, AIR 1960 SC 1125 , this Court held that Sections 25 and 26 were manifestly intended to hit an evil, viz. to guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. These sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing of offences as it is concerned with protecting persons who may be compelled to give confessional statements. Section 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. In that case the High Court had acquitted the accused on the ground that his statement which led to the recovery of gandasa, the weapon of offence was inadmissible. The accused Deoman had made a statement to hand over the gandasa which he stated to have thrown into a tank and got it recovered. The trial court convicted the accused for the offence of murder. The accused Deoman had made a statement to hand over the gandasa which he stated to have thrown into a tank and got it recovered. The trial court convicted the accused for the offence of murder. The Full Bench of the High Court held that Section 27 of the Evidence Act which allegedly created an unjustifiable discrimination between persons in custody and persons out of custody offending Article 14 of the Constitution of India, 1950 (in short the ‘Constitution’) was unenforceable. After the opinion of the Full Bench a Division Bench of the Court excluded from consideration the statement made by the accused in the presence of the police officer and held that the story of the accused having borrowed a gandasa on the day of occurrence was unreliable. The accused was acquitted but at the instance of the State of U.P., the High Court granted a certificate to file the appeal in this Court. This Court did not agree with the position of law settled by the High Court and decided to proceed to review the evidence in the light of that statement in so far as it distinctly related to the fact thereby discovery being admissible. Dealing with the conclusions arrived at by the High Court and on the facts of the case, this Court observed: (AIR p. 1133, Para 21) “The High Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by Deoman is provable in so far as it distinctly relates to the fact thereby discovered; and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court.” 25. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court.” 25. In Mohmed Inayatullah vs. State of Maharashtra, AIR 1976 SC 483 , it was held that expression “fact discovered” includes not only the physical object produced but also place from which it is produced and the knowledge of the accused as to that. Interpreting the words of Section “so much of the information” as relates distinctly to the fact thereby discovered, the Court held that the word “distinctly” means directly, indubitably, strictly, unmistakably. The word has been advisedly used to limit and define the scope of proveable information. The phrase “distinctly” relates “to the fact thereby discovered.” The phrase refers to that part of information supplied by the accused which is the direct cause of discovery of a fact. The rest of the information has to be excluded. 26. In Earabhadrappa alias Krishnappa vs. State of Karnataka, (1983) 2 SCR 552 , it was held that for the applicability of section 27 of the Evidence Act two conditions are pre-requisite, viz. (i) information must be such as has caused discovery of the fact, and (ii) the information must ‘relate distinctly’ to the fact discovered. Under Section 27 only so much of the information as distinctly relates to the fact really thereby discovered, is admissible. While deciding the applicability of Section 27 of the Evidence Act, the Court has also to keep in mind the nature of presumption under Illustration (a) to (s) of Section 114 of the Evidence Act. The Court can, therefore, presume the existence of a fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relations to the facts of the particular case. The Court can, therefore, presume the existence of a fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relations to the facts of the particular case. In that case one of the circumstance relied upon by the prosecution against the accused was that on being arrested after a year of the incident, the accused made a statement before the police leading to the recovery of some of the gold ornaments of the deceased and her six silk sarees, from different places which were identified by the witness as belonging to the deceased. In that context the court observed: (SCC p.337, Para 7) “7. There is no controversy that the statement made by the appellant Ex.P-35 is admissible under S.27 of the Evidence Act. Under Section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word ‘fact’ means some concrete or material fact to which the information directly relates.” 27. In State of Maharashtra vs. Damu JT, (2000) 5 SC 575, it has been held that the Section 27 the Evidence Act was based on the doctrine of confirmation by subsequent events and giving the section actual and expanding meanings, held: (SCC pp. 282-283, Para 35) “35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in section. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in section. The decision of the Privy Council in Pulukuri Kottaya vs. Emperor, AIR 1947 PC 67 , is the most quoted authority for supporting the interpretation that the ‘fact discovered’ envisaged in the section embraces the place from which the object was produced; the knowledge of the accused as to it, but the information given must relate distinctly to that effect.” 28. Besides Section 27 the Evidence Act, the courts can draw presumptions under Section 114, Illustrations (a) and Section 106 of the Evidence Act. In Gulab Chand vs. State of M.P. AIR 1995 SC 1598 , where ornaments of the deceased were recovered from the possession of the accused immediately after the occurrence, this Court held: (SCC pp.577-578, Para 4) “It is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan vs. State of Rajasthan, AIR 1956 SC 54 , that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof. It appears that the High Court in passing the impugned judgment has taken note of the said decision of this Court. But as rightly indicated by the High Court, the said decision is not applicable in the facts and circumstances of the present case. It appears that the High Court in passing the impugned judgment has taken note of the said decision of this Court. But as rightly indicated by the High Court, the said decision is not applicable in the facts and circumstances of the present case. The High Court has placed reliance on the other decision of this Court rendered in Tulsiram Kanu vs. State, AIR 1954 SC 1 In the said decision, this court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be drawn under the 'important time factor'. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case. In the instant case, it has been established that immediately on the next day of the murder, the accused Gulab Chand had sold some of the ornaments belonging to the deceased and within 3-4 days the recovery of the said stolen articles was made from his house at the instance of the accused. Such close proximity of the recovery, which has been indicated by this Court as an ‘important time factor’ should not be lost sight of in deciding the present case. It may be indicated here that in a latter decision of this Court in Earabhadrappa vs. State of Karnataka, (1983) 2 SCC 330 , this Court has held that the nature of the presumption and Illustration (a) under Section 114 of the Evidence Act must depend upon the nature of evidence adduced. No fixed time-limit can be laid down to determine whether possession in the recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant. Excepting an assertion that the ornaments belonged to the family of the accused which claim has been rightly discarded, no plausible explanation for lawful possession of the said ornaments immediately after the murder has been given by the accused. In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore the presumption arising under Illustration (a) of Section 114 Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments.” 81. Ex.P.23 is the voluntary statement of the appellant/accused which is stated to have been given on 25.04.2008. Upon perusing Ex.P.23, the entire statement is marked as Ex.P.23 in omnibus but the prosecution has not got marked the relevant portion in Ex.P.23 obtaining “so much of such information” leading to discovery of fact. (Here discovery of fact means recovery of articles or knowing the place of incident which is within the exclusive knowledge of the accused). This omission is on the part of the prosecution as well as non application of mind by the learned Sessions Judge while recording the evidence. It is mere lapse in procedure. Mere lapse in procedure cannot be said that this do not amount to substantive evidence of discovery of fact. No doubt it is true that the Public Prosecutor as well as the learned Sessions Judge during the course of trial ought to have brought attention in this regard while marking the relevant portion of obtaining “so much of such information” so as to lead discovery of fact as required under Section 27 of the Indian Evidence Act. No doubt it is true that the Public Prosecutor as well as the learned Sessions Judge during the course of trial ought to have brought attention in this regard while marking the relevant portion of obtaining “so much of such information” so as to lead discovery of fact as required under Section 27 of the Indian Evidence Act. But just by non marking the portion in Ex.P.23 it can be at the most be said that a mere procedure lapses which do not affect substantively the prosecution case. In Section 27 of the Indian Evidence Act the word used “so much of such information” is only relevant and thus, admissible. But, it is not prescribed in the Indian Evidence Act that is to be marked by receiving “so much of such information” in the statement. The marking of this portion obtaining “so much of such information” is a practice by convenient during the course of trial. Just this practice is not in the present case that does not mean that it takes away the entire prosecution case. In this regard, I place reliance on the judgment of this Court in the case of Ranjith K. and Others vs. State of Karnatak by MICO Layout Police Station and Others, 2019 (2) Crimes 50 (Kar). In the above cited case also a similar question arose as discussed above and the coordinate Bench of this court by making discussion of the legal provision enunciated in Section 27 of the Indian Evidence Act and with principle of law laid down by the Hon’ble Apex court, which is held as follows: “21.1 In this regard, learned counsel has relied upon a decision of this court reported in Vijaykumar vs. State, ILR 1994 Kar. 491 wherein this court has held that: “Section 27 of the Evidence Act, Information as leads to discovery of fact to be proved like any other fact - Recording in deposition of Investigating Officer, that particular statement recorded as exhibited, does not take place of substantive evidence - Duty of Sessions Judges and correct approach.” (Emphasis supplied) 21.2. In another ruling reported in M. Abbas, Dakshina Kannada vs. State of Karnataka, 1996 Crl. In another ruling reported in M. Abbas, Dakshina Kannada vs. State of Karnataka, 1996 Crl. L.J. 317 Kar, wherein this court has reiterated the above said principle that: “Voluntary statement alleged to have been made by the accused before Police, could not amount to substantive evidence even the recovery of the property produced by the accused would not be covered by Section 27 of Indian Evidence Act, at the most recovery of all those properties might lead to the inference that the accused had the knowledge that these properties were stored in a particular place. That might raise a strong suspicion against the accused but no accused can be convicted merely on account of suspicion however grave it may be.” 21.3. On meticulous understanding of the aforesaid decisions, it is noticed in Vijayakumar's case, that the court has not discussed as to what would happen if the particular portion of the voluntary statement of the accused is not deposed by the Investigating Officer, if the discovery of fact and recovery of any incriminating articles at the instance of the accused is otherwise proved by the prosecution. In the Abba's decision, though the court has reiterated the principle that unless the Investigating Officer deposes the contents of the statement of the accused, it will not become substantive evidence but still relied upon discovery of fact and recovery of incriminating articles at the instance of the accused but declined to accept the same on the ground that it only created a serious suspicion. 21.4. In our opinion, it is a right time once again to re-look into Section 27 of the Indian Evidence Act and consider whether the failure of the Investigating Officer to depose the entire contents of the statement made by the accused with reference to the discovery of fact and consequent recovery of any object, is altogether invalidates the total discovery of the facts and the recovery therein at the instance of the accused if it is otherwise established before the court. 21.5. It is worth to refer the provision itself i.e. Section 27 of the Indian Evidence Act which reads as follows: “27. 21.5. It is worth to refer the provision itself i.e. Section 27 of the Indian Evidence Act which reads as follows: “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.” The above said provision elucidates that the fact deposed as to discovery in consequence of information received from the accused of any offence in the custody of a Police officer so much of such information even though it is confession may be proved. In our opinion the marking of relevant portion of voluntary statement of accused and deposing the contents of the statement made by the accused is a procedural aspect on the part of the Investigating Officer who has to depose with regard to the contents of the information given by the accused. The above said Section can be safely understood that if any fact is deposed to as discovered in consequence of the information received from a person, accused of any offence, discloses that the fact is deposed to as discovery in consequence of information to be read as a whole. Therefore, the discovery of the factual aspects which led to recovery of any incriminating articles at the instance of the accused in consequence of the information forms a conjoint sentence, which cannot be bifurcated and it should be read as a whole. Therefore, if it is read as a whole, the consequence of discovery must be examined by the court with reference to other evidence on record and come to the conclusion whether the discovery of fact by the accused was there and in consequence of such information any recovery has been made. 21.6. It is also worth to mention here that the object of Section 27 of the Indian Evidence Act, has to be borne in mind regarding admissibility of the confession statement of the accused regarding discovery of any fact and consequential recovery if any. The evidence would not be admissible except as provided under section 27 of the Indian Evidence Act. It is also worth to mention here that the object of Section 27 of the Indian Evidence Act, has to be borne in mind regarding admissibility of the confession statement of the accused regarding discovery of any fact and consequential recovery if any. The evidence would not be admissible except as provided under section 27 of the Indian Evidence Act. In view of Section 24, 25 and 26 of the Indian Evidence Act which are the barricades to the court to accept any confession statement of the accused made before Police. Therefore, Section 27 of the Act states in order to render evidence leading to discovery of any fact admissible, the information must come from the accused in custody of the Police. Thereafter, on the basis of such information, the Police have discovered any fact or recovered any article at the instance of the accused. Therefore, the magnitude of this particular Section if it is properly understood makes it clear that, mere non deposition of the contents of the statement of the accused by the Investigating Officer will not altogether invalidates the consequential discovery of facts or recovery of any material objects. 21.7. Therefore, in this background, the court has to visualize the truth of the disclosure statement by testing the same from the consequential recovery of any material objects or articles at the instance of the accused. Merely because the Investigating Officer has not deposed word by word, the statement of the accused with regard to the information that by itself in our opinion is not sufficient to throw out the substantive evidence available to the court with regard to the consequential recovery of incriminating articles at the instance of the accused. Even otherwise the court can consider the truth as well as the genuineness of the consequential recovery at the instance of the accused. If the other materials on record, gives an assurance to the court with reference to the recovery of the incriminating articles, even though it is not specifically deposed about the information given by the accused, in our opinion, it only amounts to irregularity which would not in any manner paralyze the remaining portion of the recovery of the incriminating articles at the instance of the accused. Of course, what is statutorily required is that the Investigating Officer has to depose the discovery of facts in consequence of the information. Of course, what is statutorily required is that the Investigating Officer has to depose the discovery of facts in consequence of the information. The acceptability of what is deposed by the Investigating Officer with reference to the information given by the accused are all the circumstances to be visualised by the court independently, in the facts and circumstances of a given case. Strictly going by Section 27 of the Act, what is required is only the evidence of the Investigating Officer and the other witnesses if examined before the court to ascertain the whole gamut of the discovery of facts and recovery of any material objects or the articles at the instance of the accused. If the discovery of facts and consequent recovery is on the basis of some information given by the accused though not vividly depicted in the evidence of the Investigating Officer, in our opinion is not totally fatal to the consequential recovery at the instance of the accused. 21.8. We are not unmindful of the object of Section 27 of the Act. The provision may be mis-used by the dishonest Investigating Officers. In such cases, safeguards are insisted by the courts for the purpose of ensuring regularity and correctness of the actions of the Police Officers. But the same principle is not applicable to all the Police Officers who genuinely and promptly investigate the matters though they commit some lapses during the course of investigation unmindful of consequences of their acts. Therefore, it all depends upon the facts and circumstances of each case. But, the court should be alive and alert to examine whether the Investigating Officer on the basis of the information, has proceeded to discover the facts given by the accused and consequential recovery of the material objects or articles at the instance of the accused, were made. 21.9. Further added to the above, if the recovery Mahazar is fully supported by panch witnesses and also the evidence of the Investigating Officer with regard to the accused leading to place where the hidden articles were kept and at the instance of the accused, the said recovery has been made, this portion of the evidence which is substantive in nature, cannot be disregarded. Merely because the Investigating Officer has not deposed to what exactly the information given by the accused. Merely because the Investigating Officer has not deposed to what exactly the information given by the accused. Therefore, such information given by the accused if possible to the court can be inferred on the basis of the subsequent conduct of the accused witnesses and the Investigating Officer in recovery of incriminating articles at the instance of the accused. Therefore, we are of the opinion that, merely because the Investigating Officer has not deposed with regard to the exact information furnished by the accused, it is only an irregularity and lapse on the part of the Investigating Officer, that in any manner will not invalidate, vitiate or fatal to the prosecution case.” 82. Therefore, even though in Ex.P.23 the portion of obtaining “so much of such information” leading to discovery has not been got marked by the prosecution and which is not brought attention by the learned Sessions Judge but the fact is proved that at the instance of the appellant/accused the incriminating articles were seized as per panchanams Ex.P.6 and Ex.P.7. For making discovery of fact as per Section 27 of the Evidence Act, after obtaining “so much of such information” from the appellant/accused it always cannot be to the effect that the appellant/accused shall lead to the place of offence where he alleged to have committed the crime. The place of throwing the dead-body is witnessed by many people as discussed above and the place where the dead-body was thrown is not the place where the crime is committed. Crime is committed in other place and after commission of crime of rape and murdering the deceased the dead-body was thrown on the open defecation ground. As per the evidence of PWs. 5 and 6 as above discussed, they have stated that the appellant/accused had taken the girl inside his house prior to the occurrence of crime and after occurrence of crime on the mid night at 11.00 to 11.30 p.m. the appellant/accused was carrying the gunny bag and passing through Panchshahi Darga is witnessed by PW-3 after occurrence of the crime. Therefore, the Investigating Officer had gathered the fact that finding out the dead-body of the deceased on the open defecation ground and then had received the information from these witnesses that the appellant/accused has taken the deceased inside his house is witnessed by PWs. 5 and 6. Therefore, the Investigating Officer had gathered the fact that finding out the dead-body of the deceased on the open defecation ground and then had received the information from these witnesses that the appellant/accused has taken the deceased inside his house is witnessed by PWs. 5 and 6. Therefore, there is no question of the appellant/accused leading to the place of incident because it is already come to know by the Investigating Officer during the course of investigation. Therefore, just because the PW-8 had stated that he went to the house of the appellant/accused and already there were police and appellant/accused was there and therefore there is no leading to the place by the appellant/accused assumes no significance. In the present case upon visualizing the entire case in its true perspective, taking the police and other witnesses to the place of the crime by the appellant/accused assumes no significance because the place of incident is already suspected by the Investigating Officer, as the deceased was taken by the appellant/accused inside his house as per the evidence of PWs. 5 and 6 and which is stated before the police. Therefore, already the place of occurrence is suspected and therefore went to the house of the appellant/accused and in this regard the entire discovery of fact of place of incident as per Section 27 of the Indian Evidence Act to be analysed in practical approach with all its probabilities what might have been transpires at the time of commission of offence and after the commission of offence. Therefore, in this regard, I do not find any merit in the argument canvassed for the appellant/accused. 83. But admittedly the burning place is found inside the house of the appellant/accused. The incriminating articles MOs.2, 3, 4, 7, 8 and 9 were found inside the house of the appellant/accused at a place where the place of burning. This place of burning dead-body is not in any other house. 83. But admittedly the burning place is found inside the house of the appellant/accused. The incriminating articles MOs.2, 3, 4, 7, 8 and 9 were found inside the house of the appellant/accused at a place where the place of burning. This place of burning dead-body is not in any other house. MOs.2, 3 and 4 (Lungi, banyan and two boots) are kept in gunny bag (MO.9) which are recovered from the place where the accused led and handed over to the Investigating Officer which is within the exclusive knowledge to the appellant/accused and these MOs.2, 3 and 4 were worn by the appellant/accused at the time of commission of offence is witnessed by the PW-3 on 21.04.2008 at 11.30 p.m. and identified the same by the PW-3 that they are the same clothes and boots worn by the appellant on 21.04.2008 at 11.30 p.m. Therefore, recovery of these MOs.2, 3 and 4 at the instance of the appellant/accused is relevant and admissible as per Section 27 of the Evidence Act. Therefore, this circumstances strongly pointing guilt towards the appellant/accused, considering the exclusive knowledge of the appellant/accused that he kept his clothes as per MOs.2, 3 and 4 inside a gunny bag and kept in a room which were worn at the time of the commission of the offence. Therefore, in this regard the exclusive knowledge on the part of the appellant/accused where he had kept the banyan, lungi and two boots (MOs.2, 3 and 4) in a gunny bag (MO.9) is within his knowledge and he had taken the same from the room of his house and handed over to PW-23 the Investigating Officer and accordingly a panchanamas were conducted in this regard as per Exs.P.6 and P.7. This incriminating circumstances is put to the appellant/accused during the course of cross-examination under Section 313 of Cr.P.C. but the appellant/accused simply denied this evidence without offering any explanation. Therefore, these circumstances of discovery of fact has conclusively proved the guilt of the appellant/accused and this is one of the important link making full chain of circumstances unerringly pointing guilt towards the appellant/ accused. 84. An object of criminal trial is to search truth involved in the case. In this regard, I place reliance on the decision of the Hon’ble Apex Court in the case of Maria Margarida Sequeira Fernandes and Others vs. Erasmo Jack De Sequeria (Dead) through LRs. 84. An object of criminal trial is to search truth involved in the case. In this regard, I place reliance on the decision of the Hon’ble Apex Court in the case of Maria Margarida Sequeira Fernandes and Others vs. Erasmo Jack De Sequeria (Dead) through LRs. (2012) 5 SCC 370 , wherein at Paras 32 to 44, Their Lordships were pleased to observe as follows: “Truth as guiding star in judicial process: 32. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies. 33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. 34. In Mohanlal Shamji Soni vs. Union of India, 1991 Supp (1) SCC 271, this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. 35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. 36. 35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. 36. In Ritesh Tewari and Another vs. State of U.P. and Others, (2010) 10 SCC 677 , this Court reproduced oft-quoted quotation which reads as under: (SCC p.687 Para 37) “37.....Every trial is voyage of discovery in which truth is the quest.” (Emphasis in original) This Court observed that the “power is to be exercised with an object to sub-serve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth.” 37. Lord Denning, in Jones vs. National Coal Board, (1957) 2 QB 55 , has observed that: (QB p.63) “.......In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries.” 38. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest.” In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law. 39. Lord Denning further observed in the said case of Jones (supra) that: “.....Its all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth.” 40. World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized. 41. xxx xxx xxx 42. xxx xxx xxx 43. World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized. 41. xxx xxx xxx 42. xxx xxx xxx 43. “Satyameva Jayate” (Literally: “Truth Stands Invincible”) is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows: “Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides.” (Emphasis supplied) 44. Malimath Committee on Judicial Reforms heavily relied on the fact that in discovering truth, the judges of all Courts need to play an active role. The Committee observed thus: “2.2......In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt. The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society and gives the benefit of doubt to the accused. It is the parties that determine the scope of dispute and decide largely, autonomously and in a selective manner on the evidence that they decide to present to the court. The trial is oral, continuous and confrontational. The parties use cross-examination of witnesses to undermine the opposing case and to discover information the other side has not brought out. The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the aberrations in the investigation or in the matter of production of evidence before court......” 2.15 The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth....... 2.16.9. Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star of the Criminal Justice System. For justice to be done truth must prevail. It is truth that must protect the innocent and it is truth that must be the basis to punish the guilty. Truth is the very soul of justice. Therefore truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. It is of seminal importance to inject vitality into our system if we have to regain the lost confidence of the people. Concern for and duty to seek truth should not become the limited concern of the courts. It should become the paramount duty of everyone to assist the court in its quest for truth.” 85. Further, the Hon’ble Apex Court in the case of Ambika Prasad and Another vs. State (Delhi Administration), (2000) 2 SCC 646 , was pleased to laid down the principle of law at Para 10 as follows: “10. Further, it is to be borne in mind that criminal trial is meant for doing justice to the accused, victim and the society so that law and order is maintained. Hence, as observed by this court in State of U.P. vs. Anil Singh, AIR 1988 SC 1998 it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. Hence, we would only state that it is unfortunate state of affair that police officers resiled from their own statements and deposed something contrary before the court. Equally, it is unfortunate that investigating officer has not stepped into the witness box without any justifiable ground. Both are public duties which the Judge has to perform. Hence, we would only state that it is unfortunate state of affair that police officers resiled from their own statements and deposed something contrary before the court. Equally, it is unfortunate that investigating officer has not stepped into the witness box without any justifiable ground. But this conduct of the investigating officer or other hostile witnesses cannot be a ground for discarding the evidence of PW-5 and PW-7 whose presence on the spot is established beyond reasonable doubt. They have suffered injuries and their evidence is corroborated by medical evidence. It is also in-conformity with what has been stated in the FIR. In any case, investigating officer is not at all material witness for the purpose of establishing whether accused or the complainant party was the aggressor. Not only that, accused have examined the defence witnesses for establishing their say. Hence, non-examination of the investigating officer cannot be a ground for holding that injured witnesses should not be believed.” Discussion of evidence of other witnesses like Engineer, Police Constable, FSL, PIS, Fir etc. 86. PW-18 is the Engineer, who had prepared spot sketch of the open defecation ground and the place of incident which is the house of the accused as per Ex.P.17. This evidence is found to be formal in nature. 87. PW-17 is the Doctor, who had examined the appellant/accused and he was of the opinion that there is no health issue found on the appellant/accused that he is not able to perform sexual act. Accordingly, he has issued the certificate as per Ex.P.14. 88. PW-19 is the Police Constable who had only stated that he had taken the articles to Forensic Science Laboratory Belgaum. 89. PW-20 is the PSI, who has apprehended the appellant/accused and produced him before the Investigating Officer and he has identified the accused. 90. PW-21 is the CPI who has registered the FIR. 91. PW-13 is the Head Constable, who had handed over the complaint and FIR to the learned Magistrate and to the higher authorities. 92. PW-14 is the Police Constable, who carried the seized articles to the Forensic Science Laboratory at Bengalurur. 93. Upon considering all these witnesses who are formal in nature, they have acted in the course of investigation and they have performed their duty during the investigation. 92. PW-14 is the Police Constable, who carried the seized articles to the Forensic Science Laboratory at Bengalurur. 93. Upon considering all these witnesses who are formal in nature, they have acted in the course of investigation and they have performed their duty during the investigation. By considering these evidences, nothing is revealed that they are telling lie before the court. 94. PW-22 is the Investigating Officer who had conducted the second part of investigation after taking over the investigation from PW-23 and whose role is formal in nature he had recorded the statement of the witnesses and then filed charge-sheet against the appellant/accused. This witness had only stated about the second part of investigation and earlier to him PW-23 had conducted the substantial part of investigating since beginning. Therefore, the evidences of PWs. 22 and 23 are found to be fair investigation, but with minor defects as discussed above. Therefore, upon considering the entire evidences on record as discussed above and considering the important witnesses and also the formal in nature as above stated, the prosecution is able to prove the guilt of the accused beyond reasonable doubt that the accused had committed the offences and it is not by any person. Therefore, the guilt against the appellant/accused is conclusively proved by the prosecution as discussed above. Defective Investigation: 95. Upon analysing the evidences, particularly the evidence of PW-23 the Investigating Officer, some minor lapses are found. When the deceased went for playing along with other children, the Investigating Officer ought to have enquired the said children. PW-23 even though had not stated that the appellant/accused had led to the place of incident, but this is also minor discrepancy. Further in remand report, the Investigating Officer had not mentioned MOs.2, 3, and 4 while submitting the said remand report to the court which is confronted and marked as Ex.D2, but this lapse is minor in nature. 96. Upon considering Ex.P.1-inquest panchanama, it is not written that the dead-body was inside the gunny bag and this lapse is minor in nature and also it is confronted during the course of cross-examination, but whatever the discrepancy occurred in this regard is minor in nature. The PW-23 Investigating Officer had committed some minor lapses while recording the statement of the witnesses i.e. PWs. 2, 4 and 5 but these are all found to be lapse and defects, which are minor in nature. The PW-23 Investigating Officer had committed some minor lapses while recording the statement of the witnesses i.e. PWs. 2, 4 and 5 but these are all found to be lapse and defects, which are minor in nature. Just because the said minor defects it cannot be said that the entire prosecution case is liable to be thrown away. Where the prosecution proves the case beyond reasonable doubt as against the appellant/accused from other evidences, the defects revealed in the course of cross-examination cannot be made ground to reject the prosecution case in toto. In this regard, I place reliance on the decision of the Hon’ble Apex Court in the case of Sukhchain Singh vs. State of Haryana and Others, 2002 SCC (Cri) 961. 97. Further, I place reliance on another decision of the Hon’ble Apex Court in the case of Ambika Prasad and Another vs. State (Delhi Administration), (2000) 2 SCC 646 . 98. In the above cited case, the Hon’ble Apex Court while referring to the earlier decision in Karnel Singh vs. State of M.P. (1995) 5 SCC 518 , held that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be failing into the hands of an erring Investigating Officer. Further the Hon’ble Apex Court in the case of Ram Bihari Yadav vs. State of Bihar, (1998) 4 SCC 517 , wherein at Para 13 was pleased to observe as follows: “In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice.” 99. Therefore, just because there are some defects in the prosecution, unless they go to the very root of the prosecution case cannot be made a ground to reject the prosecution case in toto. If investigation can be said to be tainted one, then it can be said that the investigation is not fair. Therefore, just because there are some defects in the prosecution, unless they go to the very root of the prosecution case cannot be made a ground to reject the prosecution case in toto. If investigation can be said to be tainted one, then it can be said that the investigation is not fair. If the Investigating Officer had made attempt to implicate the appellant/accused falsely, then under these circumstances, the defective investigation can be said to be going to very core of the prosecution case. But, in the present case, there are no such circumstances are revealed and it is not the case of the appellant/accused that the Investigating Officer had falsely fixed the appellant/accused into the case and the Investigating Officer had acted in biased manner. Therefore, when the investigation is found to be occurred in a natural course and there may be some defects occurred but that defects are found to be minor in nature, considering the present case and because of such minor defects, it cannot be said that the investigation is unfair one. Therefore, as per the principles of law laid down by the Hon’ble Apex Court even though due to some lapses the investigation is found to be defective in nature, this do not go to the very core of the prosecution case rendering the prosecution case is unbelievable pointing guilt towards the accused. Even with these defective investigation, the prosecution is able to prove the guilt of the appellant/accused beyond reasonable doubt by other evidences discussed supra. 100. Therefore, it is a principle of law laid down by the Hon’ble Apex Court that the court should not only see that no innocent person is punished, but also see that no guilty person can escape from the punishment. Therefore, it is always dual task on the part of the court to see that no innocent person can be convicted but at the same time no guilty person can be escaped from the clutches of law for receiving punishment. Therefore, by following this principle of law as laid down by the Hon’ble Apex Court and as per the criminal jurisprudence as evolved in our Country, the evidences in this case are analysed and visualized and discussed as above. Therefore, by following this principle of law as laid down by the Hon’ble Apex Court and as per the criminal jurisprudence as evolved in our Country, the evidences in this case are analysed and visualized and discussed as above. Therefore, I am of the opinion that in the present case, all the chain of circumstances are proved to be linking to each other making one full circle and unerringly pointing guilt towards the appellant/accused to show that the appellant/accused himself alone committed the offences as alleged without there being any hypothesis that other person might have committed the alleged offences. Therefore, in this regard all the chain of circumstances are conclusively proved pointing guilt towards the appellant/accused. Conclusion: 101. Therefore, when I traversed the entire evidences on record as put-forth by the prosecution, examination of appellant/accused under Section 313 of Cr.P.C. and applying them on the principle of law laid down by the Hon’ble Apex court and by the Co-ordinate bench of this court above discussed, I am of the opinion that even though the case is based on circumstantial evidence, but all the circumstances as deposed by the witnesses are linking to each other without there being any gap or missing link and proved to be making one full circle and conclusively proved unerringly that the appellant/accused alone and himself is guilty of the alleged offences without there being any hypothesis leading to draw inference to some other person. Therefore, as stated supra, the circumstances involved in the present case constitutes facts in issue as per Section 3 of the Indian Evidence Act and each facts in issue are proved by each of the witnesses as discussed above. Therefore, all the circumstances are proved, making chain of circumstances linking to each other which are as below: (i) The deceased after coming from the school and at evening 5.00 p.m. on 21.04.2008 went to play along with other children but thereafter found missing and the appellant/accused has taken the deceased inside his house at about 6.00 p.m. to 7.00 p.m. by offering biscuit to her which is proved by PWs. 5 and 6. (ii) The deceased girl did not return to the house on 21.04.2008 during evening and therefore her mother (PW-10), grandmother (PW-9) and others have started searching the deceased girl. 5 and 6. (ii) The deceased girl did not return to the house on 21.04.2008 during evening and therefore her mother (PW-10), grandmother (PW-9) and others have started searching the deceased girl. (iii) The appellant/accused was carrying gunny bag (MO.1) on 21.04.2008 at night 11.00 p.m. to 11.30 p.m. coming from his house passing through Panchshahi Darga which is witnessed by PW-3, on the next day morning the dead-body of the deceased which was seen by the witnesses PWs. 5 and 6 while she was playing was found murdered and dead-body was thrown on the open defecation ground and also it is witnessed by many other people and witnesses and the gunny bag (MO.1) which PW-3 had seen on the night 11.00 to 11.30 p.m. on 21.04.2008 was the same gunny bag (MO.1) found wrapping the dead-body of the deceased found early morning on 22.04.2008 which is witnessed by PW-3. Therefore, as per the evidence of PW-3 the gunny bag he has seen on 21.04.2008 at night 11.00 to 11.30 p.m. is the same gunny bag he has seen on the next day morning i.e. on 22.04.2008 in open defecation ground near Panchshahi Darga wrapping the dead-body of the deceased and this factum of finding of dead-body wrapped with the gunny bag (MO.1) is witnessed by many people as discussed above. (iv) It is proved that rape and murder then burning the dead-body of the deceased where all inside the house of the appellant/accused by the appellant/accused. (v) It is proved that discovery of incriminating articles MOs.2, 3, 4, 7, 8 and 9 in the house of the appellant/accused as per the investigation and evidence of PW-8 and PW-23. (vi) The death of the deceased is found to be homicidal death amounting to murder as per the evidence of PW-16 - Doctor. (vii) It is also proved that the deceased was brutally ravished as there was blood found on her private part which is witnessed by the witnesses and also revealed in the post mortem report and by the evidence of Doctor-PW-16. (vii) It is also proved that the deceased was brutally ravished as there was blood found on her private part which is witnessed by the witnesses and also revealed in the post mortem report and by the evidence of Doctor-PW-16. Therefore, all the circumstances as above discussed and also the circumstances narrated at paragraph No. 35 are all proved as against the appellant/accused that the appellant/accused alone and himself has committed the offences as alleged and therefore the prosecution has conclusively established all the facts in issue in the present case and proved the case beyond reasonable doubt that the appellant/accused had committed the offence of rape and murder of the deceased-girl of six years old and then burnt the dead-body in his house. (viii) Therefore, in this regard the conviction recorded by the Sessions Court convicting the appellant/accused for the offence under Section 376, 302 and 201 of IPC is perfectly legal, justifiable and correct one and thus, I am of the opinion that it is liable to be confirmed. Accordingly, I confirmed the judgment of conviction, convicting the appellant/accused for the offences punishable under Sections 376, 302 and 201 of IPC. Ordering Sentence to the appellant/accused: 102. The Sessions Court upon convicting the appellant/accused for the offences punishable under Sections 302, 376 and 201 of IPC, had sentenced as follows: (a) The accused is sentenced to undergo rigorous ‘imprisonment for life’ and to pay a fine of Rs. 10,000/- for the offence punishable under Section 302 of IPC. In default of payment of fine, he shall undergo simple imprisonment for a period of one year. (b) The accused is sentenced to undergo IMPRISONMENT FOR LIFE and to pay a fine of Rs. 10,000/- for the offence punishable under Section 376 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for a period of one year. (c) The accused is sentenced to undergo imprisonment for seven (7) years and to pay a fine of fine of Rs. 5,000/- for the offence punishable under Section 201 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for a period of six (6) months. All the sentences shall run concurrently. 103. The Sessions Court had ordered that all the sentences shall run concurrently. 5,000/- for the offence punishable under Section 201 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for a period of six (6) months. All the sentences shall run concurrently. 103. The Sessions Court had ordered that all the sentences shall run concurrently. Now, I have to discuss the law and principle of law laid down by the Hon’ble Apex Court regarding the sentencing policy. 104. The present case is of heinous crime committed by the appellant/accused of ravishing brutally the girl of 6 years old and murdered the girl in a cold blooded manner and even he did not stop at that stage but burnt the dead-body of the deceased which is grotesque which shows the brutality and cruelty of the mind of the appellant/accused without there being any remorse in his mind, therefore, which shook the conscious of the society. Under these circumstances and having similar facts and circumstances of the case of committing rape on the girl of 10-12 years old and then murdering her, the Hon’ble Apex Court in the case of State of U.P vs. Satish Singh, (2005) 3 SCC 114 , has observed that the accused is deserved capital punishment and accordingly confirmed the death sentence imposed by the Sessions Court. 105. In the above cited case, the Hon’ble Apex Court had affirmed the capital punishment awarded by the Sessions Court. In the cited case 10-12 years old girl was raped and then murdered. After the trial convicting the accused, the Sessions Court had awarded capital punishment, but when this was challenged before the High court the judgment of conviction and order of capital punishment was set aside by the High Court. Then the State had preferred the appeal before the Hon’ble Apex Court. The Hon’ble Apex Court reversed the judgment of High Court and confirmed the conviction as well as the death sentence awarded by the Sessions Court. The present case is also having same facts and circumstances of rape and murder of a minor girl of 6 years old. Therefore, at one pretext, I am of the opinion that why the death sentence should not be awarded to the appellant/accused by exercising the power under Section 482 of Cr.P.C. after hearing the appellant/accused on quantum of sentence to secure the ends of justice as stated in Section 482 of Cr.P.C. by exercising inherent power of this court. Therefore, at one pretext, I am of the opinion that why the death sentence should not be awarded to the appellant/accused by exercising the power under Section 482 of Cr.P.C. after hearing the appellant/accused on quantum of sentence to secure the ends of justice as stated in Section 482 of Cr.P.C. by exercising inherent power of this court. But, upon the very same and similar facts and circumstances involved in the cases where it was of rape-cum-murder of a minor girl, the Hon’ble Apex Court had formed an opinion that this type of offences are not coming under the category of rarest of rare case so as to award capital punishment by following the various judgments of the Hon’ble Apex Court rendered previously and had formed an opinion and laid down the law that for these cases of having committed the offence of rape with murder the sentence of imprisonment for life for each offences shall run “consecutively not concurrently.” It is worthwhile to quote the judgment of the Hon’ble Apex Court in case of Shankar Kisanrao Khade vs. State Maharashtra, (2013) 5 SCC 546 . Their Lordship were pleased to observe the principle of law on the aspect of rarest of rare case and awarding of sentence of death and on the aspect imprisonment for life means undergoing till end of natural life and where two sentences of imprisonment of life are awarded for two offences, then they shall run consecutively but not concurrently and which were discussed in the said judgment from Paras 27 to 39 as under:- “27. Reference to few judgments of this Court where death penalty has been awarded for rape and murder of minor girls and judgments, where it has been commuted may be apposite. Death Penalty Awarded: 28. Nathu Garam vs. State of Uttar Pradesh, (1979) 3 SCC 366 29. Jumman Khan vs. State of Uttar Pradesh, (1991) 1 SCC 752 30. Dhananjoy Chatterjee vs. State of West Bengal, (1994) 2 SCC 220 31. Paras 14 and 15 of the judgment which are extracted below would indicate that this court was more on the crime test, not on the criminal test: [Dhananjoy Chatterjie Case, SCC p.239] “14. In recent years, the rising crime rate-particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. In recent years, the rising crime rate-particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences, in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an over-all view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.” Prima-facie, it is seen that criminal test has not been satisfied, since there was not much discussion on the mitigating circumstances to satisfy the “criminal test.” 32. Laxman Naik vs. State of Orissa, (1994) 3 SCC 381 33. In this case aggravating circumstances, that is “crime test” is seen fully satisfied, but on mitigating circumstances (criminal test), this Court held as follows: [Laxman Naik case (1994) 3 SCC 281, SCC p.393, Paras 26-27] “26. This brings us to the question of sentence to be imposed upon the appellant for the offences for which he has been found guilty by the two Courts below as well as by us discussed above. This brings us to the question of sentence to be imposed upon the appellant for the offences for which he has been found guilty by the two Courts below as well as by us discussed above. In this connection it may be pointed out that this Court in the case of Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580 while discussing the sentencing policy, also laid down norms indicating the area of imposition of death penalty taking into consideration the aggravating and mitigating circumstances of the case and affirmed the view that the sentencing discretion is to be exercised judicially on well recognized principles, after balancing all the aggravating and mitigating circumstances of the crime guided by the Legislative Policy discernible from the provision contained in Sections 253(2) and 354(3) of the Cr.P.C. In other words, the extreme penalty can be inflicted only in gravest cases of the extreme culpability and in making choice of the sentence, in addition to the circumstances of the offender also. Having regard to these principles with regard to the imposition of the extreme penalty it may be noticed that there are absolutely no mitigating circumstances in the present case. On the contrary the facts of the case disclose only aggravating circumstances against the appellant which we have to some extent discussed above and at the risk of repetition shall deal with that again briefly. 27. The hard facts of the present case are that the appellant Laxman is the uncle of the deceased and almost occupied the status and position that of guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant must have believed in his bona-fide also and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the pre-planned unholy designs of the appellant. The victim was totally a helpless child there being no one to protect her in the desert where she was taken by the appellant misusing his confidence to fulfill his just. The victim was totally a helpless child there being no one to protect her in the desert where she was taken by the appellant misusing his confidence to fulfill his just. It appears that the appellant had pre-planned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.” Both the tests “crime test” and “criminal test” it is seen, have been satisfied against the accused for awarding capital punishment. 34. Kamta Tiwari vs. State of M.P. (1996) 6 SCC 250 35. Molai vs. State of M.P. (1999) 9 SCC 581 36. Bantu vs. State of Uttar Pradesh, (2008) 11 SCC 113 37. Shivaji vs. State of Maharashtra, (2008) 15 SCC 269 38. Mohd. Mannan vs. State of Bihar, (2011) 5 SCC 317 39. Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37 .” 106. But in the case in which death penalty was commuted to imprisonment for life, the Hon’ble Apex Court were pleased to observe with reference to the judgment of the Hon’ble Apex Court rendered previously at Paras 40 to 50 as under:- “Cases in which death penalty commuted: 40. Kumudi Lal vs. State of U.P. (1999) 4 SCC 108 41. Raju vs. State of Haryana, (2001) 9 SCC 50 42. Bantu vs. State of M.P. (2001) 9 SCC 615 43. State of Maharashtra vs. Suresh, (2000) 1 SCC 471 44. Amrit Singh vs. State of Punjab, AIR 2007 SC 132 45. Rameshbhai Chandubhai Rathod vs. State of Gujarat, (2011) 2 SCC 764 46. Surendra Pal Shivbalak vs. State of Gujarat, (2005) 3 SCC 127 47. Amit vs. State of Maharashtra, (2003) 8 SCC 93 48. The list of cases mentioned above, wherein this Court had awarded death sentence and cases where this Court had commuted death sentence, is not exhaustive but only illustrative. This bench in Sangeeta and Others vs. State of Haryana, (2013) 2 SCC 452 noticed that the circumstances of the criminal referred to in Bachan Singh (1980) 3 SCC 4270, appeared to have taken a bit of back seat in the sentencing process and held despite Bachan Singh, the “particular crime” continues to play a more important role than the “crime and criminal.” In conclusion, we have said, inter-alia, as follows: “1. The application of aggravating and mitigating circumstances needs a fresh look. The application of aggravating and mitigating circumstances needs a fresh look. This Court has not endorsed that approach in Bachan Singh. In any event, there is little or no uniformity in the application of this approach. [Sangeet Case (2013) 2 SCC 452 , SCC p.477, Para 77] 2. “77.2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.” (SCC p.478, Para 77) 3. “77.3. In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.” (SCC p.478, Para 77) 4. “77.4. The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.” (SCC p.478, Para 77) 49. In Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 and Machhi Singh vs. State of Punjab, (1983) 3 SCC 470 , this Court laid down various principles for awarding sentence [Rajendra Pralhadrao vs. State of Maharashtra, (2012) 4 SCC 37 , SCC pp.47-48, Para 33] “Aggravating Circumstances - (Crime test) (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings. (6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings. (6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody. (8) The murder or the offence was committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Code of Criminal Procedure. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. (10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating Circumstances: (Criminal test) (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused.” 50. In Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra, (2009) 6 SCC 498 , this Court held the nature, motive, and impact of crime, culpability, quality of evidence, socio economic circumstances, impossibility of rehabilitation and some of the factors, the Court may take into consideration while dealing with such cases.” 107. The Hon’ble Apex Court were pleased to observe which crimes attract the category of rarest of rare case and testing the parameter of rarest of rare case and balancing test whether the award of capital punishment or not. Therefore, in the said case where the victim was minor girl of age 11 years was raped and murdered. Under these circumstances at Para 59 Their Lordships were pleased to form an opinion that the extreme sentence of death penalty is not warranted and accordingly awarded sentence of imprisonment for life for each offences proved. Then the Hon’ble Apex Court were pleased to discuss where the death penalty has been converted to imprisonment for life, in several cases of having similar nature of offences as involved in the present case which are from Paras 87 to 105 which are as follows:- “Cases where the death penalty has been converted to imprisonment for life: 87. State of Tamil Nadu vs. Suresh, (1998) 2 SCC 372 88. Nirmal Singh vs. State of Haryana, (1999) 3 SCC 670 89. Kumudi Lal vs. State of Uttar Pradesh, (1999) 4 SCC 108 90. Akhtar vs. State of Uttar Pradesh, (1999) 6 SCC 60 91. State of Maharashtra vs. Suresh, (2000) 1 SCC 471 92. Mohd. Chaman vs. State (NCT of Delhi), (2001) 2 SCC 28 93. Raju vs. State of Haryana, (2001) 9 SCC 50 94. Bantu vs. State of Madhya Pradesh, (2001) 9 SCC 615 95. State of Maharashtra vs. Bharat Fakira Dhiwar, (2002) 1 SCC 622 96. Amit vs. State of Maharashtra, (2003) 8 SCC 93 97. Mohd. Chaman vs. State (NCT of Delhi), (2001) 2 SCC 28 93. Raju vs. State of Haryana, (2001) 9 SCC 50 94. Bantu vs. State of Madhya Pradesh, (2001) 9 SCC 615 95. State of Maharashtra vs. Bharat Fakira Dhiwar, (2002) 1 SCC 622 96. Amit vs. State of Maharashtra, (2003) 8 SCC 93 97. Surendra Pal Shivbalakpal vs. State of Gujarat, (2005) 3 SCC 127 98. State of Maharashtra vs. Mansingh, (2005) 3 SCC 131 99. Rahul vs. State of Maharashtra, (2005) 10 SCC 322 100. Amrit Singh vs. State of Punjab, (2006) 12 SCC 79 101. Bishnu Prasad Sinha vs. State of Assam, (2007) 11 SCC 467 102. Santosh Kumar Singh vs. State, (2010) 9 SCC 747 103. Rameshbhai Chandubhai Rathod vs. State of Gujarat, (2011) 2 SCC 764 104. Haresh Mohandas Rajput vs. State of Maharashtra, (2011) 12 SCC 56 105. Amit vs. State of Uttar Pradesh, (2012) 4 SCC 107 .” 108. Further, the Hon’ble Apex Court was pleased to discuss the cases where the death penalty has been confirmed from paragraphs 107 to 121 as under:- “Cases where the death penalty has been confirmed: 107. Jumman Khan vs. State of Uttar Pradesh, (1991) 1 SCC 752 108 Dhananjoy Chatterjee vs. State of West Bengal, (1994) 2 SCC 220 109. Laxman Naik vs. State of Orissa, (1994) 3 SCC 381 110. Kamta Tiwari vs. State of Madhya Pradesh, (1996) 6 SCC 250 111. Nirmal Singh vs. State of Haryana, (1999) 3 SCC 670 112. Jai Kumar vs. State of Madhya Pradesh, (1999) 5 SCC 1 113. Molai and Another vs. State of M.P. (1999) 9 SCC 581 114. State of Uttar Pradesh vs. Satish, (2005) 3 SCC 114 115. Shivu vs. High Court of Karnataka, (2007) 4 SCC 713 116. Bantu vs. State of Uttar Pradesh, (2008) 11 SCC 113 117. Shivaji vs. State of Maharashtra, (2008) 15 SCC 269 118. Ankush Maruti Shinde vs. State of Maharashtra, (2009) 6 SCC 667 119. B.A. Umesh vs. State of Karnataka, (2011) 3 SCC 85 120. Mohd. Mannan vs. State of Bihar, (2011) 5 SCC 317 121. Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37 .” 109. Shivaji vs. State of Maharashtra, (2008) 15 SCC 269 118. Ankush Maruti Shinde vs. State of Maharashtra, (2009) 6 SCC 667 119. B.A. Umesh vs. State of Karnataka, (2011) 3 SCC 85 120. Mohd. Mannan vs. State of Bihar, (2011) 5 SCC 317 121. Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37 .” 109. Then the Hon’ble Apex Court was pleased to discuss and observe regarding imposition of minimum fixed term sentences in the case where imprisonment for life is awarded instead of death sentence and what would be the meaning of imposition of sentence of “imprisonment for life” which were dealt with at Paras 125 to 137 as under:- “Minimum fixed terms sentences: 125. There have been several cases where life sentence has been awarded by this Court with a minimum fixed term of incarceration. Many of them have been discussed in Swamy Shraddananda vs. State of Karnataka, (2008) 12 SCC 767 and so it is not necessary to refer to them individually. Swamy Shraddananda refers to Aloke Nath Dutta vs. State of West Bengal, (2007) 12 SCC 230 which in turn refers to five different cases. I propose to refer to them at this stage. 126. Subhash Chander vs. Krishan Lal, (2001) 4 SCC 458 127. Shri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296 128. Mohd. Munna vs. Union of India, (2005) 7 SCC 417 129. Jayawant Dattatraya Suryarao vs. State of Maharashtra, (2001) 10 SCC 109 130. The death sentence to the convict in Swamy Shraddananda, (2008) 13 SCC 767 was converted to imprisonment for life with a further direction that he shall not be released till the rest of his life. 131. Sebastian vs. State of Kerala, (2010) 1 SCC 58 132. Ramnaresh vs. State of Chhattisgarh, (2012) 4 SCC 257 133. Neel Kumar vs. State of Haryana, (2012) 5 SCC 766 134. Sandeep vs. State of U.P. (2012) 6 SCC 107 135. Brajendrasingh vs. State of Madhya Pradesh, (2012) 4 SCC 289 136. State of Uttar Pradesh vs. Sanjay Kumar, (2012) 8 SCC 537 137. Gurvail Singh vs. State of Punjab, (2013) 2 SCC 713 .” 110. The Hon’ble Apex Court was pleased to make observations and discussion on the sentencing policy of ‘Consecutive Sentence cases’ which are discussed at Paras 138 to 142:- “Consecutive Sentence cases: 138. Ravindra Trimbak Chouthmal vs. State of Maharashtra, (1996) 4 SCC 148 139. Gurvail Singh vs. State of Punjab, (2013) 2 SCC 713 .” 110. The Hon’ble Apex Court was pleased to make observations and discussion on the sentencing policy of ‘Consecutive Sentence cases’ which are discussed at Paras 138 to 142:- “Consecutive Sentence cases: 138. Ravindra Trimbak Chouthmal vs. State of Maharashtra, (1996) 4 SCC 148 139. Ronny vs. State of Maharashtra, (1998) 3 SCC 625 140. Sandesh vs. State of Maharashtra, (2013) 2 SCC 479 141. Sanaullah Khan vs. State of Bihar, (2013) 3 SCC 52 142. These decisions clearly suggest that this Court has been seriously reconsidering, though not in a systemic manner, awarding life sentence as an alternative to death penalty by applying (though not necessarily mentioning) the “unquestionably foreclosed” formula laid down in Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 .” 111. Then the Hon’ble Apex Court was pleased to discuss the meaning of ‘imprisonment for life’ and by making interpretation of this word “imprisonment for life” which means the imprisonment for the entire life of the convict. The Hon’ble Apex Court at Para 143 has held that, imprisonment for life does not mean that it is only for 14 years or 20 years or any other fixed term of imprisonment. But ‘imprisonment for life’ means the convict shall suffer imprisonment for his entire biological/natural life subject to powers of His Excellency President or His Excellency Governer as per provisions of Constitution of India and at Para 143, Their Lordship were pleased to lay down the principle of law regarding what is meaning of ‘imprisonment for life’ and its interpretation which is as below:- “143 Off and on, the issue has been the interpretation of “life sentence” does it mean imprisonment for only 14 years or 20 years or does it mean for the life of the convict. This doubt has been laid to rest in several cases, more recently in Sangeet where it has been unequivocally laid down that a sentence of imprisonment for life means imprisonment for the rest of the normal life of the convict. The convict is not entitled to any remission in a case of sentence of life imprisonment, as is commonly believed. This doubt has been laid to rest in several cases, more recently in Sangeet where it has been unequivocally laid down that a sentence of imprisonment for life means imprisonment for the rest of the normal life of the convict. The convict is not entitled to any remission in a case of sentence of life imprisonment, as is commonly believed. However, if the convict is sought to be released before the expiry of his life, it can only be by following the procedure laid down in Section 432 of the Code of Criminal Procedure or by the Governor exercising power under Article 161 of the Constitution or by the President exercising power under Article 72 of the Constitution. There is no other method or procedure. Whether the statutory procedure under Section 432 of the Code of Criminal Procedure can be stultified for a period of 20 years or 30 years needs further discussion as observed in Sangeet vs. State of Haryana, (2013) 2 SCC 452 , which did not deal with the constitutional power. This side issue does not arise in the present case also, and is therefore, not being discussed.” 112. Section 53 of the Indian Penal Code stipulates as follows: “53. Punishments - The punishments to which offenders are liable under the provision of this Code are: First - Death. Secondly - Imprisonment for life. Thirdly - [*** *** ***] Fourthly - Imprisonment, which is of two descriptions, namely: (1) Rigorous, that is, with hard labour. (2) Simple: Fifthly - Forfeiture of property. Sixthly - Fine.” 113. The word ‘transportation for life’ is changed and in its place ‘imprisonment for life’ is inserted by way of making Amendment to the IPC by the Act 26 of 1955 with effect from 01.01.1956. Therefore, awarding sentence of ‘imprisonment for life’ is inserted wherever it is stated in the offences committed under the Indian Penal Code. Nowhere in the Indian Penal Code it is stated that punishment of ‘imprisonment for life’ means only for fixed term of 14 or 20 years, but it is misunderstood that ‘imprisonment for life’ means term of 14 years or some other fixed term of years. But, the punishment ‘imprisonment for life’ is not defined in the IPC to say that it is a fixed term of sentence. 114. But, the punishment ‘imprisonment for life’ is not defined in the IPC to say that it is a fixed term of sentence. 114. Section 55 of the IPC stipulates commutation of sentence of imprisonment for life by the appropriate Government for term not exceeding 14 years. Therefore, it is a power vested with the “appropriate Government” as defined under Section 55-A of IPC for commutating such punishment of imprisonment for life into 14 years. Therefore, it does not mean that the imprisonment for life means which is having fixed term of 14 years or 20 years or any other term. In this legal background, the Hon’ble Apex Court in Shankar Kisanrao Khade’s case cited supra at Para 143 was pleased to clarify what is the sentence of ‘imprisonment for life’ which means imprisonment for entire natural or biological life of a convict, subject to exercise of power for commutation by His Excellency Governor or His Excellency President as per the Constitution of India. 115. Now in the present case the Sessions Court has awarded sentence of imprisonment for life for the offences punishable under Sections 203 and 376 of IPC, but ordered that the sentences shall run concurrently. In the above judgment of Hon’ble Apex Court in Shankar Kisanrao Khade’s case cited supra, for the offence of rape with murder, the sentence of imprisonment for life awarded are ordered to run consecutively. Therefore, I am of the view that the sentence of imprisonment for life awarded for the offence punishable under Sections 302 and 376 of IPC shall run consecutively but not concurrently, upon following the principle of law laid down by the Hon’ble Apex Court in Shankar Kisanrao Khade’s case cited supra. I only make an endeavour to clarify the legal position that what is the meaning and interpretation of ‘imprisonment for life’ on the principle of law laid down by the Hon’ble Apex Court. The Sessions Court has already awarded punishment for imprisonment for life for the offences punishable under Sections 302 and 376 of IPC (for each offence) and ordered to run concurrently, but I am of the opinion based on the principle of law laid down by the Hon’ble Apex court stated supra that sentence of imprisonment for life is imprisonment for his entire biological/natural life and shall run consecutively. Therefore, I proceed to pass the following: ORDER: The appeal filed by the appellant/accused is hereby dismissed. The judgment of conviction recorded by the learned Sessions Judge in Sessions Case No. 138/2008 dated 12.12.2011 presided over the Court of II Additional Sessions Judge, Bijapur, convicting the appellant/accused for the offences punishable under Sections 376, 302 and 201 of IPC is hereby confirmed. The order on sentence dated 17.12.2011, directing the appellant/accused to suffer imprisonment for life for the offence punishable under Section 376 of IPC is hereby confirmed. Further, the order on sentence imposed against the appellant/accused to suffer imprisonment for life for the offence punishable under Section 302 of IPC is hereby confirmed. Further, the order on sentence imposed against the appellant/accused to suffer imprisonment for seven (7) years for the offence punishable under Section 201 of IPC is hereby confirmed. It is made clear that on the basis of the principle of law laid down by the Hon’ble Apex Court stated supra, the imprisonment for life for the offence punishable under Section 376 of IPC and another sentence of imprisonment for life imposed for the offence punishable under Section 302 of IPC shall be having meaning of ‘imprisonment for life’ till remainder of his natural life/biological life. Further it is made clear that the sentence of imprisonment for life awarded for each of the offences punishable under Sections 376 and 302 of IPC shall run consecutively, but not concurrently. It is hereby ordered that the appellant/accused shall undergo imprisonment for life for the offence punishable under Section 302 of IPC and imprisonment for life for the offence punishable under Section 376 of IPC consecutively. Accordingly, the order on sentences are hereby modified as per the principle of law laid down by the Hon’ble Apex Court in Shankar Kisanrao Khade’s case cited supra. Dated: 23-12-2020 M.G. UMA, J. 1. This appeal was heard by the Division Bench and having been divided in its opinion, is laid before this court for opinion as provided under Section 392 Cr.P.C. as per the order of Hon’ble the Chief Justice dated 14.10.2020. 2. Dated: 23-12-2020 M.G. UMA, J. 1. This appeal was heard by the Division Bench and having been divided in its opinion, is laid before this court for opinion as provided under Section 392 Cr.P.C. as per the order of Hon’ble the Chief Justice dated 14.10.2020. 2. The appellant-accused has preferred this appeal aggrieved by the impugned judgment of conviction dated 12.12.2011 and order of sentence dated 17.12.2011 passed in SC No. 138 of 2008 on the file of the learned II Additional Sessions Judge, Bijapur (for short ‘the Trial Court’) convicting him for the offences punishable under Sections 376, 302 and 201 of the Indian Penal Code (for short ‘IPC’) and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 10,000/- for the offence punishable under Section 302 of IPC and in default to pay fine, to undergo simple imprisonment for a period of one year, he was sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- and in default to pay fine to undergo simple imprisonment for a period of one year for the offence punishable under Section 376 of IPC and to undergo imprisonment for a period of seven years and to pay fine of Rs. 5,000/- and in default to pay fine, to undergo simple imprisonment for a period of six months for the offence punishable under section 201 of IPC. 3. Brief facts of the case are that, the informant Nazir Ahmed lodged the first information against unknown person on 22.04.2008 with Talikote Police stating that his daughter aged six years was found missing since 5.00 p.m. on the previous day. Even after due search, she could not be found and on the date of lodging of first information, in the morning, he received information that dead-body of a girl in half burnt position is found in the open defecation land belonging to the Municipality, near Panch Shahi Darga. Immediately, the informant along with his wife and other relatives went to the spot and found the dead-body of his daughter with the burn injuries on her face, back and other parts of the body. The dead-body was naked and the hair was burnt partially. The informant suspected that somebody might have caused her death and with an intention to cause disappearance of evidence of committing the crime, burnt the dead-body and thrown it in that place. The dead-body was naked and the hair was burnt partially. The informant suspected that somebody might have caused her death and with an intention to cause disappearance of evidence of committing the crime, burnt the dead-body and thrown it in that place. Therefore, the informant requested the police to register the case and to trace the culprit. 4. On the basis of this information, FIR in Crime No. 49 of 2008 was registered by Talikote Police against unknown person for the offences punishable under Sections 302 and 201 of IPC and the investigation was undertaken. During investigation, it was found that the accused induced the victim girl by offering biscuits and taken her to his house and committed rape on her on 21.04.2008 at about 7.30 p.m. and thereafter, committed the murder by strangulating her neck, as he was afraid that the little girl may disclose about the commission of the offence before her parents and subsequently with an intention to cause disappearance of the evidence of committing the crime, poured kerosene and lit fire to the dead-body. Subsequently, the half burnt dead-body was carried in a gunny bag and thrown in the open defecation land and thereby, committed the above said offences. Accordingly, the Investigating Officer filed the charge-sheet against the accused for the offences punishable as stated above. 5. After filing of the charge-sheet, the learned Magistrate took cognizance of the offence and committed the matter to the learned Sessions Judge, who in turn made over the matter to the Trial Court. The Trial Court secured the presence of the accused who pleaded not guilty for the charges leveled against him and claimed to be tried. 6. The prosecution in order to prove its contention, examined 23 witnesses, got marked 23 documents and identified 9 material objects. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. but has not chosen to lead any evidence in support of his defence. However, he got marked Exs.D1 and D2, in support of his defence during cross-examination of the prosecution witnesses. The Trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt for the above said offences and convicted and sentenced him as stated above. 7. The Trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt for the above said offences and convicted and sentenced him as stated above. 7. Aggrieved by the impugned judgment of conviction and order of sentence passed by the Trial Court, the accused preferred this appeal on various grounds. The appeal was initially heard by the Division Bench of this Court and the learned Judges having divided in their opinion, the same is ordered to be laid before this Court for opinion as provided under Section 392 of Cr.P.C. Hon'ble Mr. Justice B.A. Patil recorded the opinion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt and therefore he is entitled for acquittal. On the other hand, Hon'ble Mr. Justice Hanchate Sanjeev Kumar, recorded his opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt for the above said offences and therefore he is liable to be convicted. It is also opined that the sentence of imprisonment for life for the offences punishable under Sections 376 and 302 IPC is to be explained to have the meaning of imprisonment till remainder of his natural life/biological life. It is also opined that the sentence of imprisonment for life awarded for the above said offences shall run consecutively, but not concurrently. 8. After the matter is placed before this Court, I have heard Sri. Sudheer Kulkarni, learned Counsel for the appellant-accused and Sri. Prakash Yeli, learned Additional State Public Prosecutor for the respondent-State, afresh. 9. Learned Counsel for the appellant relied on the reasonings and the opinion expressed by the Hon'ble Mr. Justice B.A. Patil and prayed for allowing the appeal by acquitting the accused and setting aside the impugned judgment of conviction and order of sentence passed by the Trial Court. 10. Per contra, the learned Additional State Public Prosecutor relying on the reasonings given and the opinion expressed by Hon'ble Mr. Justice Hanchate Sanjeev Kumar, prayed for confirming the judgment of conviction and order of sentence recorded by the Trial Court by dismissing the appeal. 10. Per contra, the learned Additional State Public Prosecutor relying on the reasonings given and the opinion expressed by Hon'ble Mr. Justice Hanchate Sanjeev Kumar, prayed for confirming the judgment of conviction and order of sentence recorded by the Trial Court by dismissing the appeal. Learned Additional State Public Prosecutor, however, fairly submitted that in the absence of an appeal preferred by the State seeking interference in the quantum of sentence imposed by the Trial Court, the imprisonment for life could not have been meant till remainder of natural life/biological life of the accused and also the sentence ordered to be suffered concurrently, could not have been ordered to run consecutively. 11. The learned Additional State Public Prosecutor relied on the following decisions in support of his contentions: (1) Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) 3 SCC 217 (2) Shivappa and Others vs. State of Karnataka, (2008) 11 SCC 337 (3) Murugan vs. State of Tamil Nadu, (2019 4 SCC (Cri) 735 (4) Pattu Rajan vs. State of Tamil Nadu, (2019) 4 SCC 771 (5) Prahlad vs. State of Rajasthan, (2019) 14 SCC 438 (6) State of U.P. vs. Satish, 2005 AIR SCW 905 12. Perused the materials including the Trial Court records, impugned judgment of conviction and order of sentence and the judgments rendered by both the learned Judges, in the light of the rival contentions. 13. It is the contention of the prosecution that the accused had induced the minor girl by promising to offer biscuits and taken her to his house and committed sexual assault and thereafter, strangulated her neck and caused the death. It is further contended that, with an intention to cause disappearance of the evidence of commission of the offence, poured kerosene on the dead-body and lit fire and thereafter, taken the dead-body in a gunny bag and thrown it in the open defecation land near Panch Shahi Darga. It is stated that PW-3 had seen the accused carrying a gunny bag on the date of incident between 11.00 to 12.00 in the night and the witness had identified the said gunny bag carried by the accused as that of the bag in which the dead-body of the deceased said to have found. PW-5 had seen the accused taking the deceased girl to his house at about 7.00 p.m. on the date of incident. PW-5 had seen the accused taking the deceased girl to his house at about 7.00 p.m. on the date of incident. PW-6 the owner of the house in which the accused was residing and where the incident had taken place, had also seen the accused inducing the deceased by offering biscuits and taking her inside his house at about 7.00 p.m. on the date of incident. 14. It is stated that on the basis of the statements of these witnesses who have seen the deceased in the company of the accused on the date of incident, the accused was apprehended and on enquiry, he had given his voluntary statement, offering to take the Investigating Officer to show the scene of offence and also to produce the incriminating materials such as his clothes worn at the time of incident etc. On the basis of this voluntary statement, the accused led the police and the mahazar witnesses to his house and showed the scene of offence, where he had committed sexual assault on the victim and thereafter, caused her death and subsequently burnt her body partially by pouring kerosene and litting fire. He also produced the clothes worn by him during the commission of the offence. It is the further contention of the prosecution that the accused after partially burning the dead-body of the deceased, carried the same in the gunny bag and thrown it in the open defecation land belonging to Municipality, during mid night. The said gunny bag along with the dead-body was noticed by the general public in the morning and informed to the family members. 15. The prosecution is relying on the evidence of PW-1 Neelamma who is the witness to the inquest panchanama marked as Ex.P1. As per this document, the dead-body of the deceased was found with burn injuries on the head, face, hands, abdomen, back and thigh. The blood had oozed from the vagina. 16. PW-2 is the father of the deceased who lodged first information as per Ex.P2. 17. PW-3 is the witness who had seen the accused carrying the gunny bag on 21.04.2008 at about 11.00 p.m. and proceeding towards Darga. This witness identified MOs.1 to 4 and stated that MO1 is the gunny bag carried by the accused. MOs.2 to 4 were worn by him at that time. 18. 17. PW-3 is the witness who had seen the accused carrying the gunny bag on 21.04.2008 at about 11.00 p.m. and proceeding towards Darga. This witness identified MOs.1 to 4 and stated that MO1 is the gunny bag carried by the accused. MOs.2 to 4 were worn by him at that time. 18. PW-4 is the circumstantial witness, but has not supported the case of the prosecution. 19. PW-5 is the witness who is said to have last seen the deceased in the company of the accused on 21.04.2008 at about 7.00 p.m. Initially, this witness has not supported the case of prosecution and has been treated hostile. During cross-examination by the learned Public Prosecutor, witness admitted that on the date of incident, the deceased was playing near Darga, where he was sitting and the accused had taken her to his house. During cross-examination by the learned counsel, the witness stated that he is working as Hamali in the commission agency shop, where the accused is working as a clerk. Witness stated that he informed the fact that he had seen the accused taking the deceased to his house on the date of incident, to PW-2 after about 2 to 3 days and the police have enquired him about ten days after the incident. Witness admitted that on the date of incident, there was a marriage procession near Darga and many persons have gathered there. Witness admitted that on the said date at about 6.00 p.m. he had gone to the bazaar and returned to the house only at 1.00 in the mid night. 20. PW-6 is the owner of the house in which the accused was residing and where the incident is said to have taken place. It is the contention of the prosecution that on 21.04.2008, at about 7.00 p.m. this witness had seen the accused taking the deceased to his house by offering biscuits. Initially, this witness has also not supported the case of the prosecution and he stated that on the next day morning, when he had gone to defecation area, noticed the dead-body of the deceased and on the previous day, her mother was searching for the deceased and the accused had suggested her to announce in the Darga regarding missing of the deceased, in the speaker. He also stated that he had not stated before the police that he had seen the accused inducing the deceased by offering biscuits and taking her to his house. Witness stated that, he came to know that the accused had caused the death of the child but he had not stated so before the police. Therefore, the witness was treated hostile. During cross-examination by the learned Public Prosecutor, witness stated that on 25.04.2008, the accused was brought to his house and from there the accused had taken them to the place where the dead-body of the deceased was found. He identified MOs.1, 5 and 6 and stated that those articles were found near the dead-body. During cross-examination by the learned Counsel for the accused, witness stated that he was also present when the accused suggested to the mother of the deceased to announce in the Masjid regarding missing of her daughter. It was about 8.00 in the evening. But the said information was not announced in the loud speaker. Witness stated that he has not stated either before the police or before the mother of the deceased that he had seen the accused inducing the deceased by offering biscuits and taking her to his house. 21. PW-7 is the mahazar witness to Ex.P5 i.e. the spot mahazar where the dead-body of the deceased was found and Mos.5 to 7 were recovered. Witness stated that when he had gone to the spot, the dead-body was lying and the gunny bag was near by the dead-body. 22. PW-8 is the mahazar witness to the recovery mahazar Ex.P6. Witness stated that the accused has given his voluntary statement as per Ex.P23 and has led the police to his house and showed the spot where he committed sexual assault on the deceased, strangulated her neck and burnt the dead-body by pouring the kerosene and litting the fire. A kerosene can and a match box were shown by the accused which were recovered under the mahazar Ex.P6 and identified the same as MOs.7 and 8. Witness stated that the accused thereafter produced a lungi, banian, boots and a gunny bag which were seized under Ex.P7 and identified the same as MOs.2 to 4 and 9. Witness stated that the accused taken them near Panch Shahi Darga and showed the place where he had thrown the dead-body where Ex.P8 was drawn. 23. Witness stated that the accused thereafter produced a lungi, banian, boots and a gunny bag which were seized under Ex.P7 and identified the same as MOs.2 to 4 and 9. Witness stated that the accused taken them near Panch Shahi Darga and showed the place where he had thrown the dead-body where Ex.P8 was drawn. 23. During cross-examination, witness stated that the door of the house of the accused was locked and the accused himself had opened the door and taken the police and panchas inside. Witness admitted that he had signed all the three panchanamas in the police station. However, denied the suggestion that the accused has not led the police, nor showed the scene of occurrence, nor produced any material objects. 24. PW-9 is the grand mother and PW-10 is the mother of the deceased and both these witnesses have spoken regarding missing of the deceased on the date of incident and finding the dead-body on the next day. 25. PW-11 is an independent witness who deposed that about 3 years back he found the dead-body of a child which was half burnt and lying in the open defecation land near Panch Shahi Darga. Several persons were gathered there and he identified the dead-body as that of the daughter of PW-2. There were injuries near the private part. A pair of chappal and a piece of nighty were also lying nearby. Witness identified these objects as MOs.5 and 6. Witness further stated that about three days thereafter, the police have brought the accused to the spot and the accused stated that he had taken the deceased offering to give biscuits, committed sexual assault and after burning the dead-body thrown at that place. 26. PW-12 is the scribe who wrote the first information Ex.P2. PW-13 is the Head Constable who carried the FIR which is as per Ex.P9 and submitted to the jurisdictional Magistrate. PW-14 is the Police Constable who carried the seized articles and submitted to the Regional Forensic Science Laboratory (for short ‘RFSL’). PW-15 is the Police Constable who carried the dead-body to the hospital for postmortem examination. 27. PW-16 is the Medical officer who conducted postmortem examination and gave report as per Ex.P11 and the final report as per Ex.P12. Witness stated that he found six external injuries viz. PW-15 is the Police Constable who carried the dead-body to the hospital for postmortem examination. 27. PW-16 is the Medical officer who conducted postmortem examination and gave report as per Ex.P11 and the final report as per Ex.P12. Witness stated that he found six external injuries viz. (1) deep burn over left arm measuring 1” above the left elbow joint measuring 2” x 1” (2) fracture of right upper 1/3rd of the left shoulder, (3) superficial burns over the back, posteriorly extending upto lumbar region, (4) fracture of the C2 and C3 cervical bones, (5) lacerated wound measuring 2” x 1” cm, fracture of frontal bone and (6) fracture of left parietal bone. He found fracture of frontal bone and left parital bone. He also found forchettes tear with widening of vaginal opening and contusion over the vaginal wall. He is of the opinion that the death of the deceased was due to coma, as a result of head injuries sustained and recent signs of penetration present in the form of abrasion and contusion in and around geniteria. Witness stated that except the burn injuries, all other injuries were ante-mortem in nature. He collected the vaginal swab to find out the presence of seminal stains and the spermatezonia and sent it for RFSL examination. The RFSL examination report is as per Ex.P13. Witness stated that due to burns, there is possibility of perishing of seminal stains in the vaginal swab. 28. During cross-examination, witness admitted that if a healthy grown up man commits sexual intercourse on a tender aged girl, there is every likelihood of tearing of vaginal parts and heavy bleeding. However, witness denied the suggestion that as there is no tear of vaginal parts or bleeding from vagina, it could be concluded that no intercourse had taken place. Witness stated that as there was burn injuries on the back, he could not find any antemortem injuries and he had not noticed any injuries in the back portion of the body, in the burnt area. 29. PW-17 is the medical officer who examined the accused and gave his opinion as per Ex.P14. Witness stated that he collected the pubic hair, semen and underwear of the accused and sent the same to RFSL examination through the police. Witness identified the RFSL report as per Ex.P15 and stated that as per the report, seminal stains were found in the sample semen. Witness stated that he collected the pubic hair, semen and underwear of the accused and sent the same to RFSL examination through the police. Witness identified the RFSL report as per Ex.P15 and stated that as per the report, seminal stains were found in the sample semen. The underwear and the pubic hair tested negative for its presence. 30. PW-18 is the Junior Engineer, PW-D who drawn the sketch of the spot where the dead-body of the deceased was found as per Ex.P17. PW-19 is the Police Constable who carried some of the seized material objects to RFSL, Belgaum, for examination. PW-20 is the Sub-Inspector of Police who apprehended the accused and submitted the report as per Ex.P18. PW-21 is the Sub Inspector of Police who registered the FIR as per Ex.P9 and handed over the further investigation to Circle Inspector of Police. PW-22 is the Investigating Officer who completed the investigation and filed the charge-sheet against the accused. 31. PW-23 is the Investigating Officer who carried out major portion of the investigation. This witness stated that he recorded the statement of the witnesses, conducted spot and inquest mahazar. Witness stated that after apprehending the accused, recorded his voluntary statement and on the basis of the said statement, the accused has taken him and the panchas to the scene of occurrence, where he had seized the kerosene can and the match box under mahazar Ex.P6. Witness further stated that the accused produced a lungi, a half banian, two black boots and a gunny bag which were seized under the seizure mahazar Ex.P7. Thereafter, the accused taken him to the spot where the dead-body was thrown where he drawn Ex.P8. Witness stated that the voluntary statement of the accused is as per Ex.P23. During cross-examination, witness admitted that he had not mentioned the details of the material objects seized at the instance of the accused, in the remand list i.e. Ex.D2. 32. Ex.P13 is the RFSL report regarding the vaginal swab. It is reported that the presence of seminal stains was negative in the said item. Ex.P21 is the RFSL report relating to MO.2 banian and MO.4 lungi and as per the report, the test for the presence of seminal stains in both these items tested negative. 33. 32. Ex.P13 is the RFSL report regarding the vaginal swab. It is reported that the presence of seminal stains was negative in the said item. Ex.P21 is the RFSL report relating to MO.2 banian and MO.4 lungi and as per the report, the test for the presence of seminal stains in both these items tested negative. 33. Before adverting to analyze the oral and documentary evidence, let me consider the decisions relied on by the learned Additional State Public Prosecutor in support of his contention. 34. In Bharwada Bhoginbhai Hirjibhai (supra), the Hon'ble Apex Court considered the finding of the guilt recorded by the Sessions Court as affirmed by the High Court which has been challenged mainly on the ground of minor discrepancies in the evidence. But the same was not accepted by the Hon'ble Apex Court and it is held that much importance cannot be attached to the minor discrepancies and listed the reasons for the same as under: “(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore, cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends. On the ‘time-sense’ of individuals which varies from person to person. Again, it depends. On the ‘time-sense’ of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up, when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts; get confused regarding sequence of events, or fill up details from imagination on the spur of moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish, or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.” 35. In Shivappa and Others (supra), the Hon'ble Apex Court held that the minor discrepancies or some improvements would not justify rejection of the testimonies of the eye-witnesses, if they are otherwise reliable. It has also held that some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they gave their depositions in court. 36. The Hon'ble Apex Court in Murugan (supra) held in Para 32 as under: “32. A theory of “accused last seen in the company of the deceased” is a strong circumstances against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged.” 37. In Pattu Rajan (supra), the Hon'ble Apex Court observed in Para 63 as under: “63. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on the part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances.” 38. The Hon'ble Apex Court in Prahlad (supra) considered the theory of last seen the accused in the company of the deceased and held that no explanation is forthcoming from the statement of the accused under Section 313 of Cr.P.C. as to when he parted the company of the victim. It is also observed that the silence on the part of the accused in such a matter, wherein he is expected to come out with an explanation, leads to an adverse inference against the accused. 39. The Hon'ble Apex Court in Satish (supra) again considered the evidence under last seen theory and held at Para 23 as under: “The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.” 40. In the light of these settled position of law, let me consider the ocular and documentary evidence relied on by the prosecution to prove its contention. 41. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.” 40. In the light of these settled position of law, let me consider the ocular and documentary evidence relied on by the prosecution to prove its contention. 41. It is the contention of the prosecution that the deceased died a homicidal death. In order to prove this fact, it relies on the inquest mahazar-Ex.P1. As per this document, the dead-body was found lying in the open defecation area belonging to the Municipality on a sack bag and burn injuries were found on several parts of the body and it is stated that the oozed blood was found in the private part. Prima facie, it is felt by panchas that somebody might have caused the death of the child and burnt it, in order to cause disappearance of the evidence of the commission of offence. The prosecution has also relied on the postmortem report- Ex.P11 and the opinion of the doctor about the cause of death which is as per Ex.P12. As per the postmortem report, the burn injuries were found on the dead-body and the said injuries are post mortem in nature. Fracture of right upper 1/3rd of left shoulder, fracture of C2 and C3 bone, fracture of left parietal bone were also found. Deep burns over left arm and above left elbow, superficial burns over the back posteriorly extending upto lumbar region, lacerated wound on the parietal region were also noted. It is stated that charred burn injuries were found over the chest, abdomen and upper and lower limbs, edema of upper thigh left anterior aspect of the lower limbs. The cause of death mentioned in the postmortem report is due to coma, as a result of the head injuries sustained, with recent signs of penetration present in the form of abrasion, contusion in and around geniteria. However, further opinion was kept pending for the microscopic evidence for the presence of spermatezonia. 42. PW-1 is the pancha for inquest panchanama- Ex.P1. PW-2 is the father of the deceased who lodged the first information as per Ex.P2. PW-9 is the grand mother and PW-10 is the mother of the deceased and PW-11 is an independent witness. However, further opinion was kept pending for the microscopic evidence for the presence of spermatezonia. 42. PW-1 is the pancha for inquest panchanama- Ex.P1. PW-2 is the father of the deceased who lodged the first information as per Ex.P2. PW-9 is the grand mother and PW-10 is the mother of the deceased and PW-11 is an independent witness. These witnesses deposed before the court that they saw the dead-body of the deceased in the open area. All these witnesses have categorically stated that the deceased was done to death and the dead-body was found with external injuries. The post mortem report also refers to the fracture measuring 2” x 1” on frontal bone, which is said to be the cause of the death of the deceased. In addition to these materials, the prosecution examined PW-16 who had conducted post mortem examination of the deceased and issued postmortem report. The witness reiterated about the cause of death and stated that except the burn injuries, all other injuries were ante-mortem in nature. The tenor of cross-examination of these witnesses by the learned Counsel for the accused do not suggest anything to dispute homicidal death of the deceased. Even the burn injuries found post-mortem in nature also supports the contention of the prosecution regarding homicidal death of the deceased. Hence it can be safely concluded that the deceased died a homicidal death due to head injuries and multiple fractures noted in the postmortem report. 43. It is the contention of the prosecution that the deceased was subjected to sexual assault before causing her death. To prove this contention, the prosecution has again relies on Ex.P1-inquest mahazar. As per this document, blood had oozed and dried in the private part of the child. As per postmortem report - Ex.P11, minor abrasions were noted in the geniteria. A tear on the left side of labia major and abrasion over the left major measuring 2” x 2” with forchettes tear, widening of vaginal opening and contusion over the vaginal wall were noted. 44. PW-16 deposed before the Court that he had collected vaginal swab and had sent to RFSL for examination. But as per Ex.P13 - RFSL report the vaginal swab tested negative for the presence of seminal stains. He is of the opinion that due to burn injuries, there is possibility of perishing of seminal stains in the vaginal swab. 44. PW-16 deposed before the Court that he had collected vaginal swab and had sent to RFSL for examination. But as per Ex.P13 - RFSL report the vaginal swab tested negative for the presence of seminal stains. He is of the opinion that due to burn injuries, there is possibility of perishing of seminal stains in the vaginal swab. During cross-examination, witness admitted that since there were no burn injuries found on the genital area, there is no possibility of perishing of seminal stains in the vaginal swab. He also admitted that there was no bleeding from vagina. However, he denied the suggestion that in the absence of seminal stains and spermatozonia in the vaginal swab, it cannot be said that there was sexual intercourse. Witness admitted that if a healthy and grown up person commits forcible sexual intercourse on a tender aged girl, there is every likelihood of tear of vaginal parts with heavy bleeding, while denying the suggestion that as there was no tear of vaginal parts or bleeding from the vagina, it has to be concluded that no intercourse was committed on the girl. 45. PW-7 is the doctor who examined the accused and collected samples for sending it to RFSL. Pubic hair, semen and underwear belonging to the accused were collected and sent for RFSL examination. As per Exs.P15 and 16, semen and underwear tested positive for the presence of seminal stains, while pubic hair tested negative. These materials placed before the Court do not prove that the deceased was subjected to sexual assault before causing her death. Even though, in the inquest mahazar Ex.P1, it is stated that the blood had oozed and dried on the private part of the deceased, the same is not supported by the evidence of PW-16 who conducted the postmortem examination. On the other hand, he specifically admitted during cross-examination that there was no bleeding from the vagina. According to this witness, he found only abrasion and contusion in the genital organ. Therefore, no materials are placed before the Court to conclude that there was sexual assault on the deceased, just before causing her death. However, it could be suspected that some such act must have been committed on the child, which resulted in abrasion and contusion in the genital organ. But same is not sufficient to accept the contention of the prosecution in this regard. 46. However, it could be suspected that some such act must have been committed on the child, which resulted in abrasion and contusion in the genital organ. But same is not sufficient to accept the contention of the prosecution in this regard. 46. It is the contention of the prosecution that it is the accused who is the author of the crime. It is stated that the accused induced the deceased and took her to his house and committed sexual assault and caused her death. He poured kerosene on the body and set fire to cause burn injuries and thrown the dead-body in the open defecation area in order to cause disappearance of evidence of the crime. 47. It is contented that PW-3 had seen the accused carrying the gunny bag on his shoulder on the date of incident at about 11.00 and 12.00 in the mid night and going towards Panch Shahi Darga. It is also contended that PWs. 5 and 6 have last seen the accused taking the deceased to his house at about 7.00 p.m. on the said date. Therefore, it is the contention of the prosecution that the deceased was last seen in the company of the accused just before the dead-body of the deceased was found in the open defecation area. But he failed to explain about these incriminating circumstances and also not explained as to when he parted with the company of the deceased. On the basis of these materials the prosecution contends that it is the accused who is the author of the crime. 48. PW-3 in his evidence has stated that his house is situated near Panch Shahi Darga and he sells omelet in the push-cart. On the date of incident at about 11.00 to 12.00 in the midnight, he was returning to his house. He used to park the push-cart near Panch Shahi Darga and accordingly, he parked it near the Darga and was carrying the articles to his house. In the meantime, he had seen the accused carrying the gunny bag on his shoulder and proceeding from Choragasti Oni towards Darga. Witness further stated that on the next day morning at about 7.00 a.m. he had been to defecate in the open area and found the very same gunny bag which he had seen the accused carrying on the previous night. Witness further stated that on the next day morning at about 7.00 a.m. he had been to defecate in the open area and found the very same gunny bag which he had seen the accused carrying on the previous night. Witness also stated that the accused was wearing a lungi, black coat and a pair of black shoes and he identified those articles as Mos.1 to 4. During cross-examination, this witness admitted that it was not possible to identify a person in the night hours. However, he states that while he was clearing the articles on his push-cart and was shifting to his house, he had seen the accused. Witness denied that as he was busy in clearing and carrying the articles to his house, he had not noticed the clothes which the accused was wearing. This witness states that when he saw the gunny bag on the next day morning in the open defecation area, the same was tied and the chappal of the girl was lying nearby. He had not seen anything else at the spot. However, as per inquest mahazar-Ex.P1 and evidence of PW-1, the dead-body was not found in the gunny bag with tied ends. But was lying in the open place. PW-3 stated that even though he had seen the gunny bag, he was not present when the inquest mahazar and the spot mahazar were drawn at the spot. Interestingly, this witness stated during cross-examination that either MO1 or MOs.5 and 6 were not found in the place where the dead-body was lying. When the witness states that it was about 11.00 or 12.00 in the midnight when he had seen the accused carrying the gunny bag and also states that it is difficult to recognize the person during that time, his evidence identifying the accused, along with the gunny bag, wearing the lungi and also the shoes which he identifies before the court appears to be artificial and it is difficult to accept the same. When the witness specifically states that he was busy in collecting the items on his push-cart to carry it to his house, it is strange that he could notice the details of the clothes, gunny bag and even the shoes the accused was said to have wearing at that time. 49. When the witness specifically states that he was busy in collecting the items on his push-cart to carry it to his house, it is strange that he could notice the details of the clothes, gunny bag and even the shoes the accused was said to have wearing at that time. 49. The prosecution relies on the evidence of PW-5 who is said to have seen the deceased in the company of the accused on the date of incident at about 7.00 in the evening. Witness stated that he was sitting near Panch Shahi Darga on the date of incident and thereafter went to the market. On the next day morning, he learnt that the dead-body of the deceased was found in the open defecation area. He had gone there and saw the dead-body and noticed that the deceased had sustained burn injuries. There was bleeding from the private part. Her chappals were also lying there. But this witness has not supported the case of the prosecution initially regarding he seeing the deceased in the company of the accused on the previous evening. Therefore, the witness was treated partially hostile and the learned Public Prosecutor cross-examined him. During cross-examination, witness admitted that on the previous day at about 7 p.m. the deceased was playing near Panch Shahi Darga, where he was sitting and the accused had taken her to his house. On the next day morning, he came to know that the deceased had died and her dead-body was lying in the open defecation area. The learned Public Prosecutor elicited from this witness during cross-examination in detail about the so called confessional statement given by the accused after his apprehension which is totally inadmissible in law and the same is not helpful to the prosecution in any manner. 50. During cross-examination by the learned Counsel for the accused, witness stated that on the previous day at about 6.00 p.m. he had gone to market and had returned to his house only at 1.00 in the midnight. Witness also stated that on the next day at about 5.00 a.m., he had seen the dead-body of the deceased, but he had not informed the same to her family members nor he informed it to the police. About two or three days thereafter, he informed the father of the deceased about the accused taking the deceased to his house. Witness also stated that on the next day at about 5.00 a.m., he had seen the dead-body of the deceased, but he had not informed the same to her family members nor he informed it to the police. About two or three days thereafter, he informed the father of the deceased about the accused taking the deceased to his house. About 10 days thereafter, he had given statement before the police in that regard. Witness admitted during cross-examination that the accused had not stated anything regarding commission of the offence in his presence. 51. If the evidence of this witness is taken into consideration, he is not wholly reliable as he has not supported the prosecution at the initial stage, but later he has admitted the suggestions put to him by the learned Public Prosecutor. He has also admitted regarding the so called extra judicial confession given by the accused before the police, but however, during cross-examination by the learned Counsel for the accused, he stated that he had gone to the market on the previous evening at 6.00 and he had returned only at 01.00 in the mid night and that the accused had not stated anything regarding commission of offence in his presence. Further the witness states that, even though the dead-body of the deceased whom he was knowing was seen near the open defecation area, he never bothered to inform the same to her father or to any other members of his family. On the other hand, he met the father of the deceased after 2 to 3 days and informed that he had seen the deceased in the company of the accused on the date of incident and had given statement before the police about 10 days thereafter. This conduct on the part of the witness makes his evidence hard to believe regarding he seeing the deceased in the company of the accused at the relevant point of time. 52. One more witness relied on by the prosecution is PW-6 who is the owner of the house in which the accused was staying and the incident said to have taken place. This witness has also not supported the case of the prosecution initially. 52. One more witness relied on by the prosecution is PW-6 who is the owner of the house in which the accused was staying and the incident said to have taken place. This witness has also not supported the case of the prosecution initially. However, he stated that on the date of incident, the mother of the deceased was searching for the girl and the accused was also there and suggested to announce in the Darga regarding missing of the child. Witness stated that he had seen the accused taking the deceased to his house by offering to give biscuits, but he had not stated anything before the police that the accused had committed the offence. This witness was treated hostile and the learned Public Prosecutor cross-examined him. During cross-examination, witness admitted that on 25.04.2008, police have brought the accused to his house where the accused was residing and thereafter to the spot where the dead-body was found. The so called confessional statement given by the accused before the police is also re-iterated by the witness regarding commission of offence, which is wholly inadmissible in law. 53. During cross-examination by the learned Counsel for the accused, witness stated that on the date of incident, when the mother of the deceased was searching for her child, he was also with her and the accused was also very much present there. It was about 8.00 p.m. that the accused suggested to the mother of the deceased to announce in the loudspeaker of the Darga regarding missing of the child. Witness stated that from about 4.00 p.m. till 8.00 in the evening, the mother of the deceased was searching for the child, but he has not stated either before her parents or before the police that the accused had taken the child by offering to give biscuits. This conduct on the part of the witness is quite strange and unacceptable. When the mother of the deceased was searching for the girl and when the accused suggested to announce regarding missing of the child in the Darga, nothing prevented the witness to inform the mother about the accused taking the child to his house. Witness stated that even thereafter, he never bothered to inform the parents of the deceased or to the police about the fact that the deceased was taken to the house of the accused by offering biscuits. Witness stated that even thereafter, he never bothered to inform the parents of the deceased or to the police about the fact that the deceased was taken to the house of the accused by offering biscuits. This conduct of the witness is very strange and it is hard to believe. If at all, he had seen the accused taking the deceased to his house by offering biscuits, when the mother of the deceased was searching for her, the natural conduct would be to inform the mother or enquire the accused about the deceased after he had taken her to his house. Therefore, I am of the opinion that the evidence of this witness gives rise to a reasonable suspicion regarding his conduct. 54. The prosecution heavily relies on the voluntary statement said to have given by the accused to the Investigating Officer as per Ex.P23. The entire statement of the accused is marked as Ex.P23. During cross-examination of PWs. 5 and 6, the learned Public Prosecutor elicited regarding the details of the so called voluntary statement given by the accused which is wholly inadmissible in law. But the learned Trial Judge was unfortunately a mute spectator and recorded all such evidence and exhibited the entire statement as per Ex.P.23, which shows that the learned Trial Judge was not attentive either in recording the evidence or in marking the documents. 55. As per Section 27 of the Evidence Act, only such information received from the accused which led to any discovery/recovery may be proved as it will lend some guarantee that the information which was exclusively with in the knowledge of the accused was proved to be true by such discovery/recovery. 56. PW-8 is the mahazar witness to Exs.P6 to P8. However, both Ex.P5 and Ex.P8 are the spot mahazars which are drawn at the spot where the dead-body of the deceased was found. Exs.P6 and 7 are said to be recovery panchanama drawn in the house of the accused after he leading the Investigating Officer to the spot on the basis of the voluntary statement given by him. It is stated that Mos.2 to 4, 7 to 9 were recovered at the instance of the accused from his house. As I have already stated the entire voluntary statement as per Ex.P23 is before the Court. It is stated that Mos.2 to 4, 7 to 9 were recovered at the instance of the accused from his house. As I have already stated the entire voluntary statement as per Ex.P23 is before the Court. Even if the procedural lapses to be ignored, the evidence of this witness goes to show that the accused had led him and the police to his house, where there were kerosene can and match stick (MOs.7 and 8) and the same were seized under Ex.P6. Thereafter, the accused produced the lungi, banian, shoes and a gunny bag which were as per Mos.2 to 4 and 9 and seized under Ex.P7. 57. As per Ex.P6, the accused had led the police and panchas to his house and showed the spot, where he committed sexual assault and caused the death of the deceased and thereafter, set fire to the dead-body by using kerosene and the match stick. A kerosene can and a match stick was found in the house and the same were seized by the Investigating Officer which are as per Mos.7 and 8. It is not the accused who produced these material objects as per this document. Moreover extensive charred burn injuries were found on the dead-body of the deceased as per post mortem report. But strangely no traces of burning the body was found at the scene of occurrence. Except finding the kerosene can and the matchstick in the house of the accused, the Investigating Officer or panchas have not noticed any traces of burning at the spot. It is stated by PW-8 that the house of the accused was under lock and key when the accused led them to his house and the lock was opened by the accused who went inside the house and showed the scene of occurrence. As per postmortem report, charred burn injuries were found on the dead-body of the deceased especially on chest, abdomen, upper and lower limb including upper thigh, left anterior aspect of the lower limbs etc. 58. It is pertinent to note that Ex.P6 the recovery mahazar was drawn on 25.04.2008 and as per the case of the prosecution, the incident had taken place on 22.04.2008. It is the contention of the prosecution that during the period from 23.04.2008 to 25.04.2008, the accused was absconding. 58. It is pertinent to note that Ex.P6 the recovery mahazar was drawn on 25.04.2008 and as per the case of the prosecution, the incident had taken place on 22.04.2008. It is the contention of the prosecution that during the period from 23.04.2008 to 25.04.2008, the accused was absconding. When the accused led the police with panchas to his house, the same was under lock and key. Under such circumstances, naturally there should have been some traces of burning the dead-body inside the house of the accused. Not offering any reasonable explanation by the prosecution for not finding any such traces, is fatal to its contention. 59. As per Ex.P7, the accused produced his lungi, banian, and the shoes which he was wearing at the time of incident and the same were seized under the mahazar. The lungi and banian were sent for RFSL examination and the report is as per Ex.P21. As per this report, no seminal stains were found in these articles and there is no whisper about the presence of contents of kerosene. If at all, the accused was wearing these clothes and committed sexual assault, burnt the dead-body by pouring kerosene and carried the dead-body in the gunny bag on his shoulder, definitely some traces of seminal stains or atleast the presence of kerosene should have been found in these articles. But there are no such materials to connect the accused to the offence in question and there is no reasonable explanation for their absence. 60. In the present case, there are no eye witness to the incident. The prosecution is relying on the circumstantial evidence to prove its contention and the guilt of the accused. The prosecution is mainly relying on the last seen theory as spoken to by PWs. 5 and 6. It also relies on the voluntary statement and corresponding recovery of material objects i.e. kerosene can, match sticks, lungi, banian, shoes of the accused at his instance. It is well settled proposition of law that when the prosecution relies on the circumstantial evidence, it has to prove all such circumstances to form a complete chain of circumstances which un-mistakenly points accusing finger towards the accused. There should not be any other hypothesis on appreciation of the circumstantial evidence relied on by the prosecution. 61. It is well settled proposition of law that when the prosecution relies on the circumstantial evidence, it has to prove all such circumstances to form a complete chain of circumstances which un-mistakenly points accusing finger towards the accused. There should not be any other hypothesis on appreciation of the circumstantial evidence relied on by the prosecution. 61. In this regard, reliance can be placed on the decision in Rukia Begum vs. Sate of Karnataka, AIR 2011 SC 1585 , wherein, the Hon’ble Apex Court discussed at length regarding the appreciation of circumstantial evidence to lead an inference of guilt of the accused and held in Para 10 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.” 62. In view of the above, it is settled that the prosecution is required to prove each and every circumstances relied on by it, so as to form a complete chain of circumstances and it should lead to the only conclusion towards the guilt of the accused, but inconsistent with his innocence. In view of the above, it is settled that the prosecution is required to prove each and every circumstances relied on by it, so as to form a complete chain of circumstances and it should lead to the only conclusion towards the guilt of the accused, but inconsistent with his innocence. In the present case, even though the prosecution is very much relying on the last seen theory and the recovery of incriminating materials at the instance of the accused as material circumstances, no satisfactory evidence is forthcoming to hold that these circumstances are proved to connect the accused to the offences in question. 63. In the present case, even though the prosecution is successful in proving that the deceased died a homicidal death, it is not successful in proving that there was sexual assault on her. Even though the prosecution relied on the evidence of PWs. 5 and 6 to prove that they had seen the deceased in the company of the accused on the date of incident, the above discussions go to show that the same is not helpful to the prosecution. Even the evidence of PW-3 who says that he had seen the accused carrying the gunny bag on the mid night on the date of the incident, is also not acceptable and will not provide any support to the case of the prosecution. 64. The decisions that are relied on by the learned Additional State Public Prosecutor which are referred to above, laid down the proposition of law regarding the deceased seen in the company of the accused immediately before the incident, as the strong circumstance against the accused. The decisions in Murugan, PattuRajan, Prahlad and Satish (supra) re-iterated the well settled proposition of law. But in the present case, since the prosecution failed to prove the said circumstance, reliance cannot be placed on the same. 65. In the other decisions relied on by the learned Additional State Public Prosecutor i.e. Shivappa and Others and Bharwada Bhoginbhai Hirjibhai (supra), the Hon’ble Apex Court re-iterated the proposition of law that minor discrepancies or some improvements in the evidence of the eye-witnesses is to be ignored and much importance cannot be attached to such minor discrepancies. The Hon’ble Apex Court in Bharwada Bhoginbhai Hirjibhai (supra), listed some of the reasons for non attaching importance to the minor discrepancies. The Hon’ble Apex Court in Bharwada Bhoginbhai Hirjibhai (supra), listed some of the reasons for non attaching importance to the minor discrepancies. But in the present case, the discussions held above discloses that the discrepancies found in the evidence of PWs. 3, 5 and 6 are not minor in nature, but they are material discrepancies which goes to the root of the matter. Strong and reasonable suspicion arises about the evidence deposed by these witnesses. Therefore such evidence cannot be relied on to convict the accused. 66. The golden rule of criminal jurisprudence is that the prosecution has to prove the guilt of the accused beyond reasonable doubt and when there are reasonable doubt, it shall enure to the benefit of the accused. Even though, the prosecution is successful in placing some materials against the accused to contend that he is the author of the crime, same are not sufficient to hold that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. Therefore, I am of the opinion that the prosecution is not successful in connecting the accused as the author the of offence in question and as the reasonable doubt expressed above will enure to the benefit of the accused, he is liable to be acquitted. 67. Even though, the learned Trial Judge and learned Justice Sanjeev Kumar Hanchate have pointed out and noted several links to form a complete chain of circumstances in proof of those circumstances by the prosecution, the discussions held above discloses that there is no legal evidence in proof of such circumstances relied on by the prosecution. 68. In view of the discussions held above, I am of the opinion that the impugned judgment of conviction and order of sentence passed by the Trial Court is liable to be set aside and the accused is entitled to be acquitted. 69. The opinion expressed above as per Section 392 of Cr.P.C. be placed before the Division Bench which heard the matter earlier, for pronouncement of judgment as held by this court in B. Subbaiah vs. State of Karnataka, (1992) 1 Kant. L.J. 419 (DB). Dated: 16.01.2021 ORDER: 1. This appeal having been heard by this Division Bench and there was divergent opinion. L.J. 419 (DB). Dated: 16.01.2021 ORDER: 1. This appeal having been heard by this Division Bench and there was divergent opinion. In pursuance of the orders of the Hon’ble Chief Justice dated 14.10.2020, the matter has been placed before the third Judge M.G. Uma, J. After hearing on both sides, on 23.12.2020, the third Judge has given opinion on par with the opinion of B.A. Patil, J. 2. It is observed by the third Judge that as per Section 392 of Cr.P.C. the matter has to be placed before the Division Bench which heard the matter earlier for pronouncement of judgment as held in the case of B. Subbaiah vs. State of Karnataka, (1992) 1 Kant. L.J. 419. Accordingly, as per the orders of the Hon’ble Chief Justice, this day this original Division Bench has been constituted to pronounce the judgment. 3. On perusal of the records and the judgment, the majority of the opinion of two Judges is to allow the appeal by setting aside the judgment and order of conviction and sentence passed by the trial Court. 4. Taking into consideration the above said factual matrix of the case on hand and the majority view, we pass the following: 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.