JUDGMENT Raghvendra Singh Chauhan, C.J. - Aggrieved by the judgment dated 02.01.2015, passed by the Sessions Judge, Haridwar, in Sessions Trial No. 163 of 2014, the appellant, Mohit Kumar alias Sonu, has filed the present appeal before this Court. 2. By the impugned judgment, the appellant was convicted and sentenced as under: Sections Punishment Awarded by the learned Sessions Judge, Haridwar 363 IPC Seven Years imprisonment with fine of Rs. 10,000/-, and to further undergo imprisonment of one year in default thereof. 366 IPC Seven Years imprisonment with fine of Rs. 10,000/-, and to further undergo imprisonment of one year in default thereof. 376 (2) (f) IPC Life imprisonment with fine of Rs. 25,000/-, and to further undergo imprisonment of two years in default thereof. 302 IPC Life imprisonment with fine of Rs. 25,000/-, and to further undergo imprisonment of two years in default thereof. 201 IPC Seven Years imprisonment with fine of Rs. 10,000/-, and to further undergo imprisonment of one year in default thereof. 5 (m)/6 POCSO Act Life imprisonment with fine of Rs. 25,000/-, and to further undergo imprisonment of two years in default thereof. 3. All the aforesaid sentences were directed to run concurrently. 4. Briefly, the facts of the case are that on 24.02.2014, the complainant, Ajay (P.W.1), filed a written complaint before the SHO, Police Station-Kotwali Gangnahar, Roorkee, District-Hariwar, wherein he claimed that last night on 23.02.2014, around 08:00 P.M., his daughter 'x' (in order not to reveal the identity of the minor child) had gone to her grand-mother's house, which is located in Gali No. 12, Rajendra Nagar, Roorkee. She had her dinner at the grand-mother's house. His daughter 'x' is only five years' old. When his daughter did not return to his house, he searched for his daughter in and around the area. Mannu Pratap, a boy, who lives in his neighbourhood, and Laxman both told him that they saw his daughter 'x' going with Mohit alias Sonu, who lives in Azad Nagar. Therefore, the complainant claimed that he suspects that his daughter has been enticed away by Mohit alias Sonu. He further suspects that Mohit alias Sonu is likely to commit an untoward act with her. Thus, he prayed that police should find the whereabouts of his daughter 'x'. 5. Therefore, the complainant claimed that he suspects that his daughter has been enticed away by Mohit alias Sonu. He further suspects that Mohit alias Sonu is likely to commit an untoward act with her. Thus, he prayed that police should find the whereabouts of his daughter 'x'. 5. On the basis of this written report, the police registered an FIR, namely FIR No. 77 of 2014 (Exhibit Ka-2), for offences under Sections 363 and 366-A IPC. During the course of the investigation, the dead-body of the child 'x' was discovered. After arresting the accused, he was charge-sheeted for offences under Sections 363, 366-A, 376 (2) (f), 302, and 201 IPC and for offence under Sections 5 (m) and 6 of the POCSO Act. 6. In order to establish its case, the prosecution examined twelve witnesses, and submitted eighteen documents. In turn, the defense, neither examined any witness, nor submitted any document. 7. After appreciating the evidence produced by the prosecution, the learned Trial Court convicted and sentenced the appellant as mentioned hereinabove. Hence, the present appeal before this Court. 8. Mr. Pooran Singh Rawat, the learned Amicus Curiae, has raised the following contentions before this Court:- Firstly, the case is entirely based on circumstantial evidence. However, the prosecution has failed to establish a complete chain of circumstances in order to prove the guilt of the accused. Secondly, Laxman (PW-5), who is an old man, could not have seen the deceased 'x' accompanying the accused. Therefore, the evidence of last seen is extremely weak. Thirdly, the statement of the accused, recorded under Section 164 Cr.P.C., does not meet the requirement of law. For, the accused was not given sufficient time to reflect upon the issue, whether to confess, or not to confess his alleged crime? The accused was produced in the morning before the learned Magistrate, and his statement under Section 164 Cr.P.C. was recorded at 03:30 P.M. Therefore, the confession made by the accused cannot be accepted as a legally valid confession. Fourthly, the alleged confession is only with regard to murder, and not with regard to rape. Therefore, the appellant could not be convicted for offences under Section 5(m) and Section 6 of the POCSO Act. Fifthly, there is contradiction within the evidence produced by the prosecution with regard to arrest of the accused. Fourthly, the alleged confession is only with regard to murder, and not with regard to rape. Therefore, the appellant could not be convicted for offences under Section 5(m) and Section 6 of the POCSO Act. Fifthly, there is contradiction within the evidence produced by the prosecution with regard to arrest of the accused. On the one hand, the prosecution claims that the accused was arrested at the instance of the complainant. Yet, on the other hand, the police claims that the accused was arrested on an information received from a police informer. Lastly, there is even a confusion with regard to the recovery of the dead-body of the deceased 'x'. On the one hand, the prosecution claims that the dead-body was recovered at the instance of the accused. On the other hand, it claims that the body was recovered at the instance of the complainant, or by the police itself. Since, there are gaping holes in the story of the prosecution, the prosecution has failed to establish its case. Hence, the conviction and sentence of the accused deserves to be set aside by this Court. 9. On the other hand, Mr. J.S. Virk, the learned Deputy Advocate General for the State of Uttarakhand, has raised the following counter-arguments:- Firstly, the prosecution has succeeded in establishing its case against the appellant. Secondly, both, Mannu Pratap (P.W.2) and Laxman (P.W. 5) have categorically stated, in their testimony, that they saw the accused taking the small child 'x' with him. Thus, it is clearly the evidence of the last-seen. Thirdly, despite the evidence of last-seen, the accused has not discharged his burden of explaining as to what happened to the minor child after she was last seen with him? Therefore, his silence also speaks volumes about his guilt. Fourthly, sufficient time was given to the accused before making his confession. According to Sujit Kumar (P.W. 12), on 25.02.2014 he was posted as a Chief Judicial Magistrate, Haridwar. On the production of the accused for recording his confessional statement, the accused was informed that in case he were to make a confession, the same could be used against him as an evidence. Moreover, he had given sufficient time to the accused to reflect on the issue, whether to confess or not to confess. On the production of the accused for recording his confessional statement, the accused was informed that in case he were to make a confession, the same could be used against him as an evidence. Moreover, he had given sufficient time to the accused to reflect on the issue, whether to confess or not to confess. It is only after this witness was convinced that the accused wants to make the confession voluntarily that he had recorded the confession of the accused under Section 164 Cr.P.C. Therefore, according to Mr. J.S. Virk, learned Deputy Advocate General for the State, the confession was absolutely voluntary in its nature. Fifthly, in the confession, the accused has not only admitted committing the murder of the minor child, but also revealed the motive for having committed the murder. Sixthly, even in his statement, given under Section 313 Cr.P.C., the accused has not pleaded that the confession made by him before the learned Chief Judicial Magistrate was under duress. Therefore, the contention, as raised by the learned counsel for the appellant should not be accepted by this Court. Seventhly, the prosecution has also examined Smt. Shashiprabha Tomar (P.W. 11), a Scientist from the Forensic Science Laboratory. She has not only proven the FSL Report (Ex. Ka-19), but has also opined that the blood-soaked brick, the blood-soaked soil, the pant belonging to the accused, all the three objects were smeared with the blood belonging to "a female". She has clearly stated that the blood found on all these three objects did not belong to the accused. Therefore, the blood, belonging to the deceased, a female, was found on the pant belonging of the accused which was recovered from the possession of the accused. Eighthly, although the confession is limited to commission of the murder, but the prosecution has examined Dr. P.K. Singh (P.W.4). Dr. P.K. Singh (P.W.4), in his testimony, not only proves the Post-Mortem Report (Exhibit Ka-5), but also claims that there was bleeding from the private parts of the child. Bleeding from private parts of a child occurs only when the child has been sexually assaulted. Therefore, the prosecution established both the offences of murder, and rape, for which the appellant has been convicted by the learned trial Court. Ninthly, there is no confusion in the evidence of the prosecution with regard to the arrest of the appellant. Bleeding from private parts of a child occurs only when the child has been sexually assaulted. Therefore, the prosecution established both the offences of murder, and rape, for which the appellant has been convicted by the learned trial Court. Ninthly, there is no confusion in the evidence of the prosecution with regard to the arrest of the appellant. Tenthly, S.I. Vidhya Datt Joshi (P.W. 9) has clearly stated that a police informant had informed the police that the accused in the said case was standing near Peepal Wali Gali, and is planning to abscond. It is on this information that the police force went to the said spot. Moreover, the witness clearly states that the complainant pointed out the young-man standing as being Mohit, the offender, and also told the police that it is Mohit, who had taken his daughter 'x' away. Thus, there is no confusion in the evidence produced by the prosecution with regard to the arrest. Lastly, even with regard to the recovery of the dead-body, there is no confusion. For, the dead-body was recovered at the instance of the accused. Therefore, Mr. J.S. Virk, the learned Deputy Advocate General for the State of Uttarakhand, has supported the impugned judgment. 10. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 11. There are certain established principles with regard to the jurisdiction of the High Court while dealing with an acquittal order. In the case of Sampat Babso Kale v. State of Maharashtra, (2019) 4 SCC 739 , the Hon'ble Supreme Court has laid down the principles with regard to the powers of an appellate Court in an appeal against an acquittal order. The Hon'ble Supreme Court observed as under:- 8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 , laid down the following principles: (SCC p. 432, para 42) "42. This Court in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 , laid down the following principles: (SCC p. 432, para 42) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 12. In the case of State of Rajasthan v. Naresh, (2009) 9 SCC 368 , the Hon'ble Supreme Court opined that "an order of acquittal should not be lightly interfered with even if the court believes that there are some evidence pointing out the finger towards the accused". 13. These principles have recently been reiterated by the Hon'ble Supreme Court in the case of Anwar Ali & another v. State of Himachal Pradesh, (2020) 10 SCC 166 . 13. These principles have recently been reiterated by the Hon'ble Supreme Court in the case of Anwar Ali & another v. State of Himachal Pradesh, (2020) 10 SCC 166 . Therefore, these settled principles of criminal jurisprudence would have to be kept in mind while examining the legality or illegality of the impugned judgment. 14. Ajay Kumar (P.W. 1), the father of the deceased, informs the Court, in his examination-in-chief, that on 23.02.2014, his daughter 'x' had left the house around 08:00 P.M. and had gone to her grand-mother's house. He further claims that his elder daughter, Vandana, informed him that his daughter 'x' cannot be found. Therefore, he searched for her here and there. But she could not be located at night. Next day in the morning, Mannu Pratap (P.W.2) and Laxman (P.W.5) initially asked him as to why he was looking so perturbed? When he informed that his younger daughter 'x' was missing, they informed him that they had seen his daughter being taken by Mohit alias Sonu around 08:00 08:30 P.M. the previous night. They saw that the accused was taking her towards Azad Nagar. Having received this information, the complainant decided to lodge a report with the police. According to this witness, he had filed the complaint on 24.08.2014 with the police in the morning. The police told him that in case they find his daughter 'x', they will inform him on phone. On the same day, around 11:00-11:15 AM, he was informed that the accused was arrested, and they have located his daughter 'x' behind the Satyam Hotel. When he reached the spot, he found that the accused was there along with the police. At the instance of the accused, the dead- body of his daughter 'x' was recovered. Also, at the instance of the accused, a piece of brick was recovered, which was taken into possession of the police. The piece of the brick was full of blood. Even the face of the child had blood all-over. Her face had been badly crushed. The Recovery Memo of the brick was signed by him. The police recovered the blood-stained solid and the control soil before him. Moreover, according to this witness, the accused took the police to his house, and brought out a blood-soaked pant. The said pant was equally recovered by the police. Her face had been badly crushed. The Recovery Memo of the brick was signed by him. The police recovered the blood-stained solid and the control soil before him. Moreover, according to this witness, the accused took the police to his house, and brought out a blood-soaked pant. The said pant was equally recovered by the police. When he was asked to identify the blood-stained brick and the blood-stained pant in the open Court, the accused identified the same. 15. Mannu Pratap (P.W.2) informed the Court that on 23.02.2014, around 08:00-08:15 P.M., he was returning after filling his bike with petrol near DAV College. He was going back to his house. When he was crossing Azad Nagar Road, and going towards his house, he saw Ajay's daughter 'x' gong with Mohit towards the Azad Nagar Bridge. Mohit was holding the hands of 'x'. He further informs the Court that he knows Ajay's daughter 'x' because Ajay used to visit his shop in Rajendra Nagar, Parath Market. At times, his daughter 'x' also used to accompany her father. Ajay also used to visit this witness's uncle's tent-shop. At that time also, his daughter would accompany him. Ajay (P.W.1) used to come to his uncle's tent-house because Ajay was a "Halwai" (Sweetmeat Maker), and his uncle's son used to get employment for Ajay. He further informed the Court that Mohit, the accused, used to live in his neighbourhood. When they would play game, Mohit used to join them; Mohit used to mix well with the neighbourhood children. Even this witness has not been shattered in the cross-examination. 16. Laxman (P.W.5) is another witness, who claims to have last seen the deceased with the accused. Laxman (P.W.5) informs the Court that he knows Ajay (P.W.1), as he is a "Halwai" (Sweetmeat Maker). Ajay and his daughter 'x' were his tenants for about a year. He further informs the Court that the incident had taken place five to six months ago. In the night, on 23.02.2014, around 08:00-08:30, he had closed his shop, and had gone to a medical shop to pick-up some medicines. On the way, he saw that the accused was holding the hand of the 'x', and was moving towards house belonging to Parath. On 24th, around 07:30, he informed Ajay about this fact. He further tells the Court that he knows Mohit as Mohit was running a barber-shop in the neighbourhood. On the way, he saw that the accused was holding the hand of the 'x', and was moving towards house belonging to Parath. On 24th, around 07:30, he informed Ajay about this fact. He further tells the Court that he knows Mohit as Mohit was running a barber-shop in the neighbourhood. Thus, even this witness speaks about seeing the deceased on the last occasion with the accused. 17. Of-Course the learned Amicus Curiae has pleaded that, since Laxman (P.W. 5) was an old man, he could not have seen the small child being accompanied by the accused. However, no such suggestion has been placed, and no evidence has been brought on record to prove the fact that Laxman had poor eye-sight. Therefore, the said argument is merely an afterthought. Hence, it is unacceptable. 18. Learned Amicus Curiae has also pleaded that Mannu Pratap (P.W.2) did not inform his family members about the fact that he had seen the accused walking with the deceased at night. However, there is nothing unusual about it. Because it is not expected of a witness to inform his family members about seeing 'x' with Mohit, in the night, as no one had suspected that the girl had gone missing. Even Ajay (P.W.1), the father of the deceased, did not contact and did not meet Mannu Pratap (P.W.2) till the next morning. It is only when Mannu Pratap (P.W.2) saw Ajay (P.W.1) being rather perplexed that he had asked Ajay as to why he was looking so disturbed? It is only when Ajay (P.W.1) told him that his daughter 'x' has gone missing that this witness informed Ajay (P.W.1) that in the previous evening he had seen Mohit, the accused, walking with his daughter. Therefore, the behavior and conduct of this witness is highly natural. Thus, the prosecution has succeeded in proving the fact that the deceased 'x' had gone missing, and on the last occasion, she was seen with the accused. 19. It is, indeed, a settled principle of law that the case of the prosecution has to be first proved de hors the confession. Therefore, the factum of the confession will be considered at the end of this judgment. 20. 19. It is, indeed, a settled principle of law that the case of the prosecution has to be first proved de hors the confession. Therefore, the factum of the confession will be considered at the end of this judgment. 20. The other evidence brought forth by the prosecution is, firstly, that after the accused was arrested, it is at his instance that the dead-body of the child was recovered from amongst the bushes behind the Satyam Hotel. This fact has been established by Ajay (P.W.1), Ram Kumar (P.W.7), and by the police witnesses. 21. Moreover, both, according to Ajay (P.W.1) and Raj Kumar (P.W.7), the blood-soaked piece of brick, the weapon of committing the murder, was also recovered at the instance of the accused. Furthermore, the accused had led the police team to his house. From his house, he had handed-over his blood-stained pant. 22. According to Mrs. Shashiprabha Tomar (P.W.11), she had examined the blood-stained soil, the control soil, and the pant recovered from the accused. She has proven the FSL Report (Ex. Ka-19). According to the FSL Report, not only the blood was detected from the piece of brick, from the blood-stained soil and from the pant belonging to the accused, on all the said objects, the blood was said to be that of a female. Thereby, the said finding eliminates the possibility that the blood could belong to the accused. Obviously, blood was detected on these three objects, and importantly, the pant recovered from the custody of the accused, had female blood on it. 23. According to Dr. P.K. Singh (P.W.4), he had performed the autopsy on the deceased 'x'. He had noticed that there was blood which has oozed out from the private parts of the child. According to him, the bone of the chin of the child was fractured, there was a fracture on the left eye, there was a wound on the left eye, there was another wound on the right eye-brow, the skull had suffered a fracture from middle of the frontal part till the parietal region on the left side. The entire face was covered with blood. There was subdural hematoma. Even the three upper front teeth, and three lower front teeth were broken. According to this witness, the cause of the death was head injury. This witness proves the Post-Mortem Report (Ex. Ka 5). The entire face was covered with blood. There was subdural hematoma. Even the three upper front teeth, and three lower front teeth were broken. According to this witness, the cause of the death was head injury. This witness proves the Post-Mortem Report (Ex. Ka 5). Thus, this witness has clearly established the fact that the deceased had not only died a homicidal death, but prior to her death she was sexually assaulted. All these pieces of evidence, links in a chain, unerringly point towards the guilt of the accused. For, it is the accused who was last seen with the deceased; for, it is the accused who had revealed the whereabouts of the dead-body; for, it is the accused whose pant was stained with "female" blood; for, the Post-Mortem Report (Ex. Ka 5) clearly proves that the deceased had died a homicidal death; for, the Post-Mortem Report (Ex. Ka 5) establishes that the deceased was sexually assaulted. Most importantly, the accused has not discharged his burden under Section 106 of the Evidence Act by explaining to the Court as to what became of the deceased after she was last seen with him. Therefore, his silence also points, as an additional linking evidence, towards his guilt. 24. Besides these cogent and convincing evidence, the prosecution has also examined Sujit Kumar (P.W.12), the learned Chief Judicial Magistrate, before whom the accused had confessed part of his offense. According to Sujit Kumar (P.W.12), he had informed the accused that there is no need for him to confess. In case, he were to make a confessional statement, his statement can be used against him as a piece of evidence. He had given sufficient time to the accused to mull-over, whether to confess or not to confess his crime. It is only after this witness was convinced that the accused was making a voluntary statement, under Section 164 Cr.P.C., that his confession was recorded by this witness. The confession has been produced as Ex. Ka-20. A bare perusal of the confession recorded by Sujit Kumar (P.W.12) clearly reveals that this witness had asked the accused, whether he wanted to voluntarily make a confession? The accused has clearly answered in the affirmative. The accused was further asked, whether he is under pressure from anyone to make confession? He answered this question in the negative. The accused further claims that "he wishes to make his confession voluntarily". The accused has clearly answered in the affirmative. The accused was further asked, whether he is under pressure from anyone to make confession? He answered this question in the negative. The accused further claims that "he wishes to make his confession voluntarily". The accused was further asked, whether sufficient time has been given to him to decide, whether or not to make confession? To this question, the accused has again answered in the affirmative. 25. In his confession, the accused clearly stated that "he had an animosity with the brother of the deceased 'x', whose name was Deepak. For, two months' ago, Deepak had misbehaved with his wife, due to which he had slapped Deepak. On that very day, at night, Deepak had come with fifteen to sixteen boys. They entered his house. This group of fifteen to sixteen boys, along with Deepak, had assaulted both him and his wife because of which they had received serious injuries. It is because of this animosity that day before yesterday, at 08:00 o'clock at night he had enticed away the child on the pretext that he is going to take her out for a walk." He further claimed that "he took her to a vacant spot, and strangulated her by pressing her neck". The note at the bottom of the confessional statement clearly reads that "I have explained to Mohit that he is under no compulsion to make a confessional statement and in case he were to make a confessional statement, it may be used against him as an evidence." The note further reads that "confessional statement is a voluntary one. I have recorded the same. The confessional statement has been read over to the accused Mohit. He has admitted the confessional statement as being true. He has further stated that the confessional statement has been recorded correctly and truthfully." 26. A bare perusal of the confessional statement (Exhibit Ka-20) clearly proves that firstly, it is a voluntary statement made by the accused under Section 164 Cr.P.C. Secondly, the prosecution has clearly established that sufficient time was given by Sujit Kumar (P.W. 12), the learned Chief Judicial Magistrate before recording the confession. Thirdly, even when the accused is confronted with the fact that he had made a confessional statement before Sujit Kumar (P.W.12), in his statement recorded under Section 313 Cr.P.C., the accused has not denied the same. Thirdly, even when the accused is confronted with the fact that he had made a confessional statement before Sujit Kumar (P.W.12), in his statement recorded under Section 313 Cr.P.C., the accused has not denied the same. Furthermore, he has not claimed in his statement recorded under Section 313 Cr.P.C. that he was compelled by the police or anyone else to make the said confession. Hence, the argument raised by the learned Amicus Curiae that the confession is not voluntary one is unacceptable. 27. Although it is true that the confessional statement is limited only to the commission of the murder of the deceased child, but the fact remains that the Post-Mortem Report (Ex. Ka 5), testimony of Dr. P.K. Singh (P.W. 4) and Mrs. Shashiprabha Tomar (P.W.11) clearly establish the fact that prior to killing the child, the child was subjected to sexual assault. For, there was not only swelling, but blood was oozing out from the private parts of the child. Therefore, the learned trial Court was justified in convicting the accused for the aforementioned offences. 28. For the reasons stated above, this Court does not find any merit in the present appeal. The conviction and sentence of the accused for the aforementioned offences is confirmed. The impugned judgment dated dated 02.01.2015 passed by the Sessions Judge, Haridwar in Sessions Trial No. 163 of 2014 is, hereby, affirmed. The appeal is, hereby, dismissed.