JUDGMENT : This appeal is against the judgment and order dated 22.8.2009/24.8.2009 passed by the Additional Sessions Judge, Court No. 1, Budaun in S.T. No. 1151 of 2007, arising out of case crime No. 155 of 2007, P.S. Kadar Chowk, district Budaun, whereby the appellant Sunil Singh has been convicted under Section 377 and 302 IPC and sentenced as follows: 10 years R.I. as well as fine of Rs. 25,000/-, coupled with a default sentence of one year, under Section 377 IPC; and imprisonment for life as well as fine of Rs. 25,000/-, coupled with a default sentence of one year, under Section 302 IPC. Both sentences to run concurrently. INTRODUCTORY FACTS 2. On 28.5.2007 a written report (Ex. Ka-1) was submitted by Raj Kumar (PW-1) at P.S. Kadar Chowk, Budaun, at 11.00 hours, giving rise to Case Crime No. 155 of 2007 in respect whereof GD entry, vide report No. 19 (Ex. Ka-13), and chik FIR (Ex. Ka-12) was prepared by S.I. Jagdish Prasad Verma (PW-6). In the written report it was alleged that in the morning, at about 7 a.m., on 28.5.2007, the appellant Sunil, who is brother of informant's brother's Sadhoo, came to informant's house in a drunken condition. At that time, informant's Bua and informant's son Kamal (the deceased), aged about two years, were present and fritters (Pakaudi) were being cooked. Sunil had fritters and, as usual, took Kamal to play with him. But when he did not return with Kamal, informant, his brothers Krishna Pal and Tussam (PW-2), alongwith other villagers went in search of Kamal and Sunil. While they were searching for Sunil and Kamal, in the sugarcane field of Viram Singh, Sunil was noticed lying over Kamal and committing unnatural offence. When informant and others raised alarm, Sunil left Kamal and escaped. When informant went near Kamal, he found him dead. Alleging that the body is lying in the sugarcane field, the written report was lodged with a prayer to take appropriate action. 3. After registration of the FIR, inquest was conducted by Sri Nivas Yadav (PW-4) and an inquest report (Ex. Ka-2) was prepared. The inquest report was witnessed by Krishna Pal Singh (i.e brother of the informant - not examined), Raj Kumar (the informant- PW-1), Tussam Singh (another brother of the informant - PW-2), Ram Singh (not examined) and Rajveer Singh (not examined). Ka-2) was prepared. The inquest report was witnessed by Krishna Pal Singh (i.e brother of the informant - not examined), Raj Kumar (the informant- PW-1), Tussam Singh (another brother of the informant - PW-2), Ram Singh (not examined) and Rajveer Singh (not examined). As per the inquest report, the inquest was conducted in a sugarcane field and was completed by 13.30 hours on 28.5.2007. 4. The cadaver was sent for autopsy. Autopsy was conducted by Dr. D.V. Shakya (PW-5) on 28.5.2007 at 4.30 p.m.. The autopsy report (Ex. Ka-11) records : Age - about two years. External Examination : Average built body. R.M. passed off from upper limbs present in lower limbs. Eyes closed. Mouth closed. Conjunctivitis both eyes congested. Ante-mortem injuries. (1) An abrasion of size 9 cm x 5 cm on left side face near cheek lateral to angle of mouth. (2) An abraded contusion of size 11 cm x 3 cm present on front and both sides of neck at the level of thyroid cartilage underneath on dissection subcutaneous tissues and muscle found congested. Right side hyoid bone found fractured. Trachea found congested. (3) An abraded contusion of size 7 cm x 5 cm on top of left shoulder. (4) An abrasion of 1 cm x 1.5 cm on exterior aspect of left wrist joint. (5) Multiple abrasions in an area of 15 cm x 10 cm on back of chest both sides. (6) Lacerated wound of size 1 cm x 0.7 cm x muscle deep present on posterior margin of anus with clotted blood. (7) Abrasion of size 4 cm x 2 cm on back of left thigh just below left buttock. Internal examination: Skull: NAD Thorax : Larynx and Trachea (see above). Lungs- congested. Abdomen : Stomach contains 50 gram of semi digested food matter; Small intestine- Chyme and gases; Large intestine- faecal matter and gases. Cause of death : asphyxia as a result of ante mortem injury over neck. Duration after death: About one day. Note : Two glass slides smear prepared by anal swab for pathological examination of dead sperm and handed over to accompanying constable in a sealed condition. One sealed bundle of clothes containing Kachchha (under wear), half shirt, one Kardhani, one Gale Ki Mala, one Gale Ka Dhaga was handed over to constable. 5. During the course of investigation, on 28.5.2007, the investigating officer (PW-4) prepared a site plan (Ex. One sealed bundle of clothes containing Kachchha (under wear), half shirt, one Kardhani, one Gale Ki Mala, one Gale Ka Dhaga was handed over to constable. 5. During the course of investigation, on 28.5.2007, the investigating officer (PW-4) prepared a site plan (Ex. Ka-8) on the instructions of the informant and witnesses. The I.O. disclosed arrest of the appellant on 29.5.2007 and seized the underwear worn by him at the time of arrest of which a seizure memo (Ex. Ka-9) was prepared. The seizure memo indicated that there were semen stains on the underwear. After completing the investigation, the I.O. submitted charge-sheet (Ex. Ka-10) on 9.6.2007. Cognisance was taken on the charge-sheet. The case was committed to the Court of session. The Court of session on 11.2.2008 charged the appellant for offences punishable under Sections 377 and 302 IPC. The appellant pleaded not guilty and claimed trial. PROSECUTION EVIDENCE 6. During the course of trial, the prosecution examined six witnesses. Their testimony, in brief, is as follows : 7. PW-1- Raj Kumar- informant. PW-1 stated that the accused Sunil, present in Court, is younger brother of Sadhoo (wife's sister's husband) of informant's brother; Sunil resided in the same village and being a relative was a regular visitor of informant's house. In respect of the incident, PW-1 stated that on the date of the incident, at about 7 a.m., Sunil came to informant's house. At that time, informant's mother (Maya Devi - PW-3) and Bua (Bhagwati - not examined) were making fritters (Pakaudi); Kamal (the deceased - informant's son), aged about two years, was present and was being fed by informant's mother; Sunil was in a drunken state, he took the deceased in his lap and while playing with him, took him outside the house. When Sunil went out with informant's son, informant was sweeping the floor of his house, near its door. But, when Sunil did not return with informant's son, after about an hour, PW-1, his brothers Tussam (PW-2) and Krishna Pal as well as other members of the village went in search of Kamal and Sunil. During search operation, when they arrived near the southern boundary of Gulzari's field, they noticed from a distance of 20-25 paces that Sunil (the appellant) was lying over informant's son and committing unnatural offence. Seeing the informant and company, Sunil escaped towards west. During search operation, when they arrived near the southern boundary of Gulzari's field, they noticed from a distance of 20-25 paces that Sunil (the appellant) was lying over informant's son and committing unnatural offence. Seeing the informant and company, Sunil escaped towards west. PW-1 stated that informant and others tried to catch Sunil but he ran away. When informant came near Kamal, he was found dead. In respect of the incident written report was given at the police station. PW-1 proved the written report, which was marked Ex. Ka-1. During cross-examination, PW-1 stated that the report was scribed at about 10 a.m.; when the report was scribed, the body of the deceased was in the sugarcane field and was not shifted; that the body was not carried to the police station; that they reached the police station at quarter to 11 and after lodging the report, they returned on a bus but the police arrived at the spot on motorcycle and jeep. The police arrived before they could; and that the police sealed the body at about 11.15 a.m. Whereafter, he did not visit the police station. PW-1 stated that the police had interrogated him in the village at about 11 a.m.. Immediately thereafter, in paragraph 9, PW-1 stated that the body was found in sugarcane field at around 11 a.m., whereas the accused had taken the deceased at about 7 a.m.. PW-1 stated that he has no enmity with the accused; that the accused used to visit PW-1's house on a daily basis and used to play with the child (the deceased); that the house of the accused was 4-5 houses away from the house of the informant; that the accused was already married; that the accused used to visit PW-1's house morning as well as evening; that the accused used to play with PW-1's son and sometimes used to take him away to play with him; sometimes the child used to stay with the accused for 2-4 hours; whereafter he used to return the child. PW-1 stated that, at the time, when the accused took away the victim, PW-1's mother Maya, his aunt Bhagwati and wife Neetu were there in the house. Immediately thereafter, PW-1 clarified that his wife had gone to offer prayers at a temple in front of his house about 10 paces away. PW-1 stated that, at the time, when the accused took away the victim, PW-1's mother Maya, his aunt Bhagwati and wife Neetu were there in the house. Immediately thereafter, PW-1 clarified that his wife had gone to offer prayers at a temple in front of his house about 10 paces away. At this stage, the witness was confronted with an omission in his written report that he was sweeping near the outer door of the house when victim was taken away by the accused. On being confronted with this omission in the written report, PW-1 stated that he had mentioned this fact to the I.O. but if the I.O. had not recorded this in the statement or in the written report, he cannot give a reason for it. On further query, PW-1 stated that the accused had never earlier come in a drunken condition to his house; that was the first day when he had come drunk. PW-1 could notice that the appellant was drunk because of the smell coming from appellant's mouth. PW-1, however, clarified that the accused was not staggering and had fritters that were being cooked in his house. In respect of the time he took to sweep the floor on that day, PW-1 stated that he swept for about 30-45 minutes. When he got free from sweeping the house, he went to his field. In respect of dress worn by the accused at the time when he visited PW-1's house, PW-1 stated that the accused was wearing pant and shirt. In respect of when the search started, PW-1 stated, in paragraph 16 of his deposition, that when PW-1's wife arrived from temple and could not find the victim, search for the victim was made by PW-1. At that time, it must be quarter to 8 (7.45 a.m.). PW-1 stated that first search was made in the village. The field where victim's body was found is about half to ¾ km away from PW-1's house; the field was having sugarcane crop of the height of about one foot. However, the body of the victim was found on the boundary of the field. At that time, alongwith PW-1, his elder brother Tussam Singh (PW-2) and younger brother Krishna Pal (not examined) and other villagers were there. However, the body of the victim was found on the boundary of the field. At that time, alongwith PW-1, his elder brother Tussam Singh (PW-2) and younger brother Krishna Pal (not examined) and other villagers were there. In paragraph 18 of his deposition, PW-1 stated as follows : ^^tc ge cPps dks &#2338awढ jgs Fks rc dey uke ls voktsa yxk jgs Fks tc rd ge yksx [ksr ds ikl igqWaps rc rd eqyfte Hkkx x;k FkkA** After stating as above, PW-1 denied the suggestions - that the accused had not taken the victim; that accused neither committed unnatural offence nor killed the victim; that there had been sour relations between the accused and the informant and therefore he has been falsely implicated. 8. PW-2- Tussam- elder brother of the informant. This witness in his statement in chief supported the prosecution case as narrated by PW-1 and added that though the appellant was married but he had no child; and that his wife was not happy with him (i.e. the appellant) because of his bad habits and, therefore, she (i.e. appellant's wife) was not residing with him. During cross-examination, PW-2, in paragraphs 8, 9 and 10 of his deposition, stated as follows: ^^8- esjh llqjky xksikyiqj esa gS ftl fnu dh ?kVuk gS ml fnu esjh llqjky esa Hkkxor Fkh ml fnu eS o esjk lkढw Hkkxor es x;s gq;s Fks tgkWa jkr ds X;kjg cts eq>s ogkWa bRryk feyh rks eS vkSj esjs lkढw ogkWa ls pys jkr esa jkexaxk uko ls ikj dhA 9- mlds ckn cfYy;k ls vius lkys dh llqjky ls eksVj lkbfdy ekaxh esjk lkyk eq>s o v'kksd tks eqyfte dk lxk HkkbZ gS vkSj esjk lkढw gS dks nsopjk rd NksM+dj x;k tc nsopjk NksM+k ml le; jkr ds nks cts Fks ogkWa ls ge yksx cl ls vk;sA fQj ge yksx cnk;wWa ls VsEiks ls x;sA VsEik ls ge yksx lqcg lkढs+ Ng cts igqWap x;sA fQj ge ?kj igqWaps ml le; cPps dh yk'k bZ[k ds [ksr esa j[kh FkhA reke xkao okys o ?kj okys bdV~Bs FksA 10- Qksu ls ges bRryk feyh Fkh esjh llqjky ls esjk ?kj djhc 82 fdyksehVj nwj gSA** After stating as above, in paragraph 11 of his deposition, PW-2 denied the suggestion that he did not witness any incident. He also denied the suggestion that what he is saying is false. 9. He also denied the suggestion that what he is saying is false. 9. PW-3- Smt. Maya Devi- mother of the informant. PW-3 stated that she is grand mother of the deceased; that on the date of the incident, at about 7 a.m., she was cooking fritters (Pakaudi) when Sunil arrived at her house. At that time, Tussam (PW-2), Tussam's wife and her Nanand (Bhagwati) were present and informant Raj Kumar was sweeping near the door of the house; that Sunil was drunk and his mouth was smelling; he asked for fritters (Pakaudi), ate them and took Kamal in his lap; and took him away. When Sunil did not return, within an hour, a search for Kamal and Sunil was made. Whereafter the body of Kamal was found in a sugarcane field. She stated that her sons Raj Kumar (PW-1), Tussam (PW-3) had seen Sunil committing unnatural offence with the deceased. During cross-examination, PW-3 stated that Sunil was a regular visitor of her house and often use to take Kamal to play with him. Sometimes, he used to play with him for an hour or so and then bring him back. PW-3 stated that when she gave fritters (Pakaudi) to Sunil, Sunil was holding the hand of the child (victim). Child (victim) was also eating fritters (Pakaudi). At that time, it was 7 a.m.. Sometimes, he used to play with him for an hour or so and then bring him back. PW-3 stated that when she gave fritters (Pakaudi) to Sunil, Sunil was holding the hand of the child (victim). Child (victim) was also eating fritters (Pakaudi). At that time, it was 7 a.m.. In paragraph 7 of her deposition, PW-3 stated as follows : ^^7- lquhy ds tkus ds ,d ?kaVs ckn cPps dh ryk'k dh Fkh ryk'k djus dey ds firk o mldk rqLle x;s Fks cPps dh yk'k nksigj ds ckjg cts feyh Fkh ckjg ,d cts yk'k ykdj ?kj ds njokts ij j[k yh FkhA** After stating as above, in paragraph 8, PW-3 stated as follows : ^^8- Fkkus bRryk nsus eSa xbZ Fkh esjs lkFk esjk yM+dk jkt dqekj Hkh Fkkus x;k FkkA nks ढkbZ cts fnu esa iqfyl vk x;h FkhA cPps dh yk'k dks fnu fNius ds djhc iqfyl ys xbZA** On being questioned about the place where she was cooking fritters, in paragraphs 9 and 10, PW-3 stated as follows : ^^9- idkSM+h eS ?kj esa [kqys es lSd jgh FkhA tgkWa eSa idkSM+h lsad jgh Fkh og txg ?kj ds vUnj eq[; njokts ls fd/kj Fkh ;g eq>s irk ughaA 10- idkSM+h lSdus okyh txg ?kj ds eq[; njokts ls nks pkj Ng dne gksxh tgkWa pwYgk ty jgk Fkk og txg [kqyh Fkh eSa idkSM+h Lo;a cuk jgh Fkh eSaus njksxk th dks og txg crk vkSj fn[kk nh Fkh tgkWa eSa idkSM+h cuk jgh FkhA** After stating as above, PW-3 denied the suggestions that Sunil had not arrived at her house; that he had not taken her grand child Kamal; and that she was not in the village but was in her Maika and she came back after receiving information. 10. PW-4 - Sri Nivas Yadav - Investigating Officer. He stated that after registration of the case on 28.5.2007, he took over the investigation of the case, visited the spot, carried out inquest, prepared inquest report and documents for autopsy. He stated that he had sealed the body and handed it over to constable Rajesh Kumar and constable Veerpal Singh for autopsy; that he recorded the statement of witness Tussam Singh, inquest witnesses and thereafter prepared site plan at the behest of the informant and witnesses. He proved the site plan which was marked Ex. Ka-8. He stated that he had sealed the body and handed it over to constable Rajesh Kumar and constable Veerpal Singh for autopsy; that he recorded the statement of witness Tussam Singh, inquest witnesses and thereafter prepared site plan at the behest of the informant and witnesses. He proved the site plan which was marked Ex. Ka-8. He stated that he arrested the accused on 29.5.2007 and seized and sealed the underwear worn by him at the time of arrest in respect whereof seizure memo (Ex. Ka-9) was prepared. He stated that after completing the investigation, he submitted charge-sheet (Ex. Ka-10). During cross-examination, he stated that he left the police station to go to the spot at 11 hours though the time is not mentioned in the case diary. He arrived at the spot at 12.30 hours. The spot was 10-11 kilometer away from the police station. He stated that he arrested the accused on 29.5.2007 from Yatri Shed near Kadar Chowk, Budaun. The arrest was made at about 5.30 a.m.. He stated that he did not enter the time in the case diary when he returned after conducting the investigation on 28.5.2007. He stated that on 29.5.2007 he left the police station at 4.05 hours of which GD entry was made and returned at 6.55 hours. He stated that the underwear of the accused was sealed at the place where he was arrested. He stated that he had not mentioned in the case diary the clothes worn by the accused at the time of his arrest. The semen stains on the under wear were noticed after the accused was requested to remove his trouser. He stated that at the time when underwear was seized, there was no public witness available. He stated that when the appellant was arrested dawn was about to break. The arrest was made near the main road. He stated that he had not handed over copy of the seizure memo to the accused. He denied the suggestion that the accused was lifted from home. He stated that he had not prepared site plan of the place from where the accused was arrested and underwear recovered. In paragraph 13 of his deposition, PW-4 stated that at the spot he did not notice any blood. He denied the suggestion that the accused was lifted from home. He stated that he had not prepared site plan of the place from where the accused was arrested and underwear recovered. In paragraph 13 of his deposition, PW-4 stated that at the spot he did not notice any blood. He also stated that he did not send the underwear for forensic examination till submission of charge-sheet but sent it later though he does not remember the date as the case diary is not with him. He denied the suggestion that the investigation was not conducted in a fair manner. 11. PW-5 - Dr. D.V. Shakya. He proved the autopsy report and the injuries noticed therein, as already noticed by us above. He also specifically stated, in paragraphs 7 and 8 of his deposition, as follows : ^^7- e`rd dh xqnk ls nks LykbZM rS;kj dj lkFk vk;s iqfyl dehZ dks lhYM dj LieZ dh tkap gsrq isFkksyksth Hksth x;hA 8- 'ko foPNsnu ds mijkUr LkkFk vk;s iqfyl dehZ dk iqfyl isij esjs }kjk gLrk{kfjr rFkk ,d lhYM diM+ks dk cUMy ftlesa ,d dPNk o ,d gkQ'kVZ] ,d dj/kuh] ,d xys dh ekyk xys dk /kkxk dqy 5 vnn lqiqnZ fd;s x;sA** In paragraph 10 of his deposition, PW-5 accepted the possibility of death of the victim at 7 a.m. on 28.5.2007 as a result of ante mortem injuries noticed by him. During cross-examination, PW-5, in paragraph 12 of his deposition, stated as follows : ^^12- iksLVekVZe dh QkbZfUMax ds vk/kkj ij e`rd dh ekSr fnukad 27-05-07 dh 'kke dks 4 cts gksuk laHko gSA** 12. PW-6 - S.I. Jagdish Prasad Verma. He is the person who prepared the GD entry of the written report and the chik FIR thereof which was exhibited on the basis of his statement. During cross-examination, PW-6 stated that to lodge the report, alongwith the informant, his brother Krishna Pal had also come to the police station. He stated that the I.O. had left for the spot, as per the GD entry, at 11 hours. The S.H.O. had returned to the police station on that day at 1300 hours. On that day, the I.O. had not deposited any goods at the Maalkhana. He stated that on that day, the I.O. had returned at the Thana in the night at 8.35 hours (8.35 p.m.). He denied the suggestion that the report was ante-timed. The S.H.O. had returned to the police station on that day at 1300 hours. On that day, the I.O. had not deposited any goods at the Maalkhana. He stated that on that day, the I.O. had returned at the Thana in the night at 8.35 hours (8.35 p.m.). He denied the suggestion that the report was ante-timed. Statement of the appellant under Section 313 CrPC 13. The incriminating circumstances appearing in the prosecution evidence were denied by the appellant. He stated that he has been falsely implicated on account of enmity. TRIAL COURT FINDING 14. The trial Court held that from the prosecution evidence it was established that the deceased was taken from home in the morning; that the accused was noticed committing unnatural offence with the deceased; that the autopsy report of the deceased confirms commission of unnatural offence; that the ocular account finds support in the medical evidence and therefore the prosecution was successful in bringing home the charge against the appellant. Consequently, the trial Court convicted the appellant and sentenced him, as above. 15. We have heard Sri Shailendra Pratap Singh for the appellant; Sri Pankaj Saxena, learned AGA, for the State; and have perused the record. Submissions on behalf of the appellant 16. The learned counsel for the appellant submitted that the prosecution evidence does inspire confidence for the following reasons : (i) PW-1, who states that the victim was taken from home at 7 a.m. in his presence, has not made any such statement in the written report and had also not given any such statement to the investigating officer during the course of investigation. In the site plan also his presence at the house, when the deceased was allegedly taken by the appellant, is not disclosed. Therefore, his testimony is not reliable in respect of victim being taken from home by the appellant at 7 a.m.; (ii) In so far as PW-1's testimony that he saw the appellant committing unnatural offence with the deceased in the sugarcane field is concerned, the same appears doubtful. Firstly, because that spot was far away from his house, and, secondly, it is unbelievable that a child two years of age could sustain an onslaught that long. Notably, the child was allegedly taken from home at 7 a.m. and was discovered by about 11 a.m.. Interestingly, the FIR is also lodged at 11 a.m.. Firstly, because that spot was far away from his house, and, secondly, it is unbelievable that a child two years of age could sustain an onslaught that long. Notably, the child was allegedly taken from home at 7 a.m. and was discovered by about 11 a.m.. Interestingly, the FIR is also lodged at 11 a.m.. All of this would suggest that after discovery of body the story was developed on suspicion. Further, PW-1 states that he was with his brother Tussam (PW-2) and Krishna Pal when he noticed the accused lying over the child and committing unnatural offence. Tussam (PW-2) in his testimony, during cross-examination, stated that he was attending Bhagwat at his Sasural and on receipt of information about the incident, he came and saw the body of the deceased in the field. The testimony of PW-2 therefore runs contrary to that of PW-1. The other witness Krishna Pal has not been examined. Further, from the testimony of PW-1 it is clear that by the time he arrived at the spot, the accused had escaped more so because they were searching by loudly calling the name of the victim. The mode of search would, for sure, alert the accused to effect his escape from the scene well in advance. Thus, the testimony of PW-1 is not wholly reliable and cannot on its own form the basis of conviction. (iii) The testimony of PW-2 demolishes the prosecution case as it not only contradicts the statement of PW-1 with regard to PW-2 accompanying PW-1 to the spot and witnessing the accused committing the crime but also probabilizes the occurrence of the incident on previous day evening i.e. evening of 27.5.2007, which is in sync with the autopsy report and the statement of the autopsy surgeon (PW-5) made during cross-examination; (iv) The testimony of PW-3 to the effect that deceased was taken by appellant from home does not inspire confidence because her presence at home is neither disclosed in the written report nor in the site plan. She also could not convincingly answer the question as to where she was cooking fritters when, allegedly, the victim was taken by the appellant while she was making fritters. She also could not convincingly answer the question as to where she was cooking fritters when, allegedly, the victim was taken by the appellant while she was making fritters. In fact, she goes on to shatter the prosecution case by stating that after the body of the deceased was found, the same was brought to the house, between 12.00 to 13.00 hours, and kept at the door of the house when, otherwise, the prosecution case is that the inquest was conducted at the spot in the field and, as per the inquest report, the body was sealed at 13.30 hours. All of this would suggest that either PW-3 was not a witness or that the case was developed after discovery of the body. The testimony of PW-3 is therefore not at all reliable; (v) Prosecution has suppressed an important witness i.e. informant's Bua (Bhagwati), whose presence alone was shown in the house both in the written report (Ex-Ka-1) as well as the site plan (Ex. Ka-8) yet, she has not been examined. (vi) The ocular account appears in conflict with the medical evidence, inasmuch as, according to the prosecution case, the deceased was taken from home at 7 a.m. on 28.5.2007, whereas, the autopsy report which was prepared on 28.5.2007 at 4.30 p.m. estimates occurrence of death a day before and the Autopsy Surgeon, during cross-examination, accepted the possibility of occurrence of death in the evening of 27.5.2007 at about 4.30 p.m.. 17. The learned counsel for the appellant submitted that this is a case where the appellant was a regular visitor of the house of the informant. He was admittedly pally with the child (i.e. the deceased) and used to play with him. The deceased went missing and therefore suspicion fell on the appellant. On the basis of this suspicion, the prosecution story was developed. If there had been any truth in the prosecution story, the anal swab slides, clothes of the deceased and the underwear of the appellant would have been sent for forensic examination in the true spirit of the provisions of Section 53-A of the Code of Criminal Procedure. Admittedly, the doctor had taken the anal swab slides and had handed it over to the police personnel for forensic examination. The clothes of the deceased were also sealed and handed over to the police but they were not sent for forensic examination. Admittedly, the doctor had taken the anal swab slides and had handed it over to the police personnel for forensic examination. The clothes of the deceased were also sealed and handed over to the police but they were not sent for forensic examination. The prosecution is, therefore, guilty of suppressing the best evidence. Not only forensic evidence was absent but even the witnesses of fact, namely, Krishna Pal (alleged eye-witness present with PW-1) and Bhagwati (whose presence alone was shown in the house, both in the written report and in the site plan), have not been produced. Under these circumstances, there is a ring of doubt encircling the prosecution case entitling the appellant to its benefit. Learned counsel for the appellant therefore submits that the appeal be allowed and the judgment and order of the trial Court be set aside. Submissions on behalf of the State 18. Per contra, learned AGA, submits that the accused could not demonstrate that the informant side had any animosity with the accused. Further, the presence of the prosecution witnesses of fact is natural in their house. In these circumstances, there was no good reason for the prosecution witnesses to lie. The prosecution story is straightforward which is that the accused was a regular visitor of the house and used to play with the child. On the date of the incident, he was drunk, he took the child and when a search for the child was made, his body was found and the accused was found lying over the body of the child and seeing the informant and the witnesses, he escaped. The autopsy report clearly disclosed that the victim was subjected to anal intercourse. The medical evidence corroborates the ocular account to that extent. In so far as the estimate in respect of time of death disclosed in the autopsy report is concerned, it is well-settled that that estimate cannot overrule a reliable ocular account. Moreover that estimate is on the basis of rigor mortis which in case of a child sets early and passes off early, therefore it cannot be taken as a ground to discard the ocular account. Learned AGA also submitted that the testimony of PW-2 cannot be utilised to discredit the testimony of PW-1, inasmuch as, PW-2 is related to the accused and therefore, his testimony may have deliberately come to rescue the accused. Learned AGA also submitted that the testimony of PW-2 cannot be utilised to discredit the testimony of PW-1, inasmuch as, PW-2 is related to the accused and therefore, his testimony may have deliberately come to rescue the accused. Similarly, the testimony of PW-3 that the body was brought to the door of her house cannot be utilised to demolish the testimony of PW-1, inasmuch as, PW-3 might have got confused. Learned AGA also submitted that assuming that there was no forensic examination/DNA profiling of the anal swab smear slides/clothes collected/recovered from the body of the deceased and the underwear or other body fluid collected from the accused, but that, by itself, would not make the prosecution story doubtful or unacceptable, particularly, when the same finds support from other evidences on record. 19. Learned AGA also submitted that even if the name of PW-1 and PW-3 is not mentioned in the written report as person present in the house when the deceased was taken from home, their testimony cannot be disbelieved as their presence in their own home is natural and therefore, in ordinary course, they would have witnessed the deceased being taken from home by the accused. Learned AGA submits that this is a case where the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt therefore the conviction and sentence recorded by the trial Court deserves to be sustained and the appeal is liable to be dismissed. ANALYSIS 20. Having noticed the rival submissions and the entire prosecution evidence, before we proceed to evaluate the evidence we must bear in mind the well-settled legal principle that is to be applied while appreciating evidence concerning brutal/heinous crimes. The principle is that fouler the crime stricter the proof (vide S.D. Soni v. State of Gujarat, 1992 Supp (1) SCC 567; Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 ). Further, different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions (vide Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCC 35 , para 33). Further, different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions (vide Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCC 35 , para 33). On scanning the prosecution evidence of the instant case it is noticed that there is no serious challenge to the prosecution testimony that the appellant was a regular visitor of informant's house and was very pally with the child (i.e. the deceased). He used to play with the child for hours and sometimes used take the child with him and after playing with him for hours used to return him back. Notably, the appellant resided in the same village few houses away. In this backdrop any untoward incident of the kind noticed in this case would naturally trigger a suspicion on the appellant putting him under the scanner. But, howsoever strong suspicion might be it cannot partake the character of proof. Thus, it would not be appropriate on our part to give undue weightage to the circumstance, as canvassed by the learned AGA, that since there is no proven enmity between the appellant and the complainant party, why would they falsely implicate the appellant. Rather, it would be appropriate on our part to evaluate the prosecution evidence to determine whether it succeeds in proving the guilt of the appellant beyond reasonable doubt. 21. In a recent decision of the Supreme Court, dated July 14, 2022, in Criminal Appeal No. 739 of 2017 of 2017 : Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 SCC OnLine SC 883, in paragraph 27 of the judgment, judicially evolved principles for appreciation of ocular evidence were summarised. As to what ought to be the approach of the Court while appreciating the evidence, in sub para (I) of para 27, it was observed: ''I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. As to what ought to be the approach of the Court while appreciating the evidence, in sub para (I) of para 27, it was observed: ''I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.'' After enumerating several principles, the key principle to be borne in mind while assessing the value of the evidence of an eye-witness was laid down, in paragraph 28 of the judgment (supra), as follows: ''28. To put it simply, in assessing the value of the evidence of the eye-witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. 22. In the instant case, apart from the medical evidence, the prosecution evidence can be divided into two parts. The first is with regard to a circumstance, which is, that the appellant took away the child from home in the morning at 7.00 a.m. on 28.5.2007 and the second is, the ocular account with regard to witnessing the appellant committing unnatural offence in the field. In respect of the circumstance i.e. child being taken from home, key witnesses are PW-1 and PW-3 whereas, in respect of ocular account of the crime the witnesses are PW-1 and PW-2. Before we proceed to deeply evaluate their testimony on the above two aspects, it would be worthwhile to notice the key features in the prosecution evidence. In respect of the circumstance i.e. child being taken from home, key witnesses are PW-1 and PW-3 whereas, in respect of ocular account of the crime the witnesses are PW-1 and PW-2. Before we proceed to deeply evaluate their testimony on the above two aspects, it would be worthwhile to notice the key features in the prosecution evidence. These are : (a) In the written report (Ex. Ka-1), PW-1 had disclosed the presence of his aunt (Bua) at the time when the deceased was taken from home by the accused. The written report does not disclose the presence of any other person in the house when the deceased was taken from home by the accused. Similarly, the site plan (Ex. Ka-8) prepared at the instance of PW-1 and the other witnesses discloses only the presence of PW-1's aunt in the house; (b) The statement of PW-1, during the course of trial, that he was sweeping at the door of his house when the appellant took away the deceased from home is made for the first time in Court. The written report as well as the statement of the informant during the course of investigation omits to mention that fact. PW-1 was confronted with this omission; (c) According to PW-1, in paragraph 16 of his deposition, search for the child started, upon his wife's return from temple within 45 minutes to one hour of the appellant walking away with the child; (d) The eye-witness account with regard to the accused-appellant being noticed committing unnatural offence in the sugarcane field is rendered by PW-1 only, because PW-2, who is stated to have accompanied PW-1 to the spot, backs out during cross-examination and claims that he arrived from his Sasural on getting information about the incident. PW-2 has not been declared hostile by the prosecution to enable a cross-examination by the prosecution; (e) The presence of PW-3 at the place from where the deceased was taken away by the appellant is neither disclosed in the written report (Ex. Ka-1) nor in the site plan (Ex. Ka-8). Rather, a suggestion is made to her that she was at her Maika. Though, PW-3 denied the suggestion but when closely cross-examined as to the place where she was making fritters (Pakaudi), PW-3 falters. Ka-1) nor in the site plan (Ex. Ka-8). Rather, a suggestion is made to her that she was at her Maika. Though, PW-3 denied the suggestion but when closely cross-examined as to the place where she was making fritters (Pakaudi), PW-3 falters. Not only that, PW-3 makes a statement which runs contrary to the prosecution case, which is, that the body of the deceased after being found in the field was brought at the door of her house between 12.00 and 13.00 hours when, according to the prosecution, the body was left at the spot and was sealed at 13.30 hours; (f) The autopsy report as regards the duration of time since death estimates death a day before i.e. on 27.5.2007. Though it might not be conclusive but throws a possibility of death to have occurred much before the time when the deceased was taken from home. This possibility gets corroboration from the testimony of PW-2 which discloses that information about the incident was received in the evening of the preceding day and upon receipt of the information, PW-2 came back from his Sasural and on reaching the village he noticed the body in a sugarcane field; (g) There is no forensic report in respect of anal swab smear slides, the clothes recovered from the deceased and the underwear recovered from the appellant even though the incident is of a date post the insertion of Section 53-A in the Criminal Procedure Code, 1973. 23. When we analyse the prosecution evidence in the backdrop of the key features noticed above, the witness whose presence in the house was mentioned in the FIR when the child was allegedly taken away by the appellant at 7 a.m. has not been examined. In the written report, the presence of informant's aunt (Bua), whose name has later been disclosed as Bhagwati, is shown at the place from where the deceased was taken by the appellant. Unfortunately, Bhagwati has not been examined. Rather, Maya Devi, whose name is not disclosed in the written report as being present in the house when the deceased was taken from home, has been examined as PW-3. We are conscious of the law that absence of disclosure in the FIR about presence of a witness is not by itself a ground to reject his/her testimony if his/her presence is otherwise natural. We are conscious of the law that absence of disclosure in the FIR about presence of a witness is not by itself a ground to reject his/her testimony if his/her presence is otherwise natural. But here PW-3 has been given a suggestion that she was at her Maika on that day and that she returned after receiving information. PW-3 though states that she was cooking fritters (Pakaudi) and had served fritters (Pakaudi) not only to the deceased but also to the appellant and the deceased was in the lap of the appellant at that time but when she was closely cross-examined with regard to the place where she was making those fritters, PW-3 faltered. Otherwise also, having a child on one's lap by itself is not incriminating but walking away with the child out of the house is certainly incriminating. Therefore, whether PW-3 could notice the appellant walking away with the child is important and it would depend on where she was cooking fritters. Ordinarily, one cooks in the kitchen. At what place the kitchen was located has not come in the evidence. But to show her presence near the gate of the house, PW-3 states in paragraph 10 of her deposition that the place where she was cooking was an open place two/four/six paces away from the main gate, which she had shown to the investigating officer. Interestingly, in the site plan (Ex. Ka-8) prepared by the I.O. on the statement of witness the place where fritters were being cooked has not been disclosed rather spot B is the spot from where the aunt (Bua) of the informant spotted the appellant taking the child. Surprisingly, Bua (aunt) of the informant, namely, Bhagwati, has not been examined. The statement of PW-3 that she was cooking in the open appears a deliberate attempt on her part to show her presence near the outer gate of the house. This part of her statement appears highly unnatural and, therefore, bearing in mind that her presence is neither disclosed in the FIR nor in the site plan, her testimony that she saw the child being taken out of the house by the appellant does not inspire our confidence. 24. This part of her statement appears highly unnatural and, therefore, bearing in mind that her presence is neither disclosed in the FIR nor in the site plan, her testimony that she saw the child being taken out of the house by the appellant does not inspire our confidence. 24. In so far as the testimony of PW-1 in respect of noticing the appellant walking away with the child is concerned, PW-1 though is the informant but neither in the written report nor in his statement under Section 161 CrPC, he disclosed his presence in the house. He only disclosed the presence of his aunt (Bua) and the child in the written report. Interestingly, the site plan (Ex. Ka-8) prepared at the instance of PW-1 and the witnesses does not disclose PW-1's presence from where he witnessed the appellant walking away with the child. In such circumstances, PW-1's testimony in respect of being a witness of the appellant walking away with the child does not inspire our confidence. 25. There is another reason to doubt the prosecution story in respect of the appellant being noticed walking away with the child, which is, that if the prosecution witnesses were aware that the child was with the appellant, there existed no apparent reason for them to launch a search for the child within a short span of time (i.e. 45 minutes) as disclosed by PW-1. Because, according to the prosecution evidence, the child used to be in the company of the appellant for hours and sometimes the appellant used to even take the child away and return him later. The reason disclosed by PW-1 for the hectic search in that short span of time is that when child's mother returned from temple, which was few paces away, the search for the child was launched. It therefore appears that child's mother must have queried about the child. Importantly, the mother of the child has not been examined. A child that young is ordinarily under constant supervision of mother or father or very close relative responsible enough to take care of the child. Mother of the child in the circumstances of the case was a critical witness whose non-production by the prosecution has an adverse impact on the credibility of the prosecution story. A child that young is ordinarily under constant supervision of mother or father or very close relative responsible enough to take care of the child. Mother of the child in the circumstances of the case was a critical witness whose non-production by the prosecution has an adverse impact on the credibility of the prosecution story. Otherwise also, if we accept PW-1's statement that hectic search was made when child's mother returned from temple, it would suggest that till then none was aware where the child was thereby rendering the prosecution story doubtful. 26. For all the reasons above as also that the key witnesses i.e. PW-1's aunt (Bua) and PW-1's wife (i.e. victim's mother) have not been examined, the prosecution evidence that the child was taken from home by the appellant on 28.5.2007 at 7.00 a.m. fails to inspire our confidence. Hence, we discard the circumstance that the appellant was seen taking away the child from home. 27. Now, we shall evaluate the ocular account with regard to commission of the offence rendered by PW-1. At the outset we may notice that the spot of occurrence is a sugarcane field shown to be a kilometre away from the village in the site plan (Ex. Ka-8). The distance of the spot i.e. where the body was found being one kilometre away from PW-1's house is confirmed by I.O. (PW-4) in paragraph 7 of his deposition. Interestingly, in paragraph 13 of PW-4's deposition, it is specifically stated that he noticed no blood on the spot. Injury No. 6 in the autopsy report (Ex. Ka-11) would indicate that there was a lacerated wound, muscle deep, on posterior margin of anus with clotted blood. If the victim was being subjected to anal intercourse at that spot, as the eye-witness account is, possibility of blood trickling down to the earth at the spot cannot be ruled out. Assuming that blood did not trickle down to the earth, the fall out of blood not being found there is that the prosecution evidence does not rule out possibility of the offence being committed elsewhere and body being dumped at that spot. Keeping the above possibility in mind we now proceed to evaluate the testimony of PW-1. According to PW-1, when the deceased could not be found a search for him and Sunil (the appellant) was made by him alongwith his brothers Krishna Pal and Tussam Singh (PW-2). Keeping the above possibility in mind we now proceed to evaluate the testimony of PW-1. According to PW-1, when the deceased could not be found a search for him and Sunil (the appellant) was made by him alongwith his brothers Krishna Pal and Tussam Singh (PW-2). PW-1 stated that first they searched for them in the village. On failure to find them, they went to search for them in the fields. According to PW-1, search operation commenced within 45 minutes to an hour of the deceased having left the house with the appellant. It is stated by PW-1 that when they arrived at the southern boundary of the field of Gulzari, from a distance of 20-25 paces, they spotted Sunil (i.e. the appellant) lying over the child and committing unnatural offence. But, interestingly, the time when PW-1 and his brothers noticed that, is neither specified in the written report nor in the oral testimony. The written report at the bottom mentions the time as 11.00 hours. What is interesting is that 11.00 hours is the time when the First Information Report was lodged at the police station and is also the time of making a GD entry thereof by PW-6. The police station, as per the Chik report (Ex. Ka-12), is 14 km away from the spot. If the incident was witnessed at 11.00 hours and the report was lodged 14 km away at the same time, in absence of specific disclosure as to when PW-1 and his brothers witnessed commission of unnatural offence by the appellant, the whole prosecution story becomes doubtful. Assuming that PW-1's omission with regard to the time of witnessing the incident is due to inadvertence and may therefore not be fatal to the prosecution case but here PW-1 was not alone in the team that was searching for the child. Apart from other villagers there were his two brothers. One brother has not been examined and the other brother, namely, PW-2, states during cross-examination that he was in his Sasural when he received the information at about 11 p.m. in the night upon which he rushed back home from his Sausural, which is 82 km away from his home, and after returning in the night noticed the body of the child lying in a sugarcane field. In these circumstances failure to disclose the time as to when the incident was noticed casts a serious doubt on the whole prosecution case. 28. Further, there is something inherently improbable in the testimony of PW-1 in respect of him witnessing commission of unnatural offence, which is, that the victim is a two year old child. How long a child of that tender age sustain an onslaught of the nature deposed by PW-1. Notably, PW-1 does not speak of noticing the murder, or throwing of the body, of the child. He speaks about witnessing commission of unnatural offence by the accused and of accused running away leaving the child, who was found dead. Notably, the body of the child carried various ante-mortem injuries. If those injuries were not caused in the presence of PW-1 then those injuries were caused earlier. With the kind of ante-mortem injuries found on the body, scope of survival even for half a minute appears improbable. Notably, hyoid bone was found fractured and in the opinion of the doctor death was due to asphyxia as a result of ante-mortem injuries on the neck. In that kind of a scenario, if PW-1 did not witness the causing of injuries to the child the obvious question that would arise is whether the accused was committing unnatural offence on a dead body. At this stage, we may notice that the prosecution evidence clearly spell out that the child was very friendly with the accused and used to play with him for hours. Accused resided in the neighbourhood and was a regular visitor. What made the accused a devil is not disclosed in the prosecution evidence. All these circumstances makes the testimony of PW-1 highly unnatural and improbable. Once, we accept this position a deeper and careful scrutiny of PW-1's testimony was required which, in our view, the trial Court failed to undertake. Interestingly, the defence questioned PW-1 whether during search the search team members were making loud calls for the missing person. In response to this question, in paragraph 18 of his deposition, PW-1 admits that while they were searching for the child they were shouting his name and by the time they arrived near that field (i.e. the spot), the accused had escaped. In response to this question, in paragraph 18 of his deposition, PW-1 admits that while they were searching for the child they were shouting his name and by the time they arrived near that field (i.e. the spot), the accused had escaped. If the informant and his brothers were shouting the name of the child, they would for sure have alerted the accused in advance as a result whereof the accused being present at the spot even after hearing the cries of the witnesses including father of the victim is highly improbable. For all the reasons above, we do not find the ocular account of PW-1 trustworthy and reliable. Rather, it appears to be a case where the body of the deceased was found and thereafter the story was developed. 29. The doubts expressed by us with regard to the truthfulness of the prosecution case could have been dispelled had key prosecution witnesses such as the aunt (Bua) of the informant, mother of the child victim and the brother of the informant, namely, Krishna Pal, been examined. Unfortunately, these key witnesses have not been examined. The other witness, namely, PW-2, who is claimed to be with the informant at the time of search, has demolished the prosecution story by stating that he was in his Sasural at the time when information about the incident was received in the night and that after receipt of information, he rushed to his village to discover the body in the field. The statement of PW-2 throws a serious possibility of the incident being of previous evening. This possibility derives strength from the autopsy report (Ex Ka-11), dated 28.5.2007, which at 4.30 p.m. estimates time since death as about one day. Further, the testimony of autopsy surgeon (PW-5) admits the possibility of death to have occurred in the evening of 27.5.2007. For all the reasons above, the ocular account rendered by PW-1 does not at all inspire our confidence as to form the basis of conviction. 30. In so far as medical evidence is concerned though it may have confirmed murder and unnatural offence upon the child victim but there is no forensic evidence to link the appellant to the crime. At this stage, we wish to record our displeasure with regard to the manner in which the investigation of the case was carried out. This is a case of the year 2007. At this stage, we wish to record our displeasure with regard to the manner in which the investigation of the case was carried out. This is a case of the year 2007. Section 53-A was inserted in the Code of Criminal Procedure, 1973 by Criminal Procedure (Amendment) Act, 2005 (Act No. 25 of 2005) with effect from 23.6.2005 yet, despite having obtained sealed bundles of clothes of the deceased, the anal swab smear slides of the deceased and the underwear of the appellant, no effort was made to connect the appellant with the crime through DNA profiling. What is surprising is that the I.O., in his deposition, states that he had not sent the underwear for forensic examination till submission of charge-sheet. He claims that he sent it later. When questioned about the date when it was sent, he stated that he does not know because the case diary is not with him. He also stated that he had not sought permission of the Court for further investigation under Section 173(8) CrPC. Such casual approach on the part of the investigating agency is deprecated. In the age of scientific advancement, particularly, after insertion of Section 53-A in the Code of Criminal Procedure, an effort should be there on the part of the investigating agency to ensure that the investigation is scientific so that an innocent is not punished and the guilty is not left unpunished. Unfortunately, there has been no effort of that kind. 31. In view of the discussion made above and for all the reasons recorded herein above, we have no hesitation in holding that the prosecution has failed in its endeavour to prove the charge against the appellant beyond reasonable doubt. The trial Court failed to evaluate and test the prosecution evidence in the correct perspective and took the evidence as gospel truth. Consequently, the appeal is allowed. The judgment and order of the trial Court convicting and sentencing the appellant is set aside. The accused-appellant is acquitted of the charge for which he has been tried and convicted. The appellant is reported to be in jail. Unless wanted in any other case, he shall be released forthwith subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial Court. 32. Let a copy of this order be forwarded to the Court below alongwith the record for information and compliance.