JUDGMENT : Hon'ble Pritinker Diwaker, J. Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Rajeev Nayan Singh, appearing for the appellants and Sri J.K. Upadhyay, learned AGA for the State. 2. This death reference was made to this Court under Section 366 of the Criminal Procedure Code, 1973 (in short 'Cr.P.C.') for confirmation of death sentence awarded to the appellants. The death reference and capital case are heard together and this judgement will govern both the capital case as well as the death reference. 3. This death reference and the capital case arise out of the judgment and order dated 10.1.2020 passed by the Additional Sessions Judge/Special Judge, POCSO Act, Court No. 9, Bareilly in Criminal Case No. 753 of 2019 (C.I.S. No. 1500286/2018) (State v. Murari Lal and another), arising out of Case Crime No. 50 of 2016 under Section 302/34, 201, 376D of I.P.C., Section 6 of POCSO Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Nawabganj, District - Bareilly and sentencing them to death sentence with fine of Rs. 50,000/- under Section 302 I.P.C., in default of payment of fine, one year additional imprisonment, 7 years imprisonment with fine of Rs. 10000/- under Section 201 I.P.C., in default of payment of fine, three months additional imprisonment, life imprisonment with fine of Rs. 50000/- under Section 376D I.P.C., in default of payment of fine, one year additional imprisonment, life imprisonment with fine of Rs. 50000/- under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, in default of payment of fine, one year additional imprisonment, and life imprisonment with fine of Rs. 50000/- under Section 6 of the POCSO Act, in default of payment of fine, one year additional imprisonment. 4. As per the prosecution case, on 29.1.2016 at about 12 in the Noon the deceased, who was a minor girl aged 12 years, left for the field and thereafter, she did not return. She was searched initially in the village itself by her family members and the information about her missing was also communicated to her father Hemraj (P.W. 1), who at the relevant point of time had gone to another village namely Idgaon. She was searched initially in the village itself by her family members and the information about her missing was also communicated to her father Hemraj (P.W. 1), who at the relevant point of time had gone to another village namely Idgaon. At about 4 p.m., some children informed P.W. 1 that one dead body is lying in a 'Lahi' field and when P.W. 1 and other villagers reached at the spot, they found the naked body of the deceased and they also noticed injuries on her private part. 5. Information was given to the police and based on written report (Ex.Ka-1), First Information Report (Ex.Ka-2) was registered against unknown persons under Section 302, 201, 376 I.P.C. read with Section 4 of POCSO Act. Inquest on the dead body was conducted on 29.1.2016 at 5.30 p.m. vide Ex.Ka-4 and the body was sent for post-mortem, which was conducted on 30.1.2016 by Dr. Neelam Arya (P.W. 5) vide Ex.Ka-5. The Autopsy Surgeon has found following injuries : ''1. Contusion 1.0 x 1.0 cm. over right side neck, 4.00 cm. below right ear. 2. Contusion 5.0 x 4.0 cm. over the front and left side neck upper part over Thyroid Cartilage. 3. Abrasion 1.0 x 0.1 cm. over the left side neck, 3.0 cm. below left sides angel of Mandible. 4. Abrasion 0.3 x 0.3 cm. over the left side face - cheek area 4.0 cm. away from angle of mouth. 5. Contusion 2.0 x 0.6 cm. over nostril upper lip with swelling. 6. Contusion 3.0 x 1.0 cm. over lower lip with swelling. 7. Blood stained discharge tickle down from Vulva and Vagina with blood stained present on Vulva. 8. Hymen lacerated at 7 O'clock position edges of Hymen are swelling bleeding present. 9. Abrasion 14.0 x 5 cm. cm. On the back of left forearm and hand involving wrist joint 7.0 cm. below elbow. 10. Abrasion 1.0 x 0.3 cm. over back of left forearm 3.0 cm. below elbow.'' 6. While framing charge, the trial Judge has framed the charge against the accused appellants under Section 302/34, 201, 376D of I.P.C., Section 6 of POCSO Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 7. So as to hold the accused appellants guilty, prosecution has examined 11 witnesses. Whereas one defence witness namely, Mahendra Lal has also been examined. 7. So as to hold the accused appellants guilty, prosecution has examined 11 witnesses. Whereas one defence witness namely, Mahendra Lal has also been examined. Statement of accused appellants were recorded under Section 313 Cr.P.C. wherein they pleaded their innocence and false implication and claimed trial. 8. By the impugned judgment and order, the trial Judge has convicted the appellants under Section 302/34, 201, 376D of I.P.C., Section 6 of POCSO Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Hence, this appeal. 9. Counsel for the appellants submits : (i) that there is no eye-witness account to the incident and the appellants have been convicted solely on the basis of weak circumstantial evidence; (ii) that on the basis of confessional statement made by Murari Lal, one 'Salwar' allegedly belongs to the deceased was seized on 31.1.2016 from the sugarcane field. However, the prosecution has failed to prove this recovery in accordance with law because neither the memorandum of the accused was recorded nor the recovery has been supported by any independent witness. Moreover, this recovery has been made from an open space, which is accessible to everyone; (iii) that on the disclosure statement of the accused Umakant Gangwar on 1.2.2016, one 'Chadar' (bed sheet) was allegedly seized vide Ex.Ka-13 from the wheat field. Moreover, this recovery has been made from an open space, which is accessible to everyone; (iii) that on the disclosure statement of the accused Umakant Gangwar on 1.2.2016, one 'Chadar' (bed sheet) was allegedly seized vide Ex.Ka-13 from the wheat field. But here also the memorandum was not recorded nor the recovery has been supported by any independent witness and most importantly it had been made from the open agricultural field accessible to everyone; (iv) that in the medical examination of the accused appellants, no injury was found on their body whereas as per the allegation, the prosecutrix was 12 years old girl and in such eventuality, accused appellants ought to have suffered some injuries; (v) that in the bed sheet, no blood was found whereas in the 'Salwar' allegedly belonging to deceased, human blood was found but origin of the same has not been proved as the group testing of the blood has not been done; (vi) that vaginal slide was prepared but there is no FSL report on record; (vii) that as per the prosecution case, extra judicial confession was made by the accused appellants before the P.W. 6/Ram Chandra, who used to work as a ear cleaner but this witness is wholly unreliable because the accused appellants were not known to him and why would they make such extra judicial confession before a person who was alien to them and there was absolutely no occasion or reason for the appellants to make said extra judicial confession before the respondent No. 6. Moreover, the alleged extra judicial confession was made on 30.1.2016 at 10 a.m. and till that time the complicity of the accused appellants in commission of offence was not known to the prosecution; (viii) that likewise, the so called extra judicial confession made by the accused appellants before the P.W. 7/Dr. Jagveer Singh vide Ex.Ka-6 and Ex.Ka-8 are wholly unreliable because the same have been recorded in similar language and at the relevant time the accused appellants were in police custody. There was absolutely no occasion for the accused appellants to make the so called extra judicial confession as recorded by the Doctor. Jagveer Singh vide Ex.Ka-6 and Ex.Ka-8 are wholly unreliable because the same have been recorded in similar language and at the relevant time the accused appellants were in police custody. There was absolutely no occasion for the accused appellants to make the so called extra judicial confession as recorded by the Doctor. Furthermore, the extra judicial confession is recorded in a column where the description of the incident is to be given and as to how and in what circumstance extra judicial confession has been recorded, the prosecution has utterly failed to do so; (ix) that according to P.W. 2/Smt. Moti, mother of the deceased, she saw the accused Murari Lal walking fast from the place of occurrence whereas the said statement has not been supported by the P.W. 3/Smt. Ramkali, who was accompanying the P.W. 2; (x) that the appellants have been convicted solely on the basis of surmises and conjectures; and (xi) that if the entire prosecution evidence is considered as it is, the present becomes a case of no evidence, yet not only the appellants have been convicted under Section 302 of I.P.C., but most surprisingly they have been awarded death sentence. 10. On the other hand, supporting the impugned judgment, it has been argued by the State counsel: (i) that conviction of the appellants is in accordance with law and there is no infirmity in the same; (ii) that a minor girl aged about 12 years had been first subjected to rape and then murdered and importantly the evidence clearly indicates that it is the appellants who committed the said crime; and (iii) that at times from the evidence inference has to be drawn and due appreciation has to be given to the evidence collected by the prosecution and considering this legal position, the conviction of the appellants is in accordance with law and there is no infirmity in the same. 11. We have heard learned counsel for the parties and perused the record. 12. P.W.1/Hemraj is the father of the deceased and the informant. Firstly, he has stated that his daughter went missing, and during search a dead body was found in the 'Lahi' field wearing a 'kurta' and he had apprehension that his daughter was subjected to rape and murder by some unknown person. He said that it is he who lodged the FIR. Firstly, he has stated that his daughter went missing, and during search a dead body was found in the 'Lahi' field wearing a 'kurta' and he had apprehension that his daughter was subjected to rape and murder by some unknown person. He said that it is he who lodged the FIR. In cross-examination, he has stated that nothing was recovered in his presence nor any formality in writing to this effect was done. His thumb impressions were taken by the police on a plain paper. 13. P.W.2/Smt. Mori is the wife of P.W.1 and mother of the deceased. She has stated that on the date of occurrence, she and her daughter had gone to the agricultural field to collect sugarcane leaves and thereafter, she had sent the deceased to home with a bundle of leaves and asked her to return back. However, when she did not return, she was being searched and later, her dead body was found in the field. She has further stated that she saw the accused appellant Murari Lal coming out from the place of occurrence walking very fast. P.W.3/Smt. Rajkali is the grand mother of the deceased and has turned hostile. 14. P.W.4/Anil Kumar is the police constable and has assisted the prosecution. 15. P.W.5/Dr. Neelam Arya is one of the member of the panel of Doctors, who conducted the post-mortem of the dead body and she proved the post-mortem examination report vide Ex.Ka-5. 16. P.W.6/Ram Chandra is a ear cleaner of the village before whom the alleged extra judicial confession is said to have been made by the accused persons. He has stated that the accused appellants, with folded hands, made a request to him for helping them and they also stated that they had committed a big mistake by raping the prosecutrix and then murdering her. 17. In cross-examination P.W. 6 has stated that the accused persons were not known to him previously. He further admitted that he was hard of hearing and because the police personnel are known to him, he assured the accused appellants that he would get the matter resolved with the police. 18. P.W.7/Dr. Jagveer Singh is a radiologist before whom the alleged extra judicial confession were made by both the accused vide Ex.Ka-6 and Ex.Ka-8. He further admitted that he was hard of hearing and because the police personnel are known to him, he assured the accused appellants that he would get the matter resolved with the police. 18. P.W.7/Dr. Jagveer Singh is a radiologist before whom the alleged extra judicial confession were made by both the accused vide Ex.Ka-6 and Ex.Ka-8. It is relevant to note here that the so called extra judicial confession written by this witness are same in nature and language is almost identical. 19. P.W.8/Inspector R.K.Singh is the Investigating Officer and has duly supported the prosecution case. 20. P.W.9/Dr. Sanjay Kumar was a member of the panel of Doctors, who conducted the post-mortem on the person of the deceased, has given the details of the injuries found on the body of the deceased vide his report Ex.Ka-5. P.W.10/S.S.I. Mukesh Kumar conducted inquest and initial investigation. P.W.11/C.O. Naresh Kumar is the second Investigating Officer, who after concluding the investigation filed the charge-sheet. 21. D.W.1/Mahendra Pal, the owner of the land where the dead body of the deceased was found, has shown his ignorance about seizer of the dead body from his field. 22. The law in respect of conviction based on circumstantial evidence is very clear. Reliance can be placed upon the judgment of the Supreme Court in Ramanand alias Nandlal Bharti v. State of U.P. Criminal Appeal Nos. 64-65 of 2022 decided on October 13, 2022, wherein it has been held: ''47. ...It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye-witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard. 48. A three A­Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , held as under: ''152. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard. 48. A three A­Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , held as under: ''152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [ AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up­to­date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [ (1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [ (1972) 4 SCC 625 : AIR 1972 SC 656 ]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [ AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, 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. 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.'' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.'' 23. Now if the above principle of law is applied in the present case, the position comes out in the following manner: 24. The present case is based upon circumstantial evidence, however, circumstance put forth by the prosecution does not indicate that only one conclusion can be drawn in favour of the prosecution, rather it is contrary where circumstances indicate towards innocence of the accused. As per evidence, prosecution has failed to prove its case completely in its favour and the evidence is inconsistent only with the hypothesis of the guilt of the accused. As per evidence, prosecution has failed to prove its case completely in its favour and the evidence is inconsistent only with the hypothesis of the guilt of the accused. The evidence is not conclusive in nature and does not indicate the possible hypothesis except the one to be proved. From the evidence, it is apparent that the chain of evidence is not complete governing the basic principles of the cases based on circumstantial evidence. The recovery of articles has not been proved as per the requirement of law and likewise the medical report. In the present case, based on extra judicial confession of the accused before PW-7, it cannot be said that the prosecution has succeeded in proving its case beyond all reasonable doubts. 25. Further the law in respect of extra judicial confession is also very clear and reliance can be placed upon the case of Ramanand (supra) wherein it has been held: ''82. Extra judicial confession is a weak piece of evidence and the Court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the Court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction. 83. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments, in Sahadevan and another v. State of Tamil Nadu, (2012) 6 SCC 403 , this Court held as under:­ ''15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10) ''10. An extra­judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra­judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.'' x x x x 15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra­judicial confession, this Court in State of Rajasthan v. Raja Ram [ (2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p. 192, para 19) ''19. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra­judicial confession, this Court in State of Rajasthan v. Raja Ram [ (2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p. 192, para 19) ''19. An extra­judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.'' The Court further expressed the view that: (SCC p. 192, para 19) ''19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused....'' x x x xxx xxx 15.6. Accepting the admissibility of the extra­judicial confession, the Court in Sansar Chand v. State of Rajasthan [ (2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79] held that: (SCC p. 611, paras 29­30) ''29. There is no absolute rule that an extra­judicial confession can never be the basis of a conviction, although ordinarily an extra­judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore [ (1970) 2 SCC 105 : 1970 SCC (Cri) 320], Mulk Raj v. State of U.P. [ AIR 1959 SC 902 : 1959 Cri LJ 1219], Sivakumar v. State [ (2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra [ (2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320] and Mohd. Azad v. State of W.B. [ (2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082]]'''' 84. It is well-settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra judicial confession of accused need not in all cases be corroborated. Azad v. State of W.B. [ (2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082]]'''' 84. It is well-settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey and another, (1992) 3 SCC 204 , this Court after referring to Piara Singh and others v. State of Punjab, (1977) 4 SCC 452 , held that the law does not require that the evidence of an extra judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated. 85. The sum and substance of the aforesaid is that an extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession.'' 26. From the facts of the present case and the law laid down by various Courts, it is apparent that in the present case there is hardly any legally admissible evidence against the appellants and we have no hesitation in holding that the prosecution has failed to prove the charges beyond reasonable doubt for which the accused-appellants were tried and therefore, the appellants are entitled to the benefit of doubt. 27. We, therefore, have no hesitation in rejecting the reference for affirmation of the death sentence and in allowing the appeal of the appellants against the order of their conviction and sentence. The appeal of the appellants is allowed. The reference sent by the trial Court to confirm the death penalty is rejected. The judgment and order of the trial Court dated 10.1.2020 is set aside. The appellants are acquitted of all the charges for which they have been tried and convicted. The appellants shall be released from jail forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437-A Cr.P.C. to the satisfaction of the trial Court. 28. The appellants are acquitted of all the charges for which they have been tried and convicted. The appellants shall be released from jail forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437-A Cr.P.C. to the satisfaction of the trial Court. 28. Let a copy of this order alongwith the record of the trial Court be sent to the Court below for information and compliance.