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2022 DIGILAW 344 (ALL)

Jeetu Niranjan v. State of U. P.

2022-03-10

MANOJ MISRA, SAMEER JAIN

body2022
JUDGMENT : 1. This appeal is against the judgment and order of conviction and punishment dated 10.03.2015 and 11.03.2015, respectively, passed by Additional Sessions Judge/F.T.C., Orai, District Jalaun in S.T. No.243 of 2009 whereby, the appellant (Jeetu Niranjan) has been convicted under Sections 302 and 376 read with Section 511 IPC and sentenced to imprisonment for life with fine of Rs.10,000/-, under section 302 IPC, and a default sentence of one year S.I.; and seven years R.I. with fine of Rs.2,000/-, under Section 376/511 IPC, and a default sentence of two months S.I. INTRODUCTORY FACTS 2. In brief, the facts giving rise to this appeal are as follows: A missing report (Ex. Ka-1) was lodged by PW-1 (father of the victim) on 01.08.2004 at 1.30 pm of which GD entry was made by PW-6. In the report it was alleged that PW-1's daughter (the victim-the deceased), aged about three years, who was last seen playing outside the house at about 11.00 AM on 31.07.2004, has gone missing. This missing report suspects none. Thereafter, on 02.08.2004 (Ex. Ka-2), at 14.45 hrs, PW-2, a neighbour of PW-1, gave information that the body of the missing daughter of PW-1 has been recovered from a room next to Radha Krishna temple and, therefore, necessary action be taken. This report also suspects none. On this report (ExKa2), an inquest is conducted and completed at the spot by 17.45 hrs on 02.08.2004, of which an inquest report (Ex. Ka-10) is prepared by PW-7, thereafter, on 03.08.2004, by about 2.20 pm, autopsy is completed by PW-5. The autopsy report (Ex. Ka-3) notices marks around the neck of the deceased and, as per the the doctor, opines that death was due to asphyxia as a result of ante mortem throttling. The estimated time of death, as per the autopsy report, which was completed at around 2.20 pm of 03.08.2004, is three days before. In between, plain earth and blood-stained earth was lifted from the spot and a piece of paper (a wrapper of Hello Kismis toffee) was found on the floor, near the right hand of the deceased. A composite recovery memo (Ex. Ka-12) of plain/bloodstained earth and toffee wrapper was prepared by PW-9 and, later, vide GD Report No.28 (Ex. Ka-13), dated 02.08.2204, at 22.30 hrs, case crime no.120 of 2004 was registered at P.S. Sirsa Kalar, district Jalaun, under section 302 IPC, against an unknown person. A composite recovery memo (Ex. Ka-12) of plain/bloodstained earth and toffee wrapper was prepared by PW-9 and, later, vide GD Report No.28 (Ex. Ka-13), dated 02.08.2204, at 22.30 hrs, case crime no.120 of 2004 was registered at P.S. Sirsa Kalar, district Jalaun, under section 302 IPC, against an unknown person. Subsequently, on 03.08.2004 statement of PW-1 (father of the deceased-informant); PW-8 (mother of the deceased) and others including PW-4 (uncle of the deceased) were recorded under section 161 CrPC and, thereafter, the accused-appellant and co-accused Raju were arrested, who, reportedly, confessed their guilt. After carrying out usual steps of investigation and after completing the investigation, PW-9 (the investigating officer I.O) submitted a charge sheet (Ex. Ka-14) against two persons, namely, Raju Yadav (non appellant) and Jeetu (the appellant). On 10.02.2005, Raju Yadav (co-accused) was declared juvenile and his trial was separated, whereas the trial proceeded against the appellant after framing of charges, under Section 376 read with Section 511 IPC and Section 302 IPC, vide order dated 25.04.2005, on pleading not guilty and claiming for a trial. PROSECUTION EVIDENCE 3. During the course of trial, as many as 10 prosecution witnesses were examined. They are as follows:- 4. PW-1 - the father of the deceased-victim. He proved lodging of the missing report as also that the deceased was seen alive on or about 10-11 am of 31.07.2004. Note:- Admittedly, PW-1 is not an eye witness of any incriminating circumstance against the accused-appellant therefore, we do not propose to notice his testimony in detail. 5. PW-2 - a neighbour, who gave information, vide written report (Ex. Ka-2), to the police on discovery of the body of the victim. He proved Ex. Ka-2. He is also not an eye witness of any incriminating circumstance against the accused-appellant therefore, we do not propose to notice his testimony in detail except the reason as to why he had come to give the information, which, according to PW-2, was that PW-1 requested PW-2 to give information because PW-1 was in a state of shock. 6. PW-3 - He is the uncle (Chacha) of the deceased. He stated that, in all, they are four brothers who have a joint living. The deceased was his niece. 6. PW-3 - He is the uncle (Chacha) of the deceased. He stated that, in all, they are four brothers who have a joint living. The deceased was his niece. On 31.07.2004 he had arrived at the house on his tractor at about 10 am to take its trolley, then he saw the victim outside the house playing under a Neem tree. Thereafter, he took the trolley and went away. When he returned in the afternoon, he came to know that the victim is missing. A search was made for the victim but she could not be found. Information of the victim having gone missing was given by his brother on 01.08.2004 at the police station concerned. On 02.08.2004, the servant of his house, namely, Raju Yadav (co-accused), informed that foul odour was coming from the Kothri (small room) adjoining the temple. When lock of that Kothri was opened by PW-3 in the presence of other villagers, near a cement bag which was kept in the Kothri, the body of the deceased in a decomposed state was noticed with her tongue and eyes protruding out and blood scattered on the floor. He stated that the Kothri from where the body was recovered was used to store goods and was always locked but the key of that lock used to be hanged on the wall. He stated that when Raju Yadav (co-accused) was interrogated with strictness by the villagers, he disclosed that he (Raju Yadav) and Jeetu alias Jitendra (the present appellant) have killed the victim. He stated that after getting information about the death of the deceased, information was given to the police at his instance by PW-2 because PW-1 was not there. During cross-examination, he stated that co-accused Raju, a resident of Bihar, was working as a help in the house. He used to sleep, eat and live in the house and was, therefore, familiar with all members of the family. He stated that the temple is a public temple and his family manages its affair. Villagers, daily, visit the temple; worshipers visit the temple since the morning and the temple is never kept locked. The temple has three rooms. The middle main room has diety installed, adjoining the main room, there are two rooms, one on each side. He stated that the temple is a public temple and his family manages its affair. Villagers, daily, visit the temple; worshipers visit the temple since the morning and the temple is never kept locked. The temple has three rooms. The middle main room has diety installed, adjoining the main room, there are two rooms, one on each side. One room is kept vacant and in the other he keeps his goods, which is towards west of the main temple room. All the three rooms open towards north. PW-3 admitted that this temple is public and was not built by his ancestors but his ancestor used to be a Pujari in the temple. PW-3 denied the suggestions that his family had forcibly occupied the temple; that accused and his family used to protest illegal occupation of PW-3 and his family over the temple and its property therefore, he is lying; and that he has made false statement about confession, because of tutoring. 7. PW-4 - grand father of the deceased-victim. He states that his house is in front of the temple where there is a statue of Radha Krishna Ji Maharaj installed; that the temple is open to the public where they worship daily; that Jeetu alias Jitendra (the appellant) is a resident of the village; that between 11-11.30 am, he saw Jeetu alias Jitendra (the appellant) entering the temple. At that time, he went to urinate and when he returned 10-15 minutes later, he saw Jeetu (the appellant) exiting the temple in a hurry, following Jeetu, he saw Raju Yadav (co-accused), help in the house, exiting the temple; and heard his daughter-in-law (mother of the deceased - PW-8) calling for her daughter (the victim) to give her a bath and when a search for her (the victim) was made, she could not be found. PW-4 added that the appellant does not have a good character and he had developed friendship with Raju (the help). During cross examination, he also stated what PW-2 had stated about the temple having three rooms all opening towards north. He added that victim's body was recovered from the room located towards west of the main room of the temple. He clarified that if one enters the temple premises, the room from where the body was recovered falls first. During cross examination, he also stated what PW-2 had stated about the temple having three rooms all opening towards north. He added that victim's body was recovered from the room located towards west of the main room of the temple. He clarified that if one enters the temple premises, the room from where the body was recovered falls first. Thereafter, there is main temple room where deity has been established, which is followed by another room which does not have a door. He stated that the other room which does not have a door is vacant. Further, during cross-examination, he stated that agricultural implements are kept in the room which is locked; and this room is used by his son (PW-3), who uses a tractor; and that PW-3 opens and shuts the lock of that room and maintains control over the key of that lock. He stated that on 02.08.2004 and 03.08.2004 he was interrogated by the I.O. He had informed the I.O. that he was sitting outside on a chair placed at the Chabutra (a raised platform used for sitting) just outside the temple, but, if that was not written he cannot tell its reason. He states that he has six grandchildren. They all play with each other. He states that on 02.08.2004, between 1.30 and 2.00 pm, Raju had informed PW-3 about foul odour coming from the room; at that time, PW-4 was not there. When he returned after herding cattle, at about 4 pm, he saw people gathered around and the police had also arrived. In respect of the place of residence of the appellant, PW-4 stated that appellant’s house is just three four houses away. PW-4 stated that only after the incident he came to know that the appellant had friendship with co-accused Raju; PW-4 also admitted that for the first time in court he stated that the appellant does not have a good character. He denied the suggestion that he made this statement on legal advise. But admitted that there is caste related party-bandi (politics) in the village; that the temple was not built by his ancestors; that he and his family are in control of the temple. He denied the suggestion that father of the appellant used to oppose PW-4’s control of the temple and, therefore, out of animosity, appellant has been implicated. But admitted that there is caste related party-bandi (politics) in the village; that the temple was not built by his ancestors; that he and his family are in control of the temple. He denied the suggestion that father of the appellant used to oppose PW-4’s control of the temple and, therefore, out of animosity, appellant has been implicated. He denied the suggestions that PW-4 was not there at the time of the incident; that he did not see appellant entering and leaving the temple; and that he is telling lies. 8. PW-5 (Dr. Y.K. Sharma) is the doctor, who conducted autopsy. He proved the autopsy report and confirmed that death was due to asphyxia as a result of ante mortem strangulation. He accepts the possibility of death being caused at or about 11-11.30 am on 31.07.2004. In his cross-examination, he stated that no injuries were noticed on the private parts of the deceased; that no sign of sexual assault were noticed; that the estimation in the time of death of the deceased could vary by 10 hours either way; that the death could also be in the night of 31.07.2004 between 1.00 am and 10 am. 9. PW-6 (Tulsi Ram Chand) - a constable who proved GD entries of the missing report, dated 01.08.2004, at 1.30 pm, as well as conversion report, dated 02.08.2004, at 22.30 hrs. 10. PW-7 (Rajeshwari Prasad Mishra) is the police personnel who conducted inquest and prepared documents in reference thereto as well as for autopsy. He proved those documents. He stated that there were no signs of sexual assault therefore there was no mention of it in the inquest report 11. PW-8 the mother of the deceased. She stated that on 31.07.2004 her daughter (the deceased) was playing outside the house. When PW-8 went to call her father-in-law (PW-4) for his meal, she noticed that co-accused Raju Yadav was holding the victim by her finger and going towards the temple and Jeetu Niranjan (the appellant) was following him. At that time, it must be 11 am. PW-4, who was sitting outside the door, stated that he would not have his meal therefore, PW-8 thought of giving her daughter (the victim) a bath. When PW-8 came out 5-10 minutes later, gave a call for her daughter, she saw Jeetu leaving the temple premises in a hurry and Raju following him. PW-4, who was sitting outside the door, stated that he would not have his meal therefore, PW-8 thought of giving her daughter (the victim) a bath. When PW-8 came out 5-10 minutes later, gave a call for her daughter, she saw Jeetu leaving the temple premises in a hurry and Raju following him. When she asked Raju about the victim, he did not respond and went away in a haste. She stated that thereafter she made a search for her daughter (the victim) but could not find her. In her cross-examination, she admitted that Raju was a help of the house and used to reside there for about a year. But she could not tell whether he was given salary. She stated that her husband’s elder brother had employed him. She also admitted that her family is a joint family. She stated that the temple is a public temple and that she never had an occasion to speak to the appellant. She stated that so many people visit the temple that she cannot tell their name. She stated that her house is 20 to 25 paces away from the temple. The door of her house opens towards east. In front of her house, there is Chabutra but no verandah. She stated that her father in law (PW-4) was sitting at the door of the house. She stated that she had shown the spot from where she and her father in law witnessed the accused entering and leaving but if that had not been shown in the site plan then she cannot tell the reason for it. Similarly, when she was confronted with an omission in her statement, recorded under Section 161 CrPC, regarding having noticed Raju Yadav (co-accused) holding a finger of her daughter (the deceased) and going towards the temple, followed by Jeetu Niranjan (the appellant), she stated that she had disclosed that to the I.O. but if that was not written, she cannot tell the reason. She was also confronted with an omission in her statement, recorded under Section 161 CrPC, that when she came out of the house 5-10 minutes later, she saw Jeetu exiting the temple premises in a hurry followed by Raju (co-accused). To this also, she stated that she had informed the I.O. but if that was not written, she cannot tell the reason. To this also, she stated that she had informed the I.O. but if that was not written, she cannot tell the reason. She was also confronted with an omission in her statement recorded under Section 161 CrPC of having questioned Raju regarding the whereabouts of her daughter while he was exiting the temple. She however denied the suggestion that all of what she was saying is for the first time, on legal advise. On being questioned whether all of this was disclosed by her to her husband and brother in law, she stated that they were not promptly informed but were told later. She stated that she does not know whether her husband and brother in law had gone inside the temple to search out the victim. She clarified that, probably, they had gone there but may not have opened the door. She reiterated that key of the lock put on that door is usually hanged on a hook placed on the wall. She stated that, third day, Raju informed her brother in law of foul odour coming from the room adjoining the temple. She denied the suggestion of not seeing the appellant entering the temple with co-accused and the victim. She denied the suggestion that her statement is tutored and made because of animosity between her family and family of the appellant. She also denied that what she is telling is a lie. 12. PW-9 (Prem Singh - I.O.). He proved the various stages of investigation and the preparation of site plan at the instance of family members of the deceased, who were found present at the spot, which was exhibited as Ex. Ka-11. He stated that on 3.8.2004 he recorded the statement of witnesses including PW-1, PW-4 and PW-8. After which, it was considered necessary to interrogate both the accused. Thereafter, the accused were found near Milan Kendra, where they were stopped in the presence of Sudarshan and Ram Kumar, there, on interrogation, the accused confessed their guilt and were accordingly arrested. Thereafter, on 23.08.2004 charge sheet was submitted under section 302 IPC. He produced the plain earth, blood-stained earth and toffee wrapper recovered from the spot which were marked material exhibits 1, 2 and 3. Thereafter, on 23.08.2004 charge sheet was submitted under section 302 IPC. He produced the plain earth, blood-stained earth and toffee wrapper recovered from the spot which were marked material exhibits 1, 2 and 3. During the course of cross-examination, he admitted that in the site plan he had not shown the place from where the witnesses saw the accused entering and leaving the temple nor he disclosed the way of the accused entering and leaving temple. He also stated that in Parch No.1, which indicates preparation of site plan, prepared on 02.08.2004, he did not record the name of the accused because by that time their identity was not known. He admitted that there was no eye witness of Jeetu (the appellant) committing murder of the deceased. PW-9 stated that PW-3, during the course of investigation, had not disclosed to him that on interrogation, Raju Yadav confessed his guilt as well as the guilt of the appellant. PW-9 also stated that PW-4, during the course of investigation, did not make any statement that when he returned after urinating, he saw Jeetu alias Jitendra Niranjan (the appellant) exiting the temple in a hurry and with him there was Raju; that PW-4 also did not inform that Raju Yadav (co-accused) and Jitendra alias Jeetu (the appellant) were close friends and used to meet each other often and that the appellant was of bad character; that PW-8 had not informed, during investigation, that she saw Jitendra exiting the temple in a hurry followed by Raju. He also stated that during investigation he found no evidence with regard to commission of offence punishable under Section 376 IPC. PW-9 denied the suggestion that he did not properly investigate the matter and filled up papers sitting at his table and, without evidence, submitted charge-sheet. PW-9 was recalled and re-examined on 29.01.2015. On recall, he proved the arrest memorandum of the accused dated 03.08.2004, which was witnessed by Sudharshan and PW-10, the same was marked Ex. Ka-16. He could not, however, remember the time of arrest but stated that the arrested accused were interrogated in the presence of witnesses Sudarshan (not examined) and PW-10. PW-9, however, stated that PW-10, during investigation, did not disclose that the accused had confessed their guilt. PW-9 denied the suggestion that the accused were arrested in the village. 13. PW-10 (Raj Kumar). He stated that he knows PW-1. PW-9, however, stated that PW-10, during investigation, did not disclose that the accused had confessed their guilt. PW-9 denied the suggestion that the accused were arrested in the village. 13. PW-10 (Raj Kumar). He stated that he knows PW-1. He stated that information about the place from where the body of the deceased was recovered was provided by co-accused Raju (servant). That information was given, when Raju was threatened and interrogated by the villagers. Only then, he disclosed that foul odour was coming from the room next to the temple. Thereafter, Raju confessed his guilt as also the hand of the accused-appellant in the murder of the deceased. Thereafter, both Raju and the appellant, when threatened by the villagers to come out with the truth, confessed their guilt. Soon thereafter, police arrived and arrested them. On being queried by the court, he stated that co-accused Raju and Jeetu (the appellant) had also confessed that they attempted a rape on the deceased and to hide the same, they killed the deceased and hid her body in that room. During his cross-examination, he was confronted with his previous statement made during the course of investigation wherein he had stated that when, in the presence of the I.O., Raju Yadav and Jeetu were interrogated they had confessed their guilt. He was also confronted with the omission in his statement, recorded during the course of investigation, with regard to confession of guilt by the accused other than the confession noticed above. He admitted that that part of his statement has been given for the first time in court. He denied the suggestion that what all he has stated in court is on account of tutoring. He denied the suggestion that the accused did not confess their guilt in his presence. 14. After the prosecution evidence was recorded, the incriminating circumstances appearing in the prosecution evidence were put to the accused-appellant under Section 313 CrPC. The accused-appellant denied his guilt and claimed that he has been falsely implicated on account of dispute with regard to management of the temple. He also stated that there is a dispute between his family and the complainant family in respect of the temple and, therefore, he has been falsely implicated. However, no defence evidence was led. TRIAL COURT FINDINGS 15. He also stated that there is a dispute between his family and the complainant family in respect of the temple and, therefore, he has been falsely implicated. However, no defence evidence was led. TRIAL COURT FINDINGS 15. The trial court by placing reliance on the testimony of the prosecution witnesses that the accused-appellant with co-accused Raju Yadav were seen entering the temple with the deceased on or about the probable time of her death and thereafter they were seen exiting in a hurry without the deceased; whereafter, the deceased was not seen alive and, later, her body was recovered from a room in the temple on the confessional statement of co-accused Raju therefore, by keeping in mind that there was an extra judicial confession before PW-10, found the chain of incriminating circumstances complete, pointing towards the guilt of the accused-appellant, ruling out all hypothesis other than the guilt of the accused-appellant, convicted the appellant for the charged offences and punished him, accordingly. 16. We have heard Ms. Swati Agrawal for the appellant; Sri J.K. Upadhyay, learned AGA, for the State; and have perused the record. SUBMISSIONS ON BEHALF OF THE APPELLANT 17. The learned counsel for the appellant submitted that from the prosecution evidence it is clear that the temple was open to all. The members of public could offer their prayers and the entry in the temple was not restricted. The site plan of the temple (Ex. Ka-11), which has been proved by the I.O. and its lay out has been confirmed by the testimony of PW-4, would suggest that running from the west to east there are three rooms. The first room towards extreme left (west) is the room from where the body of the deceased was recovered. This room has a door, which remains locked. The second room from west is the main temple, where the deity is installed; and the third room is a Kothri with no door. From the testimony of PW-4, it is clear that the key of the lock put on that room from where the body of the deceased has been recovered is under the control of PW-4's son. Admittedly, the room was locked and only when foul odour was sensed the lock was opened and body was discovered. From the testimony of PW-4, it is clear that the key of the lock put on that room from where the body of the deceased has been recovered is under the control of PW-4's son. Admittedly, the room was locked and only when foul odour was sensed the lock was opened and body was discovered. Notably, the girl (the victim) went missing on 31.07.2004 at about 11 am of which no missing report is lodged till 1.30 pm of 01.08.2004. It is unacceptable that inquiries would not be made from the servant with whom, according to the prosecution, the victim was last seen alive, had it been so. In so far as the testimony of the victim being last seen alive with the co-accused Raju is concerned, that is for the first time coming during the course of trial and it is at variance with the statement made during the course of investigation, therefore, not much reliance can be placed on it. It has been submitted that other than the sketchy evidence of the deceased entering the temple with the co-accused and the appellant; and, after some time, the accused seen leaving the temple, without the deceased, there is no evidence to connect the appellant with the crime. In so far as the evidence of appellant entering the temple is concerned, admittedly, the victim was not holding the finger of the appellant but of her servant i.e. co-accused Raju. Notably, the temple is accessible to all and, therefore, if the accused-appellant had entered the temple that by itself is not an incriminating circumstance. Leaving the temple is also not an incriminating circumstance because if the temple is for all there would be free ingress and egress. Interestingly, there is no evidence that the accused-appellant or the co-accused were seen entering the room from where the body of the deceased was recovered. As, admittedly, the temple had three separate rooms and there was no ingress and egress point connecting one room to the other and, as per site plan, ingress and egress to each room was from a common verandah outside the three rooms, if any of the accused was seen entering the temple it cannot be assumed that he entered the room from where the body was recovered. Therefore, unless there is cogent and specific evidence that the accused were seen entering and leaving the room from where the body was recovered, no inference can be drawn that the accused appellant were guilty of murder. Further, extra judicial confession before PW-10 is for the first time set up in court and was not there during investigation and, other than that, confession before police, vide Ex. Ka-16, is not admissible. Hence, it is a case of no worthwhile evidence against the appellant; whereas, the trial court without properly scrutinising and analysing the evidence recorded conviction, which deserves to be set aside. SUBMISSIONS ON BEHALF OF THE STATE 18. Sri J.K. Upadhay, learned AGA, supported the findings returned by the trial court by submitting that this is a case where there could be no other culprit than the co-accused Raju Yadav, who has been declared juvenile and was residing in the house, and the appellant who were seen together with the deceased about the relevant time. As there is evidence that the deceased was seen holding the finger of co-accused and entering the temple on or about probable time of death of the deceased and thereafter the appellant was also seen entering the temple and the appellant thereafter was seen exiting the temple in a hurry, followed by co-accused, and, thereafter, the deceased was not seen alive, a very heavy burden lies on the accused-appellant to explain as to in what circumstances he entered the temple and as to why he left the temple in a hurry with the co-accused Raju. In absence of such explanation, the culpability of the accused-appellant stands established more so, when there is an extra judicial confession to corroborate the prosecution story therefore, the conviction recorded by the trial court cannot be faulted. ANALYSIS 19. Before we proceed to analyse the submissions in the context of the prosecution evidence, considering that we are dealing with a case which is to be decided on the basis of circumstantial evidence, it would be useful to notice the legal principles to be borne in mind when the court has to decide a criminal trial on the basis of circumstantial evidence. In Vijay Shankar V. State of Haryana, (2015) 12 SCC 644 , the Supreme Court following its earlier decisions in Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116 and Bablu V. State of Rajasthan, (2006) 13 SCC 116, in respect of a case based on circumstantial evidence, held that “the normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence”. Further, the circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby they 'must or should' and not 'may be' established. In addition to above, we must bear in mind that the most fundamental principle of criminal jurisprudence is 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 (vide Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793 ). These settled legal principles have again been reiterated in a three-judge Bench decision of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows: “18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. 19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same.” (Emphasis Supplied) 20. Having noticed the legal principles as to when an accused can be convicted on circumstantial evidence, we shall now proceed to notice the circumstances on which the prosecution proposes to prove the accused appellant guilty. These circumstances are: (i) the deceased was alive and seen playing near the temple by or about 10.30 - 11.00 am on 31.07.2004; (ii) at about 11.00 am the deceased was seen holding finger of co-accused Raju (a help /servant of the informant party) and entering temple, following them was the accused-appellant; (iii) at about 11.15 am, appellant was seen exiting the temple, following him was co-accused Raju minus the deceased; (iv) the deceased was not seen alive thereafter; (v) on 01.08.2004, the father of the deceased (PW-1) lodged a missing report; (vi) on 02.08.2014, upon sensing foul odour, from a locked room adjoining the main room of the temple, body of the deceased was discovered; (vii) autopsy disclosed death was due to asphyxia as a result of ante-mortem strangulation and could have had occurred on or about the probable time when the deceased went missing; and (viii) on 03.08.2004, the accused were apprehended and they confessed their guilt. 21. We shall now examine whether the prosecution has been successful in proving these circumstances beyond reasonable doubt. 21. We shall now examine whether the prosecution has been successful in proving these circumstances beyond reasonable doubt. When we carefully scrutinise the evidence on record, we find that there is no challenge by the defence to the prosecution testimony in respect of engagement of co-accused Raju by the complainant family as their help. Further, co-accused Raju was living there with the complainant family for about one year and therefore, it can be presumed that the deceased-child was friendly with co-accused Raju. Accordingly, seeing co-accused Raju holding finger of the child (deceased) and leading her towards the temple, which was just 20-25 paces away, by itself, is not a circumstance that may create suspicion. But, had this circumstance been noticed and the deceased thereafter was not seen alive, the same would have assumed importance and would have surely been put across the suspect or reported to the police at the earliest. Notably, the missing report (Ex. Ka-1), dated 01.08.2004, as well as report relating to discovery of body (Ex. Ka-2), dated 02.08.2004, reports no suspect. Most importantly, CD Parcha No.1, dated 02.08.2004, which incorporates preparation of site plan (Ex. Ka-11), prepared by PW-9 at the instance of the family members of the deceased, neither discloses the ingress egress path of the suspects nor reveals the position of the witnesses. The story about the complicity of co-accused-Raju and the appellant gains momentum on 03.08.2004 on which date the accused are arrested and their confessional statement is taken. In this background, we would have to be cautious in scrutinising the testimony of PW-8, the mother of the deceased who, along with the grand father of the deceased (PW-4), were witnesses of this circumstance. Notably, PW-8, during cross-examination, was confronted with an omission in her statement, recorded under section 161 CrPC, about this circumstance. In so far as PW-4 is concerned, he, during cross-examination, stated that he was interrogated on 2.8.2004 and 3.8.2004 by the I.O. but if the I.O. had not recorded his statement that he was sitting outside on a chair and had noticed that circumstance, he cannot give the reason for it. Importantly, PW-4’s location is not disclosed in the site plan prepared by I.O. on 2.8.2004. Thus, it appears, this incriminating circumstance was put across at a later stage, which raises a serious doubt about its existence. Importantly, PW-4’s location is not disclosed in the site plan prepared by I.O. on 2.8.2004. Thus, it appears, this incriminating circumstance was put across at a later stage, which raises a serious doubt about its existence. Therefore, it is held that the circumstance that the deceased was seen entering the temple with co-accused Raju, followed by the appellant and, thereafter, the appellant, followed by the co-accused, were noticed exiting the temple, short while thereafter, minus the deceased, is not proved beyond reasonable doubt. 22. Even assuming that the above circumstance has been satisfactorily proved, the question that arises is whether it is of a definite tendency pointing towards the guilt of the appellant. In this regard it be noticed that the deceased was not seen holding the hand of the appellant, rather, she was with the co-accused Raju. The temple where the appellant allegedly entered is a public temple where entry is not restricted, rather it is open to all. Therefore, even if we assume that the appellant entered the temple, that, by itself, is not an incriminating circumstance because any body could go and come out. Another important aspect is that the prosecution evidence is not that the appellant was seen entering or exiting the room from where the body was recovered. Interestingly, the site plan (Ex. Ka-11) and the statement of PW-4 confirms that the room from where the body of the deceased was recovered has a door, which remains locked, whereas, the deity is in the middle room, which remains open, providing access to all. The prosecution witnesses (PW-3 and PW-8) have tried to develop a story that though the room from where body was recovered remains locked but the key of that lock hangs on a hook placed on the wall. However, this part of the prosecution story is at variance with the deposition of PW-4 who, during the course of cross-examination, stated that the key of that lock is under the control of his own son (PW-3). Once this is position, the entire prosecution case falls to the ground and throws multiple questions. However, this part of the prosecution story is at variance with the deposition of PW-4 who, during the course of cross-examination, stated that the key of that lock is under the control of his own son (PW-3). Once this is position, the entire prosecution case falls to the ground and throws multiple questions. Admittedly, the prosecution seeks to discharge its burden by leading circumstantial evidence and once it comes in the evidence that the room from where the body was recovered is under the control of a person who is not an accused, then the burden is on the prosecution to explain as to how access to that room could be had by the accused. No doubt, the prosecution did set up a story that the key of that lock use to be there on the hook placed on the wall but all the prosecution witnesses are not consistent in that regard. Rather, PW-4 states that the key of that lock was under the control of PW-3 (uncle of the deceased). There is also another aspect of the matter, which is, that the main accused Raju had not absconded. Interestingly, he was the one who sensed foul odour and at his instance the room was opened on 02.08.2004. No doubt, prosecution has tried to explain this by setting up a story that first he (Raju) confessed, on strict interrogation, and then the room was opened. But had this been the case, the name of the accused must have figured in the CD (Case Diary) Parcha prepared on 2.08.2004. But, interestingly, the name of the accused surfaced only on 03.08.2004. Thus, the theory of extra judicial confession made by co-accused Raju leading to discovery of body appears doubtful. 23. In so far as the extra judicial confession of the accused-appellant is concerned, firstly, PW-10, the witness of it is also a witness of such confession recorded in the memorandum of arrest (Ex. Ka-16). PW-10 states that as soon as the confession was made before the villagers, the police had arrived. Not only that, he stated that the villagers had gathered and had threatened the accused to come out with the truth. In that context, we have to examine the worth of the alleged confession. It is well settled that before a confession is acted upon, the court must be satisfied that it is voluntary and truthful. Not only that, he stated that the villagers had gathered and had threatened the accused to come out with the truth. In that context, we have to examine the worth of the alleged confession. It is well settled that before a confession is acted upon, the court must be satisfied that it is voluntary and truthful. Unless it is proved to the satisfaction of the court that the confession is voluntary, the same cannot be acted upon. In the instant case, the prosecution is relying upon two joint confessions made by the appellant and the co-accused Raju. One is before the villagers of which PW-10 is a witness and the other is before the police, finding its reference in the memorandum of arrest (Ex. Ka-16), of which also, PW-10 is a witness. In so far as the latter is concerned, that would be hit by section 25 and 26 of the Evidence Act. In so far as the former is concerned, from the testimony of PW-10 it is clear that it was made when the villagers threatened them. Further, PW-10 does not state as to who stated what. May be the confession was by the co-accused Raju only; whereas, the appellant may be a mute spectator nodding in approval to save himself from the wrath of the villagers around. Be that as it may, in that kind of a scenario, the alleged confession cannot be considered voluntary. Notably, making of any such confession has been denied by the appellant in his statement under section 313 CrPC recorded on 7.11.2014. For all the above reasons, the so-called extra judicial confession cannot form the basis of conviction. 24. At this stage, we may observe that we have noticed in the prosecution evidence that the informant party had a joint living. PW-4, the patriarch, had multiple sons and multiple grandchildren. Admittedly, the temple had free access to public. Co-accused Raju was a help and was a part of that commune. In that kind of a scenario, who did it is difficult to prove. More so, when the room from where the body was recovered was locked. No doubt, explanation has come in the prosecution evidence that the key of that lock was available as it used to be hanged on the hook placed on the wall. But, PW-4 says that the key was in the control of PW-3. More so, when the room from where the body was recovered was locked. No doubt, explanation has come in the prosecution evidence that the key of that lock was available as it used to be hanged on the hook placed on the wall. But, PW-4 says that the key was in the control of PW-3. Interestingly, the motive for the crime i.e. rape or its attempt, has not at all been substantiated by medical or forensic evidence and there is no incriminating evidence such as semen stain or blood or hair of the appellant found on the spot to connect the appellant with the crime by forensic evidence. In these circumstances, and for all the reasons recorded above, we have no hesitation in holding that the prosecution has not only failed to prove that the chain of incriminating circumstances was complete, pointing towards the guilt of the accused-appellant, but has even failed to prove those incriminating circumstances as against the accused-appellant beyond the pale of doubt. 25. Consequently, the appeal is allowed. The judgment and order of conviction and sentence recorded by the trial court is set aside. The appellant is acquitted of the charges for which he has been tried and convicted. The appellant 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. 26. Let a certified copy of this order along with the record be sent to the court below for information and compliance.