JUDGMENT : RAMESH SINHA, J. 1. Since the above-captioned appeals arise out of a common factual matrix and impugned judgment, this Court is disposing of the same by a common judgment. 2. These criminal appeals preferred under Section 374(2) of the Cr.P.C. are directed against the impugned judgment of conviction and order of sentence dated 25.06.2022 passed by the learned Additional Sessions Judge FTSC (POCSO), Kondagaon (C.G.) in POCSO Case No. 20/2019 by which the appellants have been convicted for offences under Sections 363, 376A and 302 of the IPC and sentenced them to undergo rigorous imprisonment for 07 years and to pay a fine of Rs.1,000/- in default, to further undergo rigorous imprisonment for 01 month, rigorous imprisonment for life and to pay a fine of Rs.1,000/- in default, to further undergo rigorous imprisonment for 01 month and rigorous imprisonment for life and to pay a fine of Rs.1,000/- in default, to further undergo rigorous imprisonment for 01 month. 3. Case of the prosecution, in brief, is that on 10.05.2019, the father of the deceased has made a complaint at Police Station, Farasgaon to the effect that on 09.05.2019 his daughter went out from the house while talking in her mobile phone and not returned back in the house and on the next day, the family members have searched her and found her dead body lying in the field of one Chain Singh. On the basis of said report, initially Merg No. 28/2019 (Ex.P-1) was recorded under Section 174 of the Cr.P.C. Thereafter, on the basis of merg intimation (Ex.P-1), FIR (Ex.P-28) has been registered against unknown persons for offence punishable under Section 302 of the IPC. 4. Investigating officer left for scene of occurrence and Nazri Naksha was prepared by him vide Ex.P-2. After summoning the witnesses vide Ex.P-3, inquest over the dead body of deceased was prepared vide Ex.P-4 and merg panchnama was prepared vide Ex.P.13. Dead body of the deceased was sent for postmortem to the Community Health Centre, Farasgaon vide Ex.P-26, wherein, Dr. Jyotirmay Prabhawati (PW-7) and Dr. Shailendera Kumar conducted postmortem on the dead body of the deceased vide Ex.P-14 and found following injuries: (i) 0.8 cm x 0.2 cm crescent abrasion mark on the right side of the neck at Sternocleidomastoid muscle region which is antemortem in nature. Jyotirmay Prabhawati (PW-7) and Dr. Shailendera Kumar conducted postmortem on the dead body of the deceased vide Ex.P-14 and found following injuries: (i) 0.8 cm x 0.2 cm crescent abrasion mark on the right side of the neck at Sternocleidomastoid muscle region which is antemortem in nature. (ii) Postmortem ant bite marks on the right cheek, on the neck and on the left shoulder and middle of the chest. The doctors opined that cause of death is Asphyxia & spinal cord injury due to smothering & manual strangulation. Viscera was preserved and sent to FSL to find out any intoxication manner being homicidal in nature. 5. Statement of witness Shiv Kumar Markam (PW-5) was recorded vide Ex.P-5, who has stated that he has seen appellants taking away the deceased along with them in a motorcycle. During the investigation, after getting the location through cyber cell of the phone number of accused Kamlesh Netam, who made calls on the date of incident on the mobile phone of the deceased and on that basis accused Kamlesh Netam was called for interrogation and his memorandum statement was recorded vide Ex.P-6, in which he has admitted that he and co-accused/appellant Sonaram Netam called the deceased and committed rape on her and thereafter killed her. Thereafter, accused were arrested and arrest memos were prepared vide Exs.P-11 and P-12. On the basis of memorandum statement of accused Kamlesh Netam, Sections 363, 376, 34 of the IPC and Section 04, 06 of the POCSO Act have been added. 6. One jio mobile phone with Jio SIM No. 7000702320 was seized at the instance of accused Sonaram Netam vide Ex.P-7, one touch screen mobile with Idea SIM No. 7354182741 and a full sleeve blue colour TShirt with some stain over right sleeve were seized at the instance of accused Kamlesh Netam vide Ex.P-8. On the basis of memorandum statement of accused Kamlesh Netam one Black colour Hero Splendor Motorcycle bearing No. CG04-OW-5214 with key and in running condition was seized from one Sunil Netam vide Ex.P-9 and one white colour dupatta & a pair of sandal were seized vide Ex.P-10. Accused Kamlesh Netam was arrested and arrest memo was prepared vide Ex.P-11 and accused Sonaram Netam was arrested and arrest memo was prepared vide Ex.P-12. Accused Kamlesh Netam was arrested and arrest memo was prepared vide Ex.P-11 and accused Sonaram Netam was arrested and arrest memo was prepared vide Ex.P-12. Memo for query of seized T-shirt of accused Kamlesh Netam and its query report was prepared vide Ex.P-15 and meno for query of seized dupatta of deceased and its query report was prepared vide Ex.P-16. One black colour keypad micromax mobile with SIM of Idea Company No. 9575481520, bloodstained soil and plain soil were recovered from the spot vide Ex.P-26. Dakhil Kharij Register was seized vide Ex.P-33 and vide Ex.P-34 following articles were seized: (i) 02 vaginal swab of the deceased in a seal packed bottle. (ii) 02 vaginal slide of the deceased in a seal packed bottle. (iii) One pink colour kurti of the deceased in a seal packed packet. (iv) One green colour legging of the deceased in a seal packed packet. (v) One brown colour underwear of the deceased in a seal packed packet. (vi) One orange colour simij of the deceased in a seal packed packet. (vii) Whole stomach with contents of the deceased in a seal packed box. (viii) Piece of lung, liver, heart, kidney and spleen of the deceased in a seal packed box. (ix) Piece of brain of the deceased in a seal packed box. (x) Sample of NS solution in a seal packed box. 7. Bloodstained soil and plain soil seized from the place of incident and T-Shirt with stain like blood of the accused were sent for chemical examination to Regional Forensic Science Laboratory, Jagdalpur vide Ex.P-38, which were received vide Ex.P-41 and whole stomach with contents of the deceased in one seal packed box; piece of lung, liver, heart, kidney and spleen of the deceased in a seal packed box; piece of brain of the deceased in a seal packed box and sample of NS solution in a seal packed box were also sent for chemical examination to Regional Forensic Science Laboratory, Jagdalpur vide Ex.P-39 which were received vide Ex.P-42 and therefrom, FSL reports were received vide Ex.P-45 and Ex.P-46 respectively. 8. Memo for taking blood samples of accused for DNA test was issued vide Ex.P-37 and thereafter, 02-02 ml blood samples of each accused were taken and preserved in two separate EDTA Voil vide Ex.P-17 by Dr. Pranati (PW-9). 8. Memo for taking blood samples of accused for DNA test was issued vide Ex.P-37 and thereafter, 02-02 ml blood samples of each accused were taken and preserved in two separate EDTA Voil vide Ex.P-17 by Dr. Pranati (PW-9). Thereafter, vide Ex.P-40 following articles were sent to State Forensic Science Laboratory, Raipur for conducting DNA test: (i) 02 vaginal swab of the deceased in a seal packed bottle. (ii) 02 vaginal slide of the deceased in a seal packed bottle. (iii) One pink colour kurti of the deceased in a seal packed packet. (iv) One green colour legging of the deceased in a seal packed packet. (v) One brown colour underwear of the deceased in a seal packed packet. (vi) One orange colour simij of the deceased in a seal packed packet. (vii) 02 ml blood sample of accused Kamlesh Netam in a sealed pack EDTA voil. (viii) 02 ml blood sample of accused Sonaram Netam in a sealed pack EDTA voil. The aforesaid articles were received by State Forensic Science Laboratory, Raipur vide Ex.P-43 and DNA test report has been given vide Ex.P-44. 9. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After usual investigation, the accused/appellants were chargesheeted for offence under Sections 363, 376A, 376D, 302 of the IPC and under Section 4 & 6 of the POCSO Act and charge-sheet No. 48/2019 dated 07.08.2019 was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the Additional Sessions Judge FTSC (POCSO) Kondagaon, received the case on transfer for hearing and disposal in accordance with law. 10. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 13 witnesses and exhibited 48 documents. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. The defence has not examined any witness, however, has exhibited two documents i.e. Ex.D-1 and Ex.D-2. 11. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellants who have committed aforesaid offence, convicted and sentenced them in the aforementioned manner, against which the these two appeals under Section 374(2) of the Cr.P.C. have been preferred by the appellants. 12. 11. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellants who have committed aforesaid offence, convicted and sentenced them in the aforementioned manner, against which the these two appeals under Section 374(2) of the Cr.P.C. have been preferred by the appellants. 12. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 13. Mr. Mukesh Shrivastava, learned counsel for the appellant Kamlesh Netam submitted that there is no eyewitness of the incident and all the prosecution witnesses have not supported the case of prosecution and have been turned hostile and the conviction of the appellants is solely based on the DNA report, which was not done in a proper manner. He submits that Dr. Pranati (PW-9) in her examination-in-chief has stated that on 21.06.2019 before me in the presence of witnesses 02-02 ml blood of accused Kamlesh Netam and Sonaram Netam were taken and preserved in two separate E.D.T.A. vail vide Ex.P.17 and the said samples were taken by blood technician, whereas in cross-examination, she has deposed that though sample was collected by technician, but she don’t know the name of technician. She further deposed that it is correct to say that the witnesses mentioned in Ex.P-17 were brought by the police and signatures of accused Kamlesh Netam and Sonaram Netam are missing in Ex.P-17. It is correct to say that script of Ex.P-17 was not prepared by her and it was prepared and brought by the policemen beforehand, thus, irregularities have been committed while collecting the blood sample. He further submits that no specific questions have been put from the accused about the DNA sample collection and DNA report, while his examination under Section 313 of Cr.P.C. Thus, looking to the entire facts and circumstances, the examination of the accused under Section 313 of Cr.P.C. is faulty. He placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595 , wherein the Hon’ble Supreme Court in paragraphs 8, 9 and 10 held as under: “8. He placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595 , wherein the Hon’ble Supreme Court in paragraphs 8, 9 and 10 held as under: “8. Though various points were urged in respect of the appeal, the primary stand was that incriminating materials were not put to him in examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the “Code”). Learned counsel for the respondent-State on the other hand submitted that the accused is a historysheeter, has a long criminal record and therefore there is no scope for interference in this appeal. According to him all the relevant questions were put during examination under Section 313 of the Code. 9. “12. The purpose of Section 313 of the Code is set out in its opening words “for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.” In Hate Singh, Bhagat Singh vs. State of Madhya Pradesh, AIR 1953 SC 468 it has been laid down by Bose, J. that the statements of accused persons recorded under Section 313 of the Code “are among the most important matters to be considered at the trial.” It was pointed out that: “8.........he statements of the accused recorded by the committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. 13. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 14. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 14. The word ‘generally’ in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 15. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed: “30.........it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder........Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. 10. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder........Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. 10. In order to appreciate the stand relating to not putting the relevant questions during the examination under Section 313 of the Code, the factual scenario needs to be noted. The examination under Section 313 of the Code the same reads as follows: “Q. It is stated on the basis of statement of witnesses that on 31.7.1982 at around 8.30 A.M. Rameshwar Mistry was killed in Sirjua Diara by firing shot from rifle? What do you have to say about it? A. No, I was falsely implicated. Q. It is also stated that accused kept the dead body of Rameshwar Mistry, Rajendra Mistry and Bramhadeo Singh on boat and they took Lalit Narayan Singh Kailash Singh, Chalitar Singh, Anil Sahib and Biranchi Das on the boat and killed Kailash Singh by proceeding further and threw the dead body in river by cutting it what do you have to say? A. Police has implicated me. Safi Alam, S.P. of Khagaria committed murder on 15 April, 1980 in the evening by firing shot. My servant has filed case on him. My uncle th filed case on police S.D.O. from that day, he started implicating me in the case and started saying me to withdrew the case. The police which comes, states the same thing. I was not allowed to study at that time. I was studying. Due to this reason, I was falsely implicated. Q. I heard the statement of witnesses. Do you have to say anything in defence? A. I write it later on. Q. It is also evident that you fired shot from the rifle at the arm of Amin.” It is true as contented by learned counsel for the appellant that no incriminating materials were put to the accused under Section 313 of the Code. There is no accusation specifically put in question during examination as quoted above. It only refers to victim of kidnapping. So far as the question No. 3 is concerned same relates to PW-10. He did not say that he had seen gun fired by the appellant.” 14. Mr. There is no accusation specifically put in question during examination as quoted above. It only refers to victim of kidnapping. So far as the question No. 3 is concerned same relates to PW-10. He did not say that he had seen gun fired by the appellant.” 14. Mr. Raza Ali, learned counsel for the appellant Sonaram Netam submitted that the entire story of the prosecution is based on circumstantial evidence and the judgment of conviction passed by the trial Court is only on the basis of DNA report i.e. Ex.P-44. He submits that the conviction cannot be based solely on DNA report. The prosecution has allegedly taken the sample of the vaginal slide of the deceased, which is not mentioned anywhere in the entire charge-sheet and documents of the trial Court and thereafter taken the sample of accused/appellant on 21.06.2019, the gap is more than one month and sent the same for DNA test vide memo Ex.P-40 and thereafter the DNA report was given vide letter dated 30.07.2019 marked as Ex.P-44. The technique which has been used is for matching of the strands and out of 24 Alleles 8 got matched with the main accused Kamlesh Netam and 7 got matched with accused Sonaram Netam. He further submitted that the samples has been collected belatedly and there is no any documents to show that on which date and by which documents the prosecution collected the sample of vaginal slide of the deceased as in the entire P.M. report and queries including the dead body panchnama nowhere is mentioned about the collection of vaginal slide of deceased and in the PM report four samples collected from the dead body in which there is no mention about the vaginal slide or vaginal swab. Further the delay in collection of samples from the accused and that too without any explanation that where the said samples were collected makes the DNA report disputed and doubtful. He further submits that there is specific process for DNA profiling methodology and statistical analysis as also the collection and preservation of DNA evidence, but, in the present case, it was missing. He further submits that there is specific process for DNA profiling methodology and statistical analysis as also the collection and preservation of DNA evidence, but, in the present case, it was missing. In support of this contention, he placed reliance on the judgment of Hon’ble Apex Court in the matter of Rahul and Others vs. State of Delhi Ministry of Home Affairs and Another, (2023) 1 SCC 83 , wherein the Hon’ble Supreme Court has held as under: “DNA Profiling Methodology DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victims and/or suspects with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA Profile unique to an Individual (except monozygotic twin). Similarly, STRs present on Y chromosome (Y-STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoollpermic or vasectomized” male. Cases In which DNA had undergone environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size. DNA Profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available In the laboratory. The analysis principles, however, remain similar, which include: 1. isolation, purification and quantitation of DNA 2. amplification of selected genetic markers 3. visualising the fragments and genotyping 4. statistical analysis & interpretation. In mt-DNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples: ............ Statistical Analysis Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison: (1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched. Statistical Analysis Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison: (1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched. (2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources. (3) Inconclusive: The data does not support a conclusion Of the three possible outcomes, only the “match” between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population. In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken Into consideration while reporting a match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to support the match. Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in. a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victims, suspects, scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling.” xxx xxx xxx xxx xxx xxx 32. It is true that PW-23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. PW-23/A, however mere exhibiting a document, would not prove its contents. It is true that PW-23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. PW-23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012 and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion. 15. Mr. Ali also submitted that in the entire statement of the accused recorded under Section 313 of the Cr.P.C. the trial Court has not put the specific question regarding the DNA i.e. the trial Court has not asked the accused that the DNA report is against the accused or some of the strands of Alleles of DNA got matched with deceased. The trial Court has simply put the question that the DNA report is exhibited as Ex.P-44 what do you want to say, the said question does not fulfill the mandatory requirement as contemplated under Section 313(1)(b) because the said clause starts with the word “Shall” and therefore the same is mandatory and the non-compliance of the same would vitiate the entire trial. In this regard, he placed reliance on the judgment of Hon’ble Apex Court in the matter of Asraf Ali vs. State of Assam, (2008) 16 SCC 328 . The relevant paragraph is 13, which reads as follows: “13. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. The relevant paragraph is 13, which reads as follows: “13. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh vs. The State, AIR 1976 SC 2140 , while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.” In the present case also the trial Court failed to comply with same and therefore the question which has not been put to the accused under Section 313 of Cr.P.C. cannot be used against the accused for conviction. 16. Mr. Recording of a statement of the accused under Section 313 is not a purposeless exercise.” In the present case also the trial Court failed to comply with same and therefore the question which has not been put to the accused under Section 313 of Cr.P.C. cannot be used against the accused for conviction. 16. Mr. Ali further submitted that in the entire PM report there is no evidence of rape with the deceased, further the Doctor who has conducted the Post Mortem has specifically in his deposition stated that there is no sign of rape, but as alleged the sample of vaginal slide of deceased has been taken for DNA matching with the accused blood sample and that too after the lapse of one month and therefore there is no possibility to matching of DNA from the vaginal slide of deceased and accused blood sample. It is pertinent to mention that there is no any documents which shows that the sample of vaginal slide of deceased was ever taken. 17. Mr. Ali contended that the entire prosecution case is rest on the circumstantial evidence and for which the prosecution have to establish the same beyond all reasonable doubt, but the prosecution has failed to prove the same. Shivkumar Markam (PW-5) is the witness which has been shown as last seen witness, but the said witness has not supported the case of the prosecution and has been turned hostile and denied the entire averments and statements. Further the other witnesses has also not supported the case of the prosecution case i.e. Ghadwaram Markam (PW-4) and Lakhanlal Nag (PW-6) are the witnesses of the memorandum and seizure they have also not supported the case of the prosecution and the other witnesses i.e. interested witnesses or the family members of the deceased have also not stated against the appellant. In this regard he placed reliance in the same judgment which has been quoted above i.e. Rahul, Ravi Kumar, Vino @ Chhotu (supra). The relevant paragraph is 33, which reads as under: “33. Thus, having regard to the totality of circumstances and the evidence on record, it is difficult to hold that the prosecution had proved the guilt of the accused by adducing cogent and clinching evidence. The relevant paragraph is 33, which reads as under: “33. Thus, having regard to the totality of circumstances and the evidence on record, it is difficult to hold that the prosecution had proved the guilt of the accused by adducing cogent and clinching evidence. As per the settled legal position, in order to sustain conviction, 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 only and none else. The circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. As demonstrated earlier, the evidence with regard to the arrest of the Appellants-accused, their identification, discoveries and recoveries of the incriminating articles, identity of the Indica Car, the seizures and sealing of the articles and collection of samples, the medical and scientific evidence, the report of DNA profiling, the evidence with regard to the CDRs etc. were not proved by the prosecution by leading, cogent, clinching and clear evidence much less unerringly pointing the guilt of the accused. The prosecution has to bring home the charges levelled against them beyond reasonable doubt, which the prosecution has failed to do in the instant case, resultantly, the Court is left with no alternative but to acquit the accused, though involved in a very heinous crime. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise.” In the present case also the prosecution has not established the chain of circumstantial evidence and also not prove the last seen and failing to which the accused are entitled for acquittal. 18. Mr. 18. Mr. Ali also contended that the prosecution has produced the Ghadwaram Markam (PW-4) as Memorandum and seizure witnesses, but has not supported the case of the prosecution and the public prosecutor has declared him hostile only to the extent of physical body description of deceased, as the same has been mentioned in the deposition while declaring the said witness as hostile and the public prosecutor has not declared the said Shiv Kumar Markam (PW-5) hostile in respect of memorandum and seizure and therefore the statement of the PW-4 namely Ghadwaram is binding on the prosecution and in this regard he placed reliance on the judgment of Hon'ble Apex Court in the matter of Raja Ram vs. State of Rajasthan, 2005 (5) SCC 272. The relevant paragraph is 9 which is quoted herein-below: “9. But the testimony of Public witness 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw Public witness 5 making the deceased believe that unless she puts the blame on the Appellant and his parent she would have to face the consequences like prosecution proceedings. It did not occur to the public prosecutor in the trial court to seek permission of the court to hear Public witness 8 as a hostile witness for reasons only known to him. Now, it is, the evidence of Public witness 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how Public witness 8's testimony can be sidelined.” 19. Mr. Ali further contended that the trial court has also convicted the appellants for the offences under Section 6 of Protection of Children from Sexual Offences Act, 2012 and for which the trial court has mainly relied on the statement of Kamta Prasad Shadilya (PW-13), who is teacher and produced the Dakhil Kharij register and in this regard the submission of the appellant is that the said witness has already accepted in the cross examination that the entries were not made by him and further admitted that he has no knowledge about on whose instruction the said entry of date of birth was made. Further the father of the prosecutrix i.e. Ramprasad Netam (PW-1) has stated in his examination of chief that he has no knowledge about the date of birth of the deceased and on that point the prosecution has not declared the PW-1 hostile and therefore the same is also binding on the prosecution in the light of judgment quoted above in Raja Ram (supra). Further the prosecution has also not conducted the osfication test of the deceased to established the same and therefore conviction under the POCSO Act is also not sustainable and entitled the accused for acquittal. 20. On the other hand, Mr. Gagan Tiwari, learned Deputy Government Advocate, appearing for the State/respondent would submit that the case of the prosecution is based on the circumstantial evidence. The evidences starts from the call details. On the date of incident i.e. 09.05.2019, appellant Kamlesh Netam has called on the number of the deceased, so they were known to each other. He further submits that on the basis of memorandum of the accused, seizure of dupatta & a pair of sandal of the deceased and T-Shirt of accused Kamlesh Netam were made, in which as per the FSL report, bloodstained was found and there is no explanation about the same. So far as objection in relation to taking vaginal swab and vaginal slide of the deceased was not exhibited is concerned, Dr. Jyotirmay Prabhawati (PW-7) in paragraph 4 of her examination-in-chief has stated about the same, which was neither crossed nor controverted and the learned trial Court in paragraph 46 of the judgment has deal with commission of rape. He also submits that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants for offence as mentioned above and therefore, the appeals deserve to be dismissed. 21. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 22. Ramprasad Netam (PW-1) is the first informant of the case and the father of the deceased. In his examination-in-chief he states that he do not know the accused presented through video conferencing. The deceased victim was my daughter. The incident happened four-five months back from today. It is about eight or nine O’clock in the night, we went to sleep after having dinner at home. In his examination-in-chief he states that he do not know the accused presented through video conferencing. The deceased victim was my daughter. The incident happened four-five months back from today. It is about eight or nine O’clock in the night, we went to sleep after having dinner at home. I do not know how long the victim left the house in the night. Her elder sisters Savitri and Hembati were sleeping with the victim. On waking up in the morning, I went to their room and saw that the victim was not on the bed, then I asked Savitri and Hembati where the victim was. Savitri and Hembadi did not tell me anything regarding leaving the victim’s house. In the morning, they inquired around and could not find anywhere, it was around 7.00 am in the morning, the sarpanch of the village Ghadwaram came to my house and told that someone was sleeping in the nearby field. When we went to the filed after hearing the news, we saw that the victim was lying dead, blood was coming out of her mouth. Seeing the dead body of the victim, I went to Farasgaon Police Station and informed about the death of my daughter, on which Merg Information (Ex.P-1) was recorded and thereafter, policemen came to the village after I made the report, I showed the policemen the place where the dead body of the victim was lying. The police prepared a visual map of the scene of the incident at my instance vide Ex.P-2. Police had prepared panchnama over the dead body of the deceased. I don’t know the date of birth of the victim. My daughter died after being hit by some unknown person, later on I came to know that there is a person named Umesh from Borgaon. Pointing towards the accused present in the video conferencing, witness told that he is the accused. 23. In his cross-examination, he has stated that it is correct to say that I do not remember the date of birth of the victim, it is fair to say that I am illiterate, it is fair to say that I do not even remember my own date of birth. It is correct to say that I sleep in a separate room with my wife in my house and my children sleep in separate room. It is correct to say that I sleep in a separate room with my wife in my house and my children sleep in separate room. It is correct to say that the victim also used to sleep separately with her sisters. It is correct to say that on the date of incident, when the victim left the house, even the sisters who slept with her do not know. It is correct to say that on the second day the dead body was found in Ghadavaram’s field and it was found that she had been killed by some unknown person. It is correct to say that I not seen the person who killed my daughter. It is correct to say that I had lodged a report against the unknown person, later the policemen caught the accused and brought them with their mobile phones, then I came to know about the accused. 24. Savitri Bai (PW-2), who is elder sister of the deceased has stated in her examination-in-chief that I recognize both the accused present through video conferencing. The name of one of them is Kamlesh Netam, who is wearing a dark blue shirt today and does not know the name of other, but he is a resident of village Nalajhar. The victim was my younger sister. The incident is of May 2019. In the night, I had slept with the deceased and Hembati after having dinner. I do not know where the victim had left in the night. I woke up in the morning and rang her mobile number several times, but she did not receive the call. Today I do not remember what was the number of that mobile. Sarpanch’s farm is about 100 m away from my house. From there the sarpanch called and told that a person is sleeping in my field. Hearing the sound, I went to the spot and saw that my sister was lying unconscious under the mango tree, went close and shook her and caught hold of her, she was already dead and blood was coming out of her mouth, her body was fully clothed. Mobile was held in his left hand, after that I started crying holding it. 25. Hemlata (PW-3), in her examination-in-chief has stated that I do not recognize the present accused. I also know the deceased victim. I don’t know anything about the incident. Mobile was held in his left hand, after that I started crying holding it. 25. Hemlata (PW-3), in her examination-in-chief has stated that I do not recognize the present accused. I also know the deceased victim. I don’t know anything about the incident. It is about six months back from today, our farm is in village Saraipal, my husband had gone to see the crop in the field at 8.00 am. My husband saw the dead body of the victim lying in the field and told her family members, then they came to spot and started crying an crying. She was declared hostile. 26. Ghadwaram Markam (PW-4) in his statement has stated that I do not recognize the present accused, I know the deceased victim. The incident is of May 2019, I went to my field at 07.00-8.00 in the morning to see the crop, seeing a girl lying in a sleeping condition on my field under a mango tree, I called Savitri, then Savitri and her parents came to me and said that out girl victim did not come back home since evening, then I went with them to the sleeping place under the mango tree and saw that her family members recognized the victim. She was lying in a dead condition, then we got scared and informed villagers. This witness was also declared hostile. 27. Shiv Kumar Markam (PW-5), in his examination-in-chief has stated that I do not recognize the accused present through video conferencing I do not even know the deceased victim. I do not know anything about the incident. Police had not interrogated me and had not taken my statement. At this point permission was sought by Special Public Prosecutor declaring him as an antagonist on the point of physical relationship, to ask leading questions, permission was granted after observing the case. In paragraph 3 of his cross-examination, he has stated that I know Devnath, it is correct to say that on the night of 09.05.2019 I had gone to attend the marriage of Devnath’s daughter, from there I came home on foot at about nine O’clock. It is wrong to say that when I was coming back after attending the wedding, I saw the victim standing on the side of the road taking. It is wrong to say that the I saw accused Kamlesh Netam and Sonaram Netam standing on the side of the road. It is wrong to say that when I was coming back after attending the wedding, I saw the victim standing on the side of the road taking. It is wrong to say that the I saw accused Kamlesh Netam and Sonaram Netam standing on the side of the road. It is wrong to say that Kamlesh and Sonaram are masons that’s why I know them. In paragraph 4, he has stated that it is wrong to say that when I asked the victim where she was going, she told that she was waiting for her brothers to go home. It is wrong to say that I had given my mobile number to the victim, saying that if no one came, I would drop her to home. It is wrong to say that when I started going home, the victim along with the accused went towards Nalajhar in a motor cycle. It is wrong to say that on the second day before 10.05.2019 at 11.00 pm I received a missed call on my mobile from the number 9575481520. In paragraph 5, he has stated that it is wrong to say that I work with the accused so I am not giving correct statement to save them. It is wrong to say that statement given to police vide Ex.P-5 is from the above address. This is my statement, statement was given to the police. 28. Lakhan Lal Nag (PW-6), in his statement has stated that I do not recognize the accused present through video conferencing. I know the deceased victim. It is about six-seven months ago, I am a resident of another village, there was an uproar in the village that someone had died, then I went and saw that the victim had died, the dead body was away from the village lying in the filed. In front of me, the policemen did not take action of the Naksha Panchayatnama. Notice given merg panchnama is Ex.P-3. The witness himself says that I had signed in the police station. No questioning of the accused Kamlesh Netam was done before me. There was no action of confiscation before me. At this stage, he was declared hostile and his cross-examination, he has not supported the case of prosecution. 29. Dr. Jyotirmay Prabhawati (PW-7), who has conducted postmortem on the dead body of the deceased along with Mr. No questioning of the accused Kamlesh Netam was done before me. There was no action of confiscation before me. At this stage, he was declared hostile and his cross-examination, he has not supported the case of prosecution. 29. Dr. Jyotirmay Prabhawati (PW-7), who has conducted postmortem on the dead body of the deceased along with Mr. Shailendra Kumar Bhoyar, has stated that after examining the dead body, the following facts were found: 01. External examination - dead body was lying in the state of mind, both the eyes were closed, the mouth was half open, the tongue was pressed between the two teeth, the mouth was full of blood and blood was frozen on the mouth, both the lips turned blue (cyanosis). There was blood on the teeth, blood had come out from the nose, blood not come out from the right ear, there were spots of blood on the face and head. Pink color kurti, green color lehengis, brown color underwear and orange color semis were worn on the body of the dead body. 02. Stiffness was present on the body after death, there was lividity (sign) present on the back, mud was present on the hip, there was a crescent shaped scratch mark over right throat, the size of which was 0.8x0.2 cm, the said injury was before death. There was ant bite marks on the right cheek, on the neck and on the left shoulder and the middle of the chest which were postmortem in nature. 03. Internal examination – The second number bone of the throat was broken and the second and third number bone was displaced from its place, brain and spinal cord, throat and trachea, right lung, left lung were congested. The right chamber of the heart was filled with blood and the left chamber was empty. The small intestine was filled with undigested food, the large intestine was filled with feces and the bladder was filled with urine. 04. I immersed the stomach, pieces of both lungs, pieces of heart, pieces of liver, pieces of kidney, pieces of spleen in normal solution and advised for chemical examination and two vaginal swabs of his genitals, two vaginal slides were prepared and sealed and handed over to the concerned constable after advising him to do DNA test. 04. I immersed the stomach, pieces of both lungs, pieces of heart, pieces of liver, pieces of kidney, pieces of spleen in normal solution and advised for chemical examination and two vaginal swabs of his genitals, two vaginal slides were prepared and sealed and handed over to the concerned constable after advising him to do DNA test. Opinion - In our opinion, the deceased/victim died due to respiratory arrest due to compression of the mouth and nose and asphyxiation due to fracture of the bone due to compression of the throat, the nature of death was man-homicidal, which is evident from the postmortem. 30. In paragraph 7 of her cross-examination, she has stated that it is correct to say that I cannot tell which staff of Thana Farasgaon had identified the dead body. It is wrong to say that I did not get the process of identification of the deceased done by her family members. It is correct to say that I did not clearly find finger marks in relation to strangulation during the postmortem. It is correct to say that in Ex.P-14 also no evidence was found regarding rape of the deceased. In paragraph 9, she has further stated that it is correct to say that the said PM report which is separately attached in this case Ex.D-2 was typed and brought by the police station. It is true to say that Part A to A of the same is signed by me. It is wrong to say that I had written the report at Ex.P-14 after seeing the short PM report. 31. Balchand Korram (PW-8), in his statement has stated that I do not recognize the present accused. I recognize the deceased/victim. I had given my mobile number 7067680865 to the victim along with mobile and SIM. Later took back my mobile handset, the deceased kept that SIM with her. I used to take to the deceased on that number, after a few days the victim did not talk to me, I slao did not talk to her, the deceased called me on the night of Barkai Mela, on that I had gone to Barkai Mela along with Jagdamba, we met there with the deceased. Later on I came to know from the newspaper that the dead body of the deceased was lying on the field who was murdered by someone. Later on I came to know from the newspaper that the dead body of the deceased was lying on the field who was murdered by someone. He further stated that it is correct to say that the deceased/victim as was taking to me used to talk with may people. 32. Dr. Pranati (PW-9), in paragraph 2 of her statement has stated that on 21.06.2019 before me in the presence of witnesses 02-02 ml blood of of accused Kamlesh Netam and Sonaram Netam were preserved in two separate EDTA vail. The blood secured in the vail was taken by the technician which was sealed and seized. The seizure sheet is Ex.P-7, which has my signature on A to A. In her cross-examination, she has stated that it is correct to say that whatever action was taken by me was done in front of witnesses. It is correct to say that I cannot tell his name, I can tell by looking at the records. It is wrong to say that I did not do the writing of Ex.P-7 in the presence of witnesses. It is correct to say that the sample that was drawn was drawn by a technician. I do not remember the name of that technician. It is wrong to say that no blood sample was taken by the technician. 33. Sagarmati (PW-10) was a head constable posted in the Office of Superintendent of Police Cyber Cell, Police Station and District-Kondagona. On receiving requisition from the police station, Farasgaon, he has given the call details and name of owners of the mobile numbers 9575481520, 7000702320 and 7354182741 vide Ex.P-21. 34. Rukmani Mandavi (PW-11) has stated that since 2014 she is posted as Assistant Sub-Inspector in Police Station, Farasgaon. She has prepared Merg intimation No. 28/2019 on the instruction of SHO and after summoning the witnesses vide Ex.P-3, prepared inquest over the dead body of the deceased vide Ex.P-4 and bloodstained soil and plain soil were recovered from the spot vide Ex.P-26 by her. 35. Vinod Kumar Sahu (PW-12), who is the Investigating Officer of the case, has stated that I am posted as Inspector in Thana Farasgaon since February 2019. 35. Vinod Kumar Sahu (PW-12), who is the Investigating Officer of the case, has stated that I am posted as Inspector in Thana Farasgaon since February 2019. On 10.05.2019 at 9.30 pm, Ramprasad Netam was present in police station and informed that his daughter had left the house in the night without informing, while finding out around in the morning, her dead body was lying in the field of Chain Chingh’s field, in relation to which merg intimation Ex.P-1 was written by him according to the instructions of Ramprasad Netam, which has my signature on the left and after writing the merg intimation, I left for the spot, reached Saraipal ParaPusapal on 10.05.2019 at 10.25 hrs and has prepared the visual map of the incident vide Ex.P-2. Assistant Sub-Inspector, Rukmani Mandavi was also present with me on the above date, through whom notice was given to the witnesses and panchnama of the dead body was prepared in front of me, after that I had prepared an application for conducting PM of the dead body. Initially FIR Ex.P-28 was registered by him and after recording the statement of witness Shiv Kumar Markam (PW-5), who has stated that he has seen appellants Kamlesh Netam and Sonaram Netam taking away the deceased along with them in a motorcycle, accused Kamlesh Netam was called for interrogation and his memorandum statement was recorded vide Ex.P-6, in which he has admitted that he and co-accused/appellant Sonaram Netam called the deceased and committed rape on her and thereafter killed her. Thereafter, accused were arrested and arrest memos were prepared vide Exs.P-11 and P-12. On the basis of memorandum statement of accused Kamlesh Netam, Sections 363, 376, 34 of the IPC and Section 04, 06 of the POCSO Act have been added in the charge-sheet. 36. Kamta Prasad Shadilya (PW-13), who was posted as Assistant Teacher in Primary School, Saraipal (Kotwel), wherein the deceased/victim had studied. He has produced the Dakhil Kharij Register, in which date of birth of the deceased/victim is mentioned at S. No. 73 as 10.01.2002 and she was taken admission in Class-I on 20.06.2007. He has stated that I cannot tell who had entered the date of birth of the victim at number 73 in the said register. He has produced the Dakhil Kharij Register, in which date of birth of the deceased/victim is mentioned at S. No. 73 as 10.01.2002 and she was taken admission in Class-I on 20.06.2007. He has stated that I cannot tell who had entered the date of birth of the victim at number 73 in the said register. In paragraph 5, he has stated that it is correct to say that there is no document affixed for proving the date of birth mentioned in the said register. The above date of birth has not been entered by me in the year 2002. 37. The entire story of the prosecution is based on circumstantial evidence and the judgment of conviction passed by the trial Court which is based only on the DNA report i.e. Ex.P-44. 38. The first question for consideration would be, whether the trial Court has rightly taken statements of the accused under Section 313 of the Cr.P.C. or not? 39. The trial Court has put the Question No. 110 in the following manner: ^^Á’u 110 & bl lk{kh dk ;g Hkh dFku gS fd Á;ksx’kkyk dh Án’kZ ÁkfIr jlhn Án’kZ ihŒ&41 ls ihŒ&43 gS] MhŒ,uŒ,Œ ijh{k.k fjiksVZ Án’kZ ihŒ&44 gS] tks N% iUus esa gS] Á;ksx’kkyk dk ijh{k.k fjiksVZ Án’kZ ihŒ&45 ,oa 46 gS\ mRrj & ekywe ughaA** From perusal of the aforementioned question, it is clear that no specific question has been put regarding DNA sample collection and DNA report to the accused. Thus, looking to the entire facts and circumstances of the case, the examination of the accused under Section 313 of Cr.P.C. is faulty. Therefore, we hold that the trial Court has committed grave illegality while putting question under Section 313 of the Cr.P.C. as no specific question has been put to the accused/appellants. 40. The second question for consideration would be, whether the prosecution has followed the proper procedure for taking the blood samples for conducting DNA test? 41. The prosecution has allegedly taken the sample of the vaginal swab and vaginal slides of the deceased, which is not mentioned anywhere in the entire charge-sheet and there is also delay in collection of samples from the accused and that too without any explanation that wherefrom the said samples were collected and that makes the DNA report doubtful. 41. The prosecution has allegedly taken the sample of the vaginal swab and vaginal slides of the deceased, which is not mentioned anywhere in the entire charge-sheet and there is also delay in collection of samples from the accused and that too without any explanation that wherefrom the said samples were collected and that makes the DNA report doubtful. Thus, we hold that the prosecution has not followed the proper procedure for taking the blood samples for conducting DNA test. 42. The third and last question for consideration would be, whether the prosecution has established that the victim was minor at the time of incident? 43. In this regard, the prosecution has produced the Dhakil Kharij Register of the victim before the trial Court. The trial Court has recorded statement of Kamta Prasad Shadilya (PW-13). In paragraph 2 of his evidence, he has stated that he has produced the Dakhil Kharij Register, in which date of birth of the deceased/victim is mentioned at S. No. 73 as 10.01.2002 and the victim was taken admission in Class-I on 20.06.2007. He has stated that he cannot tell that who had entered the date of birth of the victim at number 73 in the said register. In Para 5 of his cross-examination, he has stated that it is correct to say that there is no document regarding birth certificate is affixed for proving the date of birth mentioned in the dakhil register. Thus, we hold that the prosecution has failed to prove the fact that the victim was minor at the time of incident. 44. In the matter of Rahul; Ravi Kumar; Vinod @ Chootu (supra) the Hon’ble Supreme Court while dealing with in detail with the issue of DNA profiling methodology and statistical analysis, as also the collection and preservation of DNA evidence, in paragraph 32 of the said judgment, observed that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. During this period, they remained in the Malkhana of the Police Station. In paragraph 33, the Hon’ble Supreme Court further held that it may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. 45. In the case in hand, the prosecution has allegedly taken the sample of the vaginal slide of the deceased, which is not mentioned anywhere in the entire charge-sheet and documents of the trial Court and thereafter taken the sample of accused/appellant on 21.06.2019, the gap is of more than one month. Under these circumstances, the possibility of tampering with the samples collected also could not be ruled out. 46. As per the settled legal position, the circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. As demonstrated earlier, the evidence with regard to the arrest of the appellants-accused, their identification, the seizures and sealing of the articles and collection of samples, statistical analysis, collection and preservation of evidence, the report of DNA profiling, the evidence with regard to the CDRs etc. were not proved by the prosecution by leading, cogent, clinching and clear evidence much less unerringly pointing the guilt of the accused. The prosecution has to bring home the charges levelled against them beyond reasonable doubt, which the prosecution has failed to do in the instant case, resultantly, the Court is left with no alternative but to acquit the accused, though involved in a very heinous crime. The prosecution has to bring home the charges levelled against them beyond reasonable doubt, which the prosecution has failed to do in the instant case, resultantly, the Court is left with no alternative but to acquit the accused, though involved in a very heinous crime. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise.” 47. In the matter of Asraf Ali (supra), the Hon’ble Supreme Court has held that Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. In the present case also, in the entire statement of the accused recorded under Section 313 of the Cr.P.C. the trial Court has not put the specific question regarding the DNA i.e. the trial Court has not asked the accused that the DNA report is against the accused or some of the strands of Alleles of DNA got matched with deceased. The trial Court has simply put the question that the DNA report is exhibited as Ex.P-44 what do you want to say, the said question does not fulfill the mandatory requirement as contemplated under Section 313(1)(b) because the said clause starts with the word “Shall” and therefore the same is mandatory and the non-compliance of the same would vitiate the entire trial. 48. Considering the above mentioned facts and evidence of Dr. 48. Considering the above mentioned facts and evidence of Dr. Jyotirmay Prabhawati (PW-7), Investigating Officer Vinod Kumar Sahu (PW-12) and Kamta Prasad Shadilya (PW-13), and also considering statements of the accused/appellants under Section 313 of the Cr.P.C. DNA report (Ex.P-44) and Postmortem report (Ex.P-26) and also considering the law laid by the Hon’ble Supreme Court in Rahul; Ravi Kumar; Vinod @ Chootu (supra) and Asraf Ali (supra), this Court comes to a conclusion, that the circumstances as relied by the prosecution are concoction and it is unsafe to rely upon the evidence led by the prosecution for the same. Thus, the conviction of the appellants by the trial court is not sustainable in the eyes of law. The trial court has committed an error in recording the conviction and sentence of the appellants. Hence, the impugned judgment of conviction and order of sentence dated 25.06.2022 passed by the trial court is liable to be set aside and is accordingly, set aside. 49. The present appeals are allowed. The Appellants-accused are acquitted from the charges levelled against them by giving them a benefit of doubt, and they are directed to be set free forthwith if not required in any other case. The appellants-Kamlesh Netam and Sonaram Netam are in jail. They are directed to be released forthwith unless wanted in any other case. 50. Keeping in view the provisions of Section 437-A Cr.P.C. the accused-appellants, namely, Kamlesh Netam and Sonaram Netam are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties each in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 51. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.