ORDER : 1. This Criminal Appeal has been filed by the sole accused, challenging the conviction and sentence imposed upon him, vide judgment dated 09.04.2019 in S.C.No.17 of 2015, on the file of the learned Sessions Judge, Mahila Court, Salem. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3......... (i) It is the case of the prosecution that the accused was separated from his wife and in order to fulfil his carnal desire, on 03.04.2014 about 3.30pm, lured the victim, who was aged about 6 years, with chocolates and took her to his house and thereafter, committed penetrative sexual assaults; that in order to prevent the victim from shouting, gagged her mouth, as a result of which, the victim died; that the accused thereafter, put the body of the victim along with the dress and underwear in a gunny bag; that on 04.04.2014, the accused put the gunny bag in his motorcycle and after removing the gunny bag and the dress materials, threw the body of the deceased, in a well near his brother's land; and that thereafter, he hid the dress materials and the underwear near a bush. (ii) It is the further case of the prosecution that PW1, the mother of the victim went in search of the victim on 03.04.2014 and since the victim could not be traced till the next morning, she lodged a complaint [Ex.P1]. On 04.04.2014, PW11, the Inspector of Police received the complaint [Ex.P1] and registered the FIR [Ex.P17] for 'Girl Missing' in Cr.No.394 of 2014. (iii) On 05.04.2014, on the information given by the Village Administrative Officer [PW7] that the body of the victim was found in a well, PW11 took steps to remove the body from the well. He prepared the Observation Mahazar [Ex.P2] and the Rough Sketch [Ex.P18]. After the body was identified by PW1, he conducted the inquest between 12.00 noon and 1.30 p.m., in the presence of the panchayatars and prepared the inquest report [Ex.P19]. He sent the body to the Government Hospital, Attur, for the conduct of postmortem, which was done by PW9, who issued the postmortem report [Ex.P9] and the final opinion [Ex.P12]. He examined the other witnesses and on examination of the postmortem doctor [PW9], he altered the offence to Sections 302 , 201 of the IPC and Section 4 of the POCSO Act. He examined the other witnesses and on examination of the postmortem doctor [PW9], he altered the offence to Sections 302 , 201 of the IPC and Section 4 of the POCSO Act. (iv) On 17.05.2014, based on secret information, when PW11 attempted to arrest the accused, he tried to escape. The accused was then apprehended and when the accused was questioned, he confessed to the crime. PW11 recorded the confession of the accused and on his confession, the admissible portion of which is marked as Ex.P25, he seized the underwear [M.O.2] and orange-coloured dress [M.O.1] of the deceased under Seizure Mahazar [Ex.P5]. Thereafter, on 17.06.2014, PW12 took over the investigation and after examination of other witnesses, he filed the final report against the accused for the offence under Sections 366, 302, 201 r/w 302 of the IPC and Section 6 r/w 5(m) of the POCSO Act, 2012, before the learned Judicial Magistrate No.II, Attur. (v) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with, and the case was committed to the Court of Session in S.C.No.17 of 2015 and was made over to the learned Sessions Judge, Mahila Court, Salem, for trial. The trial Court framed charges under Sections Sections 366, 302, 201 r/w 302 of the IPC and Section 6 r/w 5(m) of the POCSO Act, 2012 against the accused and when questioned, the accused pleaded 'not guilty'. (vi) To prove the case, the prosecution examined 12 witnesses as P.W.1 to P.W.12, marked 29 exhibits as Exs.P1 to P29 and marked 4 Material Objects as M.O.1 to M.O.4. When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The accused did not examine any witness, however, marked 3 documents as Ex.D1 to Ex.D3. When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The accused did not examine any witness, however, marked 3 documents as Ex.D1 to Ex.D3. (vii) On appreciation of oral and documentary evidence, the trial Court found that the prosecution had established its case beyond reasonable doubt and held the accused guilty of offences levelled against him and thus, convicted and sentenced him as follows: Offence under Sections Sentence imposed 366 IPC To undergo RI for 10 years and to pay a fine of Rs.5,000/-, in default to undergo SI for 6 months 6 r/w 5(m) of POCSO Act To undergo life imprisonment and to pay a fine of Rs.10,000/-, in default to undergo SI for 6 months 302 IPC To undergo life imprisonment and to pay a fine of Rs.10,000/-, in default to undergo SI for 6 months 201 r/w 302 IPC To undergo RI for 7 years and to pay a fine of Rs.5,000/-, in default to undergo SI for 6 months The sentences were ordered to run concurrently. Hence, the accused has preferred the appeal challenging the said conviction and sentence. 4. Heard, Mr.S.Suresh, learned counsel appearing for the appellant, and Mr.E.Raj Thilak, learned Additional Public Prosecutor appearing for the respondent/State. 5......... (i) The learned counsel for the appellant submitted that the entire case is based on two circumstances only viz., the circumstance of last seen spoken to by PW2 and PW3 and the circumstance of recovery of the dress material of the deceased and her underwear, on the confession of the appellant; that PW2 and PW3 are closely related to the victim's family and had a strong motive to implicate the appellant; that in any case, had they seen the appellant with the victim, they would have informed the same to PW1, the mother of the victim; and that however, the complaint does not refer to any such information, which makes their evidence doubtful. (ii) The learned counsel also relied upon the evidence of PW1 and PW5, and submitted that the arrest and recovery is doubtful, as according to PW1, the dress materials and the underwear were found near the body even on the day when the body was recovered and therefore, the seizure on 17.05.2014, on the confession of the appellant, cannot be believed. Hence, he prayed for the acquittal of the appellant. 6. Hence, he prayed for the acquittal of the appellant. 6. The learned Additional Public Prosecutor per contra submitted that the circumstances have been fully established and nothing has been elicited in the cross examination of PW2 and PW3 to discredit their testimony and hence, the circumstances of last seen has been established besides, the recovery of the dress materials of the deceased. He therefore submitted that the trial Court, was right in convicting the appellant and there is no reason to set aside the finding of guilt rendered by the trial Court. Thus, he prayed for dismissal of the appeal. 7. We have carefully considered the rival submissions and have perused all the relevant records. 8......... (i) As stated earlier, the prosecution had examined 12 witnesses. PW1 is the mother of the victim, who had lodged the complaint; PW2 is the cousin of the victim and PW3, is the sister of PW1. They both had seen the appellant taking the victim along with him on 03.04.2014. (ii) PW4 is the Mahazar witness; PW5, is the father of the deceased. PW6 is the grandmother of the deceased, who corroborates the fact of missing of the child and about the PW1 giving a complaint; PW7 is the Village Administrative Officer who had witnessed the arrest and confession of the appellant; PW8 is the Constable who had assisted the investigation; PW9 is the postmortem doctor; PW10 is the owner of the land, wherein the well from which the body of the deceased was taken, is situated; PW11 and PW12 are the investigating officers. 9. The case is based on circumstantial evidence. It is seen from the report of the postmortem doctor [PW9] and that the deceased has sustained several external injuries and in her final opinon [Ex.P12] she had opined that the deceased would appear to have died due to effects of multiple injuries with the evidence of sexual assault. Thus, the fact that the victim suffered a homicidal death cannot be disputed, in view of the circumstances and evidence of the postmortem doctor. However, the next question would be as to whether the involvement of the appellant had been established in the said crime. 10. Thus, the fact that the victim suffered a homicidal death cannot be disputed, in view of the circumstances and evidence of the postmortem doctor. However, the next question would be as to whether the involvement of the appellant had been established in the said crime. 10. The two circumstances relied upon by the prosecution as stated earlier, are a) the circumstances of last seen spoken to by PW2 and PW3; and b) the recovery of the underwear and the dress materials of the deceased, on the confession of the appellant after his arrest on 17.05.2014. 11. As regards the recovery, we find from the evidence of PW1 that the dress of the deceased and her underwear were seized by the police on the same day, when the body was recovered. The relevant portion reads as follows: Similarly, PW5, the father of the deceased had stated as follows: 12. It is the prosecution case that the body was recovered on 05.04.2014 and the appellant was arrested on 17.05.2014. In the light of the evidence of PW1 and PW5, we are unable to accept the prosecution case that the dress and underwear were seized on the confession of the appellant and hence, the circumstance of recovery is of no avail to the prosecution. 13. As regards the evidence of PW2 and PW3, we find that both of them were closely related to the deceased. PW2 is the cousin sister of the deceased and PW3 is the maternal aunt of the deceased. PW2 though had claimed that on 03.04.2014 she saw the appellant taking the deceased along with him at 4.00 p.m., she did not disclose this fact to PW1 or to anybody else. Similarly, PW3, also had not disclosed the fact that she saw the appellant with the deceased at 3.30 p.m., on 03.04.2014 to anybody. The statements of these two witnesses were sent to the Court only on 17.10.2014, as per the investigating officer. 14. The evidence of these two witnesses does not inspire confidence for more than one reason. Had they really seen the appellant with the deceased, the information would have been disclosed to the police even while lodging the complaint. It is also the evidence of the investigating officer that several persons including the appellant were enquired between 05.04.2014 and 17.05.2014. 14. The evidence of these two witnesses does not inspire confidence for more than one reason. Had they really seen the appellant with the deceased, the information would have been disclosed to the police even while lodging the complaint. It is also the evidence of the investigating officer that several persons including the appellant were enquired between 05.04.2014 and 17.05.2014. If PW2 and PW3 had disclosed the said information, there is no necessity for the investigating officer to conduct a roving enquiry as to the involvement of any other person. 15. Thus, we find that besides the fact that the circumstances have not been conclusively established, it does not form a complete chain so as to point out only to the guilt of the accused. The prosecution, therefore, in our view has failed to establish its case. Hence, the judgment of the trial Court, convicting the appellant is liable to be set aside. 16. Accordingly, the Criminal Appeal is allowed. The conviction and sentence imposed upon the appellant in S.C.No.17 of 2015 dated 09.04.2019, on the file of the learned Sessions Judge, Mahila Court, Salem, are set aside. The appellant is acquitted of all the charges and directed to be released forthwith, unless his presence is required in connection with any other case. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged. Consequently, the connected Criminal Miscellaneous Petition is closed.