JUDGMENT : Robin Phukan, J. Heard Mr. J. Tsering, learned counsel for the appellant and also heard Ms. T. Jini, learned Additional Public Prosecutor, Arunachal Pradesh, appearing for the State respondent and Jumgam Jini, learned Legal Aid Counsel for the respondent No.2. 2. This appeal, under Section 374(2) of the Code of Criminal Procedure, is directed against the judgment, dated 10.01.2024, and order of conviction, dated 24.01.2024, under Section 376 and 302 IPC, dated 24.01.2024 in Sessions Case No.8/2013, whereby the learned Sessions Judge, Bomdila, West Kameng District (trial court hereinafter), convicted the appellant, namely, Passang Tashi @ Shanu and sentenced him to suffer 10 years of rigorous imprisonment for the offence under Section 376 IPC, and also sentenced him to pay a fine of Rs.10,000/- with default stipulation and further, sentenced him to suffer imprisonment for life and also to pay a fine of Rs.20,000/- for the offence under Section 302 IPC with default stipulation. The Factual Matrix:- 3. The background facts, leading to filing of the present appeal, are briefly stated as under:- “Shri Nawang Ngurup, the informant of Jang P.S. Case No.07/2012, is a resident of village- Zungbatse, under Jang P.S. of Tawang District, on 28.08.2012, in the evening, found his daughter, Smt. X (name withheld), aged 15 years, missing. He then reported the news of missing of his daughter to his relatives and villagers, and he also conducted search during the whole night of 28.08.2012, in and around all the probable places of his village, and in the nearby village, but he failed to trace her out. Then in the morning of 29.08.2012, the dead body of his daughter was found nearby the jungle of Shyaro village, near Ngopseng Pho, in between Shyaro and Zungma village, under Lhou Circle, with blood stains, injury marks on her person. He suspected that some miscreants have tortured and killed her. Thereafter, Nawang Ngurup had lodged one FIR with the Officer-in-Charge, Jang Police Station, on 29.08.2012, upon which Jang P.S. Case No.07/2012, under Section 302 IPC was registered and the Officer-in-Charge himself had taken up the investigation. During the course of investigation, the Investigating Officer (IO) had visited the place of occurrence, examined the witnesses and held inquest on the dead body of the deceased and also sent the same for post-mortem examination. During the course of investigation, the Investigating Officer (IO) had visited the place of occurrence, examined the witnesses and held inquest on the dead body of the deceased and also sent the same for post-mortem examination. Thereafter, he caused arrest of suspects, namely, Raju Lama, Gor Bahadur Sonar @ Ratan, Dil Bahadur Tamang @ Poppu, Sri Suresh Gurung, Sri Tenzin, Sri Kalu Tamang, Passang Tashi, Miss Jashi Yangchin and Sagar Sonar @ Kaddu and forwarded them to judicial custody. He then collected the P.M. report of the victim. He had also collected blood sample of all the suspects, and forwarded the same to the FSL, along with vaginal swab of the victim, collected during her the post mortem examination, and thereafter, he has collected the report. Then on completion of investigation, he laid charge-sheet against the accused Passang Tashi, Gor Bahadur Sonar, Raju Lama, Dil Bahadur Tamang, Suresh Gurung, Tenzin, Kalu Tamang and Sri Sagar Sonar to stand trial in the Court, under Section 376 /302/34 IPC, before the Court of learned District & Sessions Judge, Yupia. Thereafter, the learned Sessions Judge, Yupia, complying with the provision of Section 209 Cr.P.C., and after hearing learned Advocates of both the parties, had framed charges against the accused Passang Tashi, under Section 376 IPC, read with Section 302 /34 of the IPC and against rest of the accused, namely, Gor Bahadur Sonar, Raju Lama, Dil Bahadur Tamang, Suresh Gurung, Tenzin, Kalu Tamang and Sagar Sonar under Section 302 /34 IPC, and on being read and explained over the charges to the accused persons, they pleaded not guilty and claimed to be tried. Thereafter, the prosecution side had examined as many as 23 nos. of witnesses and also exhibited as many as 17 documents as P-Exhibit-1 to P-Exhibit-17 and also P-Exhibit-(I) to P-Exhibit- (VI) and thereafter, hearing learned Advocates of both the parties, the learned Sessions Judge, Bomdila, to which the case was subsequently transferred from the Court of learned Sessions Judge, Yupia, found the charges under Section 376 and 302 IPC proved against the accused Passang Tashi and accordingly convicted and sentenced him as aforesaid. However, the learned Sessions Judge, Bomdila, had acquitted rest of the accused persons on benefit of doubt.” The Grounds for Appeal:- 4. However, the learned Sessions Judge, Bomdila, had acquitted rest of the accused persons on benefit of doubt.” The Grounds for Appeal:- 4. Being aggrieved, the appellant Passang Tashi has preferred the present appeal on the following grounds:- (i) That, the prosecution side could not examine even a single independent witness, who made any whisper and adverse statement against the appellant. (ii) That, it is settled proposition of law that conviction recorded solely on the basis of DNA report, cannot be accepted in isolation as the sole piece of evidence to record conviction. (iii) That, conviction of the appellant was based upon the 2 nd FSL report dated 18.03.2013, which does not have any evidentiary value. (iv) That, no seizure witness was examined by the prosecution to establish the fact that the blood samples, sent to the FSL, Guwahati for DNA analysis, were indeed seized from the appellant and as such, the conviction of the appellant solely on the basis of 2 nd FSL report is bad in law. (v) That, the integrity of exhibits and control samples must be safeguarded from the moment of seizure, up to completion of examination, by maintaining the chain of custody, right from the time of taking of the samples, to the time of packing, sealing and labeling. But, in the instant case, the recollection of samples of the appellant was done on 14.02.2013, at the police station and no independent witnesses were present besides the medical practitioner and police personnel and no record of panchnama, cataloguing the custody of the samples was maintained, leaving enough space for the possibility of contamination and concomitant prospect of diminishment of the control samples and as such, the DNA report prepared from such samples cannot be relied upon. (vi) That, the first sample of the appellant and the control samples of the victim was collected on 29.08.2012, at District Hospital, Tawang, however, the control samples were sent to the FSL, Guwahati on 06.09.2012 and there is delay in sending the samples and this delay remained unexplained and as such, the possibility of contamination and concomitant prospect of diminishment in value, cannot be ruled out, as the DNA analysis was conducted on the control samples received on 06.09.2012, are inadmissible. (vii) That, the second FSL report, dated 15.03.2013, reveals that even the blood samples were taken for the second time on 14.02.2013, however, the DNA analysis report furnished before the learned Trial Court states that the samples were received on 06.09.2012, meaning thereby the fresh sample recollected on 14.02.2013 were never used for the purpose of DNA analysis, rather the denominated and contaminated samples sent on 06.09.2012 is taken up for DNA analysis and thereby rendering the FSL report, dated 15.03.2013 inadmissible. (viii) That, there is existence of deferring degrees of promptitude in respect of similar, if not same, natured scientific evidence, as the first sample of the appellant and the control sample of the victim were taken on 29.08.2012, and the same were sent to FSL, Guwahati on 06.09.2012 and the DNA report was received on 19.01.2013 and the second sample of the appellant was taken at Police Station, Tawang, on 14.02.2013, i.e. 6 months later, and was sent on the same day and DNA report was received on 22.03.2013, and the same is unexplained by the prosecution and as such, admitting the second DNA report, dated 18.03.2013 and rejecting the first DNA report, contradicts the veracity and integrity of the evidentiary value of the scientific evidence, so relied upon by the learned Trial Court while convicting the appellant. (ix) That, the custodian of the sample, collected from the appellant, till it reached the Forensic Science Laboratory in both the occasions were never examined as witness and neither their signatures were taken in the records and as such, the very aspect of chain of custody comes under the cloud and possibility of tempering with biological and non-biological evidence cannot be ruled out. (x) That, the forensic expert, while deposing before the Court, failed to explain as to how the calculation was arrived at, and no such report was furnished before the Court and as such, failure on the part the expert in filing the report, pertaining to the calculation, rendered the DNA report inadmissible. (xi) That, the positive DNA report can be of great significance, where there is supporting evidence, depending of course, on the strength and quality of evidence and if the DNA report is the sole piece of evidence, even if it is positive, it cannot conclusively fix the identity of the miscreant and as such, the same is liable to be set aside and quashed. (xii) That, the evidence of DNA report arises before a Criminal Court, especially when DNA report is positive, shall look for other evidence, particularly when such other evidence does not fall in line with the result of the positive DNA report or when such other evidence is in direct conflict with the opinion expressed in such positive report and such report can be used as corroborative evidence i.e. evidence to substantiate other evidence and a DNA report cannot be the sole and conclusive evidence to record conviction in a criminal case. (xiii) That, the circumstances relied upon by the prosecution, neither fully established nor are consistent with hypothesis of the guilt of the appellant and the circumstances, even if taken cumulatively, does not form a chain, so complete, that there was no escape from the conclusion that with all human probability the crime was committed by the appellant. (xiv) That, the conclusion, so arrived at by learned Trial Court that there are chronological sequence of events in the case and that the prosecution story is corroborated by witnesses, is not based upon any evidence so adduced by the prosecution witnesses as none of them had even remotely stated about the appellant that he was seen with the deceased and the appellant does not know the deceased before the date of incident. (xv) That, the prosecution side has failed to discharge their burden of proving the case against the appellant beyond all reasonable doubts. (xvi) That, the conviction was recorded without any material evidence against him. The same is based on presumptions only, not based on facts and evidence adduced during the course of trial. Under the abovementioned facts and circumstances, the conviction of the appellant under the Sections aforesaid is illegal and therefore, it is contended to set it aside. The Submissions:- 5. Mr. Tsering, learned counsel for the appellant, while reiterating the grounds mentioned herein above, further submits that the prosecution side has failed to establish the charges against the appellant beyond all reasonable doubt. Mr. Tsering submits that the only piece of evidence against the present appellant is that of the vaginal swab collected from the dead body of the deceased, matched with the blood sample of the present appellant and based on this sole piece of evidence, the learned Trial Court has convicted the appellant. Further submission of Mr. Mr. Tsering submits that the only piece of evidence against the present appellant is that of the vaginal swab collected from the dead body of the deceased, matched with the blood sample of the present appellant and based on this sole piece of evidence, the learned Trial Court has convicted the appellant. Further submission of Mr. Tsering is that it is well settled proposition of law that a positive DNA report can be the basis of conviction of an accused, provided some other materials are also there to lend corroboration to the aforementioned fact. However, in the instant case, the collection of sample of blood and sending the same to the Forensic Science Laboratory and also in respect of keeping the samples in the custody, during the intervening period, is clouded with suspicion and as such, the DNA report itself seems to be doubtful and consequently, the finding of the learned Trial Court, which is based up on such doubtful report, fails to withstand the legal scrutiny. 5.1 Mr. Tsering further submits that the first sample of blood collected from the appellant is found to be inconclusive and thereafter, the second sample of blood was collected and that too not in presence of any witness, but at the police station and this sample was sent to the Forensic Science Laboratory and the same gave positive test and except this, there are no other facts and circumstances, to lend corroboration to the aforementioned report and as such, recording of conviction only on the basis of DNA report, is impermissible and such conviction, is ex-facie illegal. 5.2 Under the aforesaid facts and circumstances, Mr. Tsering has contended to allow the appeal by setting aside the impugned judgment and order of conviction. In support of his submission, Mr. Tsering has referred following decisions of Hon’ble Supreme Court as well as of this Court in support of his submission:- (i) Manoj & Ors. v. State of Madhya Pradesh , reported in (2023) 2 SCC 353 (ii) Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra , reported in (2023) 16 SCC 357 (iii) David Vanlaltlanchhuaha v. State of Mizoram reported in 2015 (5) GLT 470 (iv) Rahul v. State of Delhi Ministry of Home Affairs & Anr. , reported in (2023) 1 SCC 83 (v) Satye Singh & Anr. , reported in (2023) 1 SCC 83 (v) Satye Singh & Anr. v. State of Uttarakhand reported in (2022) 5 SCC 438 (vi) State of U.P. v. Rajvir , reported in 2002 0 Supreme(SC) 2382 (vii) Kali Ram v. State of H.P. , reported in (1973) 2 SCC 808 (viii) Digamber Vaishnav & Anr. v. State of Chhattisgarh , reported in (2019) 4 SCC 522 (ix) Maheshwar Tigga v. The State of Jharkhand reported in (2020) 10 SCC 108 ; and (x) Haricharan Kurmi v. State of Bihar , reported in 1964 0 Supreme(SC) 26 6. Per contra, Ms. Jini, learned Additional Public Prosecutor, for the State respondent, supports the impugned judgment and order of conviction. Ms. Jini has pointed out that besides the report of the FSL, there are number of other circumstances, which lends corroboration to the FSL report and the learned Trial Court on the basis of the same held that the charge framed against the appellant stands proved. Ms. Jini has pointed out that on the relevant date, the appellant was roaming with the other accused persons on the road and they purchased beer from the shop of PW-15 and PW-17 at about 4:30 p.m. and they had consumed the same in the restaurant of PW-17 and both the shop and the residence of the deceased are situated at India Gate and Yangla Gompa area, which is the road towards the residence of the deceased. Ms. Jini further submits that the victim had gone missing from the road, when she was going to her residence at about 4:30 p.m. and no other vehicles were plying on the road except the vehicle of the accused persons during that day and further, Ms. Jini pointed out that PW-5, the step mother of the accused Passang Tashi had deposed that at about 6 p.m. on the date of occurrence, Passang Tashi left her home and he did not return and at that time he went with Tenzin and others and that these circumstances forms a complete chain and the same, according to Ms. Jini, had unerringly pointed out the guilt of the appellant. And as such, the impugned judgment and order of conviction and sentence, suffers from no infirmity requiring any interference of this Court and accordingly, Ms. Jini has contended to affirm the impugned judgment and order. In support of her submission, Ms. Jini, had unerringly pointed out the guilt of the appellant. And as such, the impugned judgment and order of conviction and sentence, suffers from no infirmity requiring any interference of this Court and accordingly, Ms. Jini has contended to affirm the impugned judgment and order. In support of her submission, Ms. Jini has referred the following decisions:- (i) Manirul Islam @ Manirul Zaman v. State of Assam , reported in 2021 (3) GLT 128 (ii) Kanailal Hazra v. State of West Bengal , reported in 2004 0 AIR(Cal) 244 ; and (iii) Manoj (supra) 6.1. The learned Legal Aid Counsel for the respondent No.2, however, subscribes the submission of Ms. Jini, the learned Addl. P.P. 7. Having heard the submission of learned counsel for both the parties, I have carefully gone through the memo of appeal and the grounds mentioned therein and also perused the record of the learned Trial Court and the documents exhibited during the course of trial and also gone through the impugned judgment and order of conviction, dated 24.01.2024. Discussion:- 8. It appears that, the prosecution side, in order to bring home the charges against the present appellant, had examined as many as 23 numbers of prosecution witnesses, and exhibited 17 documents being P- Exhibit 1 to 17 and also exhibited another 6 documents being P-Exhibit I to VI. The learned Trial Court had also examined as many as 6 witnesses as Court witness. The accused persons also had examined 12 witnesses in support of their defence. 9. We have carefully gone through the said exhibits and also through the evidence adduced by the prosecution side as well as by the defence side and also examined by the learned Trial Court as court witness. 10. That, a careful perusal of the record of the learned Trial Court indicates that the occurrence took place on 28.08.2012, in the evening hours. And though the occurrence took place on 28.08.2012, the FIR was lodged on 29.08.2012 at 0715 hours. There appears to be some delay in filing the same. 10. That, a careful perusal of the record of the learned Trial Court indicates that the occurrence took place on 28.08.2012, in the evening hours. And though the occurrence took place on 28.08.2012, the FIR was lodged on 29.08.2012 at 0715 hours. There appears to be some delay in filing the same. But, it appears that the delay stands explained in view of the fact that the informant in the FIR, dated 29.08.2012, had categorically stated that having found his daughter missing in the evening of 28.08.2012, he informed his relatives and started searching her in all probable places of his village, but, he failed to trace her out and on the next day morning i.e. on 29.08.2012, he found the dead body of his missing daughter with blood stains and injury marks on her person. And as such, it cannot be said that there is any inordinate delay in lodging of the FIR, so as to spell inveracity to the prosecution version. 11. Further, from the FIR (P-Exhibit-1) and also from the P.M. Report (P-Exhibit-2), it appears that there is no dispute regarding the death of the deceased on the night of 28.08.2012. It also appears from the P.M. Report (P-Exhibit-2) that the death of the deceased was not a natural death but caused by head injury and the time since death was 12-24 hours. The P.M. Examination was conducted on 29.08.12, from 12.45 pm to 4-35 pm. And that being so, the death took place in between 12 pm of 28.08.2012 to 12 am of 29.08.2012. 12. Now, what left to be seen is how the deceased sustained the head injury and whether it was accidental, suicidal or homicidal in nature and if it is homicidal in nature, who had caused the same. 13. That, perusal of the record of the learned Trial Court reveals that on receipt of the FIR, the Officer-in-Charge, Jang Police Station had registered Jang P.S. Case No.7/2012, and he himself took up investigation and proceeded to the place of occurrence. In the place of occurrence, he has prepared the Sketch Map (P-Exhibit-6) and he also held inquest on the dead body of the deceased and in the inquest report (P-Exhibit-5), he has described the mark of injuries, found on the dead body of the deceased as under:- Bruise on the back, scratch marks on knee (left) and (RT) portion of abdomen. Near left and right waist front face and head stained with blood, puncture injury on her chin punctured injury 02 inch (approx.) on backside of head. Punctured injury on right portion of backside head, scratch marks on left hand. 13.1 He had also recorded that the incident appears to be suspected murder. The inquest was conducted at 08.30 hours, at I.E. Ngopsang Pho area, in between Shyaro and Zungma. He also found the dead body was facing downward, towards ground, backside upward, left hand slightly stretched, right hand band, left leg stretched, right leg wide open slightly band, trouser weared off, almost necked up to the neck, face and head covered by her wearing apparel, underwear torn and attached with right leg. Both the socks half pulled off. Eyes normal/closed, mouth closed, nose normal, hair black and long, ears normal. Further, it appears from the evidence of the I.O. (P.W.-22) that having conducted the inquest, he had sent the dead body for P.M. examination. As stated herein above, the prosecution side has exhibited the P.M. report as P-Exhibit-2. 14. The P.M. of the deceased victim was conducted by Dr. Sangey Thinley, whom the prosecution side has examined as PW-19 and his evidence reveals that he had conducted the P.M. examination of the deceased on 31.08.2012 (SIC-29.08.2012) along with Dr. Tenzin Gyaltsen (P.W.20), and Dr. Tenzin Kunga (P.W.-21). He had described in the P.M. Report, the injuries found on the dead body of the deceased as under:- Average built, lying supine in mortuary with red coloured underwear hanging in Rt. thigh, wearing black-bra intact, white coloured stockings in both legs. Female ……… (illegible) pubic & auxiliary hair. Breast areola not well developed. ? Rigor mortis on four limb only, rigor absent on jaw and eye lid. ? Post mortem staining present on right side. ? Bruise 3x2 & 1x1 cm in ant. aspect of rt. thigh/leg; ? Abrasion 1x1 cm rt. knee joint ant. aspect; ? Irregular abrasion 5x3 cm medial aspect of left knee joint. ? CLW 3x1 cm ant. aspect of left knee, abrasion 5x5 cm near hip joint left upper thigh lateral aspect, abrasion 3x2, 3x1 cm near Rt. ant. superior iliac spine, ? Abrasion 10x15 cm left hypochondriac to lumber, multiple small abrasion lt. iliac region, ? Abrasion 5x10 cm thoracolumbar region, ? Abrasion 3x2 cm Rt. upper butocks, ? ? CLW 3x1 cm ant. aspect of left knee, abrasion 5x5 cm near hip joint left upper thigh lateral aspect, abrasion 3x2, 3x1 cm near Rt. ant. superior iliac spine, ? Abrasion 10x15 cm left hypochondriac to lumber, multiple small abrasion lt. iliac region, ? Abrasion 5x10 cm thoracolumbar region, ? Abrasion 3x2 cm Rt. upper butocks, ? CLW (laceration) 6x3x2 cm submapal area, black eye blarred; ? Multiple abrasions present ant. neck detected upwards submapal. ? Ligature mark extending from left acromioclavicular joint to post byoler of rt. sternocleidomastoid muscle. ? Ligature mark present extending from left temporomandibular joint extending above hyiod bone to right angle of jaw, ? Bruise 5x10 cm forehead left side, nasal bridge facture, left cheek bone 5x5 cm ? Bruise, 6x1 cm laceration CLW 5x2x1 cm left temporal parietal region. ? Abdominal wall-healthy and peritoneum-healthy. ? Scalp 5x3x1 cm CLW (laceration) over left parietal region. ? Skull lt. tempo parietal suffered separated, temporal bone dislodged, Rt. temporo parietal suffered separated, Rt, parieto-occipital suffered separated. ? Sub-dural hemorrhage over left temporal parietal region; ? Foul smelling vagina, ? Corrugated torn hymen; ? Dried fluid patch observed inner aspect of left thigh, ? Vaginal opening 5 x 5 cm, approx. 14.1 He also found semi-digested food particles in stomach and semi- digested food particles in small intestine and gas in large intestine. And upon the abovementioned finding, he opined that by physical examination, evidence is suggestive of sexual intercourse, further forensic laboratory investigation needed for confirmation and cause of death is head injury, and time since death was 12 to 24 hours. 14.2 His evidence also reveals that after conducting the post mortem, they concluded that the cause of death was because of the head injury, and that sexual intercourse could not be ruled out and hence, they sent the sample to obtain report from the Forensic Science Laboratory, so as to ascertain the active agent as they confirmed that the victim was sexually assaulted. The samples of blood of the accused persons and the vaginal swab of the victim were sent. They also concluded that head injury was cause of death and most importantly the subdural hemorrhage over left tempo-parietal region of the head, which could be caused by a blunt weapon or an object. The samples of blood of the accused persons and the vaginal swab of the victim were sent. They also concluded that head injury was cause of death and most importantly the subdural hemorrhage over left tempo-parietal region of the head, which could be caused by a blunt weapon or an object. They also concluded that the victim has been sexually assaulted because of presence of corrugated and torn hymen, which was recent torn and the injuries found on the dead body and on her private part were anti-mortem injuries, which could have been caused between 12 to 24 hours. They also concluded that as per their examination, 3rd molar teeth was yet to be erupted and also the examination of the elbow told them that there was a fusion and hence they concluded that the victim was in between 13 to 18 years of age. 14.3 However, it is elicited in cross-examination of P.W.19 that though he had not used the word recent, he stated in the report about the rupturing of the hymen and if the said hymen was ruptured not within 12 to 24 hours from the time of his examination, but had ruptured long back, then hymen would not have been found and visible. So, since rupture of hymen was visible he opined that it was a recent rupturing though he did not used the word recent specifically. It is also elicited that the opening of the vagina in big size, measuring 5 x 5 cm, could be caused not only by sexual intercourse. However, he confirmed that he had conducted PM of the said victim on 29/8/2012, in between 1245 PM to 0435 PM. Further, it is elicited that to confirm commission of rape by the accused standing trial, they had collected samples like swab from coronal area, meatel area, prepucial area of the pennis of each accused persons and also sperm, hair from the scalps and pubic hairs of each accused persons along with the under wear of these accused persons. They also took the blood samples of the accused persons to be forwarded to forensic lab. Accordingly, all these were sent to forensic lab. They also took the blood samples of the accused persons to be forwarded to forensic lab. Accordingly, all these were sent to forensic lab. It is also elicited that as the situation was volatile, the mob started breaking the doors of the Hospital, as they were demanding early collection of the samples, so they had taken some of the sample from each of the accused persons in the police station. 14.4. The evidence of PW-20 - Dr. Tenzin Gyaltsen and PW-21-Dr. Tenzin Kunga who had joined with P.W.-19 in conducting the post mortem, also lend corroboration to the evidence of PW-19. These two witnesses were cross-examined by the appellant and nothing tangible could be elicited to demolish their evidence. 14.5. Thus, the evidence of these three witnesses, i.e.- PW-19, PW-20 and PW-21 and P-Exhibit-2, the post-mortem report and P-Exhibit-5, the inquest report, goes a long way to establish beyond all reasonable doubt that the death of the deceased was homicidal in nature. 15. Now, what is left it be seen is, who had caused the abovementioned injuries, leading to death of the deceased. And whether the same would comes under any of the exception mentioned in Section 300 IPC. 16. Indisputably, there is no eye witness to the occurrence. The entire prosecution story, against the present appellant rest upon the FSL report (P-Exhibit-8) and the evidence of Dr. Monalisa Chaudhury (CW-4) and also upon some circumstantial evidence. While the learned Addl. P.P. has contended that the FSL Report and the evidence of C.W.7 and the circumstantial evidence so brought on record goes a long way to establish the guilt of the accused/appellant, the learned counsel for the appellant Passang Tashi has contended that none of the witnesses examined by the prosecution side had whispered any word against the present appellant, except however by the C.W.4, who had deposed about matching of the vaginal swab of the victim with that of the blood of the appellant and the DNA report submitted by her. But, according to the learned counsel for the appellant the FSL report cannot be relied upon for being clouded with suspicion on account of absence of evidence in respect of proper collection, preservation, custody and in sending the samples to FSL and further that the value of DNA report is corroborative only. 17. But, according to the learned counsel for the appellant the FSL report cannot be relied upon for being clouded with suspicion on account of absence of evidence in respect of proper collection, preservation, custody and in sending the samples to FSL and further that the value of DNA report is corroborative only. 17. However, in order to appreciate the rival submission of both the counsel, we deemed it appropriate to carefully go through the evidence of all the witnesses. 18. The prosecution side had examined the informant, the father of the victim, as P.W.1. He had lodged the FIR-P- Exhibit-1. This witness only deposed about missing of his daughter on 28 th August 2012, and about searching her and further, about recovery of her dead body in the morning of next day, in naked condition. He had also deposed about the Tiffin box of his daughter, lying there with bottle of rum and cigarette packet. 19. P.W.2 is Sri Genden Tsering, who is a village authority of Shyaru village. His evidence reveals that on 28.08.2012, he had received a missing case and he joined the search operation of the girl who was found missing at Lhou area. Then along with 4 youths, he reached the house of the victim at around 9 pm at night. Though it was raining, yet they went to a spot, where some people met the victim on the way at around 4.30 pm in that spot. While they weere searching in that spot, they saw Raju Lama in his car by then just 60 meters away from the said spot. He then told Raju Lama about the incident of the missing girl to which he replied that he also knows about the missing girl hence, he said that he will inform them in case she is found on the way towards India Gate, as he was going that side looking for two of his friends, who were on two bikes. After 30 to 40 minutes said Raju Lama came back in his Alto car from India Gate. After 30 to 40 minutes said Raju Lama came back in his Alto car from India Gate. Then he wanted to know from the driver of this Alto as to why he is moving to and fro at this night time but he did not stop his car where he wanted him to and at a little distance from the place where he was standing, he had to stop his Alto because there was a Van parked in the middle of the road and then he went nearer to him for which he opened his car window and told him to check his car so that he is not blamed tomorrow, in case anything goes wrong. He had found one more persons sitting in his car, and he is present in the court. His evidence also reveals that with his team there were two girls and one of them knew one accused person called Tenzin and made a call to him and got it confirmed that the accused Tenzin is present at the residence of one Sri Tsering Tashi which is located at Lember Dung. They went back home from there at around 12 at midnight. The father of the victim, on the next day morning, found the dead body on the spot and shouted and then he went to the place where the dead body was lying and saw the same. His evidence also reveals that he went to the place of Raju Lama as he was found moving here and there at mid of the night when they were searching the victim girl, which made them suspicious, as the dead body of the missing girl was found down the road, where Raju Lama was found moving to and fro and they found Raju Lama in his place with injury marks on his face. His evidence also reveals that one of the accused, namely Tenzing, standing on the dock, also made his appearance by then and he was also having scratch mark on his face. On asking Raju Lama told that he went to and fro on that road searching the co-accused and that he met an accident with his car and he sustained injuries. Accused Tenzing told them that he was with the accused Raju Lama and others last night before he left for his place. On asking Raju Lama told that he went to and fro on that road searching the co-accused and that he met an accident with his car and he sustained injuries. Accused Tenzing told them that he was with the accused Raju Lama and others last night before he left for his place. He told them that since Raju Lama and others were told by him that he was going back to the place of his master the question of searching him at India Gate, at mid night, does not arise, which has created some doubt. His evidence also reveals that accused Raju Lama and other were seen at India gate on the day of incident. They were seen taking liquor by Drema Tsomu, Leptang(Teznin Tsomu) and Tenzin Lamu. These people told us that the accused were found moving suspiciously on that day in that area where the incident took place. His evidence also reveals that the victim was a school going children reading in class VII. She was of 14 to 15 years old, and later on, he could learn that this accused used to tease the victim girl and in this connection, the police had also recorded the statement of class mate of the deceased. 20. It is elicited in his cross-examination that the dead body of the deceased was found in the place call Ngupsiangpu. It is also elicited that the victim girl was met by a nun and monk while she was coming back from her school and the place is known as Sigminia of Lhou area and they met her at around 4.30 to 5pm. He admitted that he had not seen Raju Lama talking with the deceased or having moving around with her. He became suspicious because Raju Lama was moving here and there at night and whereas there is no office at India Gate nor any shop and he was not having any relative there. 21. P.W.3 is one Phuntsok, who deposed that at around 7 pm on the date of occurrence, one Sri Jambey Dorjee informed them about missing of the victim girl. On getting the missing information they started searching her towards her house, which is located on the top of India Gate. 21. P.W.3 is one Phuntsok, who deposed that at around 7 pm on the date of occurrence, one Sri Jambey Dorjee informed them about missing of the victim girl. On getting the missing information they started searching her towards her house, which is located on the top of India Gate. They went looking for the missing gril beyond her house towards India Gate because they were of the impression that the missing girl might be there in labour camp watching T.V as this labour camp is located near the house of missing girl. But, they could not locate the missing girl there at labour camp. Then, as it was getting late, they had decided to start search on next day in the early morning. His evidence also reveals that they met one Sri Raju Lama in one Alto car, while departing, as he was going toward India Gate and when asked Raju Lama told that he is going toward India Gate looking for his friend Tenzin who was supposed to be on a bike. Then they met the other groups, who were involved in search operation on the way, then they decided to go up to the place called Gomchen Brah where the missing girl was seen for the last time by a monk called Lobsang Namgel and Ani Tenzin Drema. The owner of the said Alto Sri Raju Lama came back again from India Gate and they stopped him but he did not stop his car. There was a van parked 10 meters away from them and Raju Lama stopped the car near the van. On asking, Raju Lama told them that he was looking for Tenzin hence he told them that his car number may be noted by them if they have any doubt on him. There was a girl called Rinchin Lama with them, who had the phone number of Tenzin, whom Raju Lama was looking for. She made a call to Tenzin to know about his whereabouts. Tenzin then told her that he is at the residence of Sri Tsering Tashi, the present MLA of Tawang. Thereafter, they left for their own home. Early in the morning, they came to know that the said missing girl is killed and thrown away in a place which is 100 meters away from the place where they met Raju Lama for the first time. Thereafter, they left for their own home. Early in the morning, they came to know that the said missing girl is killed and thrown away in a place which is 100 meters away from the place where they met Raju Lama for the first time. Then they went to the place of Raju Lama and asked him as to why he was looking for Tenzin last night. Then Raju Lama answered us that Tenzin was with him in the day time, but, he suddenly disappeared hence he was looking for Tenzin. Raju Lama also told that in the day time he was with three other friends like Tenzin, Bapu and he do not remember the name of other one. He was made to call Bapu and Bapu told them that he was with Raju Lama in the day time of the incident and also he told them that he and his friends had liquor at India Gate with Raju Lama. He also told that he was with Raju Lama and other friends till Yangla Gompa at night and they took liquor again there. When asked him about the time, then he told that he did not remember the time but he was at Yangla Gompa till 9 pm with his said friends. They also learnt from Tenzin that he really was with Raju Lama and his friends in the day time of the said incident and had liquor two three places together. He also told that when they were taking liquor at Yangla Gompa, Raju Lama and one of his friends went away. 21.1 Cross-examination of this witness reveals that when they met Raju Lama for the first time, it was around 10 PM. They met Raju Lama for the second time at around 10.40 PM. It is also elicited that they were told that they were celebrating at night by taking beer and other liquors for having new bike by Tenzin. 22. Miss Nawang Drema, whom the prosecution side had examined as PW-4, is the sister of the present appellant Passang Tashi. Her evidence reveals that as her child was sick, she came back home at 2 PM on the day of the incident and found her brother Passang present at home and when her mother came back in the evening her brother was sent to the market to fetch milk and he came back home. Her evidence reveals that as her child was sick, she came back home at 2 PM on the day of the incident and found her brother Passang present at home and when her mother came back in the evening her brother was sent to the market to fetch milk and he came back home. Thereafter, her brother was taken away from home by two of his friends, namely, Tenzin and she do not know the other. Her evidence also reveals that her brother went out with his friends in that evening at around 6 to 7 PM. Thereafter, he did not return home. She did not bother to make an enquiry about the whereabouts of her brother. This witness was not cross-examined. 23. The evidence of P.W.-5 reveals that she came to the court for her son who is standing on the dock, but she does not remember his name as he is her step son. However, she had identified him in the court and he disclosed his name as Passang Tashi. Her evidence reveals that when she came back from her work, he was present at home. Further, her evidence reveals that the police asked her about her son and then she told the police that her step son came home and he left again at 6 PM and did not return again. This witness was also not cross-examined by the defence side. 23.1 Notably, the factum, that the appellant was at home up to 6 p.m. and that he left home and did not returned, is admitted by the appellant himself, when the said factum was brought to his notice in his examination under Section 313 Cr.P.C. 24. The prosecution side had examined Miss Choikey as PW-6. Her evidence reveals that she saw four accused persons, namely, Tenzin, Raju Lama, Ratan and Poppu, going on two bikes towards the house of the victim, at around 1 to 2 pm. At that time, she was working near the roads and digging a hole. It is elicited in her cross-examination that she cannot say if the accused persons were going to the house of the victim. It is also elicited from her cross-examination that many vehicles used to ply on that road, but on that day, none were found plying, except those two bikes, till 4 pm. 25. Miss Tsering Jangmu was examined by the prosecution side as PW-7. It is also elicited from her cross-examination that many vehicles used to ply on that road, but on that day, none were found plying, except those two bikes, till 4 pm. 25. Miss Tsering Jangmu was examined by the prosecution side as PW-7. Her evidence reveals that she knows one of these accused persons, namely, Raju Lama. She had seen two motor bikes going toward Sheru village and one of the bikes she had noticed accused Raju Lama. It is elicited in her cross- examination that she was working there at the said road with Miss Choigey. Further it is elicited that the bike riders were hauling and that no other vehicles/bikes were found plying on that road on that day till 4 PM. 26. P.W.8, Shri Pema Dhondup was the schoolmate of the victim and he was studying at Class VI. Her evidence reveals that except accused Pappu Baiya (Dil Bahadur as told by Pappu Baiya himself to this court), and on 28th August, 2012, the victim was dead. His evidence reveals that Pappu Baiya asked him if the victim left or not, and then he told him that she had left. Thereafter, Papu Baiya left toward Zungmar village and that one more person was there with Pappu Baiya but he does not know his name. His evidence also reveals that he had seen the victim with four other Ani (Nun Buddhist), and when he saw victim with those Ani, he told her that some boys are looking for her. Then she replied that they must be looking for him. They were talking to each other. Thereafter, she left for her house. It is elicited in cross-examination that the victim was one year senior to him in class wise. He met Pappu Baiya at around 4 PM, and she met victim with those Anis (Buddhist Nun) at around 4 PM, near Yala Gonpa area. The school time was over by 3.30 PM, and the victim was present in her school on that day till 3.30 PM with those Anis. 27. Ms. Jambey Choijang, who was examined by the prosecution side as PW- 9, deposed that she heard Pema Dhondup telling the victim that Nepali boys were searching for her at Zungba. Thereafter, she left for her monastery and the victim left for her home. 27. Ms. Jambey Choijang, who was examined by the prosecution side as PW- 9, deposed that she heard Pema Dhondup telling the victim that Nepali boys were searching for her at Zungba. Thereafter, she left for her monastery and the victim left for her home. By then they were four and they are Jambey Tsomu, Dorjee Pema, Chorten Drema and the victim. Her cross-examination reveals that the victim was her class mate. The victim was with them till classes were over. They met Pema Dhondup after school hours on that day at around 4 to 4.30 PM. 28. The prosecution side had examined Smti. Dorjee Pema as PW-10, Jambey Tsomu as PW-11, and Ms Chorten Drema as PW-12. These three witnesses dittoed the same facts like P.W. 9, and thereby they lend corroboration to her evidence. 29. P.W.13, Miss Lobsang Youten is another class mate of the victim and she read together up to class – VII, with the victim. Her evidence also reveals that on the next date of incident when she came to the school, she came to learn that the victim has been raped and murdered by a person called Sri Pappu and his friends. She also came to know that a boy, called Pema Dondup, told the victim that two Nepali guys on two different motor cycles were looking for her, then she told that why should these Nepali boys look for her and also she said that the Nepali guys must be looking for her and she also learnt that one of them was Pappu. She came to know about all these things from her friends namely, Jambey Choijang, Choten Dema, Dorjee Pema & Jambey Chomu. Cross- examination of this witness reveals that the victim was with them on that day at the school till 3:30 pm. 30. The evidence of Miss Tashi Yangchin, PW-14, reveals that on the night of 28/08/2012, there was a phone call from Raju Lama at around 11'o clock, who asked her to meet him, while she refused to meet him then he told her that they will meet on the next day while going to School, then he told her that he will not be able to meet her since he is going out for certain works for a long period of time. Then accepting his proposal she met Raju Lama outside her house, at around 11:30 pm and talked with each other for 10-15 minutes, but meanwhile, her parents and sister came out. On seeing them, Raju Lama got scared and she and Raju Lama were sitting inside his car since it was raining by then. Then Raju Lama started the car and hurriedly rushed towards Tawang with her. While driving hurriedly, the car met an accident by dashing the bridge at Bomdir and they sustained injuries and she got injuries over her forehead, Raju Lama got injured on face. The other accused person, whom she does not know, by name, but whom she identified in this court was seating in the back seat of the car and he did not sustain injuries. Since the vehicle could not be started, they started marching towards a village called Zingtan by foot where they met one Shri Kancha Lama. Thereafter, Kancha Lama dropped them in his own vehicle to short cut junction towards Khrimu. This is how they reached the house of accused Raju Lama and it was almost dawn. Her evidence also reveals that when accused Raju Lama came to her house, he told her that he is coming from a party as one of his friends had thrown a party for having purchased a new bike. It is elicited in cross-examination that she does not know the victim of this case and Raju Lama did not tell her anything about victim girl. She was also put behind the bar for 1 month & 18 days in connection with the case. 30.1. Though, the evidence of this witness would not come into assistance of the prosecution side, yet, her evidence throws light in respect of the injuries got by Raju Lama and the fact that Raju Lama was with her since 11 pm on the night of incident till morning that day. 31. The evidence of Miss Tenzin Tsomu, whom the prosecution side had examined as P.W.15, reveals that on 28.08.2012, she was at India Gate, running a shop. On that day, two bikes arrived at her shop and the rider took two bottles of beer from her shop. On those two bikes one Sri Tenzin, Raju Lama and Papu and one more person, whom she did not know, came. After collecting the beers those boys left at around 3.30 PM. On that day, two bikes arrived at her shop and the rider took two bottles of beer from her shop. On those two bikes one Sri Tenzin, Raju Lama and Papu and one more person, whom she did not know, came. After collecting the beers those boys left at around 3.30 PM. On next day, she could learn that the victim was raped and killed. She could also learn that those boys, who came to her shop, were arrested in connection with this case. She had identified one Papu, Raju Lama and Tenzin in the Court. In her cross-examination, it is elicited that those boys left her shop at around 4.30 pm and she know them for last three months from the date of incident. She had not seen the other accused persons standing on that day. 32. The prosecution side had examined Shri Tenzin Jambey as PW 16. His evidence reveals that on 28/08/2012, while he was going towards his home, he met two motor bikes, which were coming towards Lhou. He could identify Raju Lama and Papu only, amongst the persons, who were riding the bikes. His evidence also reveals that on that day, at round 6 PM, they were told by the villagers that the victim is missing. Next morning, they learnt from the father of the victim that the victim has been killed by someone and the body was found down the road in between India Gate Shero Gompa. Then he went to that place and saw the dead body, which was lying in a naked position and an injury was found on the head. His evidence also reveals that those two boys, whom he had mentioned, were arrested in connection with this case. He had identified two persons in the court. It is elicited in his cross-examination that other vehicles are found plying on that road and that he was on that road from 4 to 4.20 pm, on that day and that he did not see any vehicle plying within that time. 33. The evidence of P.W. 17, Mrs. Tsering Lhamu on the other hand reveals that on the day of the incident six persons came to her restaurant and took beer at around 8 to 9 PM. She knew those persons, namely, Raju, Kalu, Papu, Suraj Kumar, Tenzing and Sanu, who were present in the court. 33. The evidence of P.W. 17, Mrs. Tsering Lhamu on the other hand reveals that on the day of the incident six persons came to her restaurant and took beer at around 8 to 9 PM. She knew those persons, namely, Raju, Kalu, Papu, Suraj Kumar, Tenzing and Sanu, who were present in the court. Her shop was located at Yangla Gonpa area and they left her restaurant on two bikes and one Alto car. Next day, she could learn that the victim was raped and murdered and she was thrown down the road. She also could learn that those persons, who came to her restaurant and had beer, were arrested in connection with this case. It is elicited in cross-examination that she does not know that the other accused persons, standing on the dock, by name and by face. It is also elicited that she knows the accused persons, who are named by her since last 10 to 11 years from the date of the incident. 34. Miss Tashi Tsomu was examined as PW-18, by the prosecution side. Her evidence reveals that prior to three months of the occurrence, on one day, while she was going with the victim, they met Raju Lama on the way. He stopped his vehicle and asked them if they want to go with him. But, they refused to go with him. Her evidence also reveals that the victim was her friend as class mate and she could learn that Raju Lama and other are arrested in connection with this case. It is elicited in her cross-examination that on the day of the incident she was with the victim in the school till 3.30 PM. 35. The prosecution side had examined the Investigating Officer, Shri Sange Norbu as PW-22. His evidence reveals that in the year 2012, he was posted at Jang Police Station as Officer in-charge. Then on 29.08.2012, during morning hours he had received information that the victim was found murdered at Ngosengpho, near Shyaro village. He then visited that place, found dead body of the deceased. He then cordoned off the area, conducted inquest on the dead body and prepared inquest report- P/Ext. 5, and also prepared rough Sketch Map- P/Ext. 6, of the place of occurrence. His evidence also reveals that the victim appeared to be dragged about 37 meters down from the road. He then visited that place, found dead body of the deceased. He then cordoned off the area, conducted inquest on the dead body and prepared inquest report- P/Ext. 5, and also prepared rough Sketch Map- P/Ext. 6, of the place of occurrence. His evidence also reveals that the victim appeared to be dragged about 37 meters down from the road. He had found a packet of Cigarette, a Mc-Dowell Bottle on the passage, through which the victim was found to be dragged down, and other belongings of the deceased such as School bag and Tiffin box at the place of occurrence. He then seized the same vide seizure list, P/Ext. 3. He then took the dead body to Tawang District Hospital for post mortem. His evidence also reveals that while going to Tawang, he found the people from Shyaro village apprehended three suspects, namely, Raju Lama, Til Bahadur Tamang (sic- Dil Bahadur Tamang) and one more person. He then interrogated Raju Lama, Til Bahadur Tamang (sic- Dil Bahadur Tamang) and their friends and also he had arrested six other accused in the present case, including a lady. His evidence also reveals that on examination of a school boy, it has been revealed that Shri Til Bahadur Tamang (sic- Dil Bahadur Tamang) alias Pappu was heard asking him whether the deceased was coming to school that day. Then after thorough investigation, prima facie case was found well established against the accused persons, therefore, he laid the charge sheet, P/Ext. 4, under Section 302 /376/34 IPC against all the eight accused. He had confirmed Mat. /Ext. 1 to 16, the photographs of the dead body and other objects found in the scene of crime taken by him. He then collected the samples and others articles and forwarded the same for forensic examination. Thereafter, he had collected reports and enclosed with the charge sheet. His evidence also reveals that on the basis of FSL report, P/Ext. 8, dated 15.03.2013, he had filed supplementary charge sheet, P/Ext. 7. His evidence also reveals that sample for DNA profiling was sent to Kahilipara, and a positive report in respect to accused Passang Tashi alias Shanu was received. 35.1 It is elicited in his cross-examination that he did not find any substantial evidences against other accused persons in FSL and during re- interrogation of Passang Tashi, as such, he had filed charge sheet against Passang Tashi only. 35.1 It is elicited in his cross-examination that he did not find any substantial evidences against other accused persons in FSL and during re- interrogation of Passang Tashi, as such, he had filed charge sheet against Passang Tashi only. It is also elicited that during interrogation of Passang Tashi, he found time difference and contradiction in his statement. He had also collected CDR in respect of the SIM used by accused Passang Tashi, but he could not find the exact location of accused from 2 to 6 PM during occurrence of incident. He had remembered that blood samples of all the accused were taken for 1 st FSL report. Vaginal swab of the deceased was also taken for 1 st FSL report. It is further elicited that the place of occurrence lies between two villages, and there are 40 to 50 households in Shyaro village while there are two houses in Zungbatse and that school of the victim would be at the distance of 1.5 KM from her residence. He could not find the source of seized Mc-Dowell Bottle and also the Cigarette packet. 36. P.W. 22 (sic-23) is Mr. Sange Norbu and his evidence reveals that he had forwarded the accused for medical examination. His evidence also reveals that he had prayed for discharging other accused in his Charge Sheet, as there were no supporting medical evidences against them except Passang Tashi. He had filed the 1 st Charge Sheet against all the accused on the basis of circumstantial evidence, but later on, he prayed for discharge of the other accused as there were no medical evidences against them except Passang Tashi. As per CDR, there was no call from co-accused Passang Tashi on the day of incident. There was inconsistent statement of the accused Passang Tashi besides medical evidences. The PO lies at a distance of 40:60 meters from the India Gate to Shyaro Gompa. He had filed the 2 nd Charge Sheet, relying upon the medical evidences which does not incriminate against other accused except Passang Tashi. This witness was not cross-examined. 37. P.W. 23 (sic-24) is Mr. Thupten Namgey, whose evidence reveals that he knows all the persons standing on the dock by their appearance; but he does not know their names and he had seen them at Tawang. This witness was not cross-examined. 37. P.W. 23 (sic-24) is Mr. Thupten Namgey, whose evidence reveals that he knows all the persons standing on the dock by their appearance; but he does not know their names and he had seen them at Tawang. His evidence also reveals that he was asked by police if he had transported male passenger from Khrimu to Jang, and then he gave the reply in negative. He runs a private passenger Sumo from Jang to Tawang daily. Generally, he starts from Jang at 6:30 a.m. and arrival time at Tawang is 8:30 a.m. His cross-examination reveals that he cannot say if Passang Tashi travelled in his vehicle from Khrimu to Tawang on the relevant date. 38. It is to be noted here that the learned Trial Court had again examined Dr. Tenzin Kunga as C.W.1 and Dr. Tenzin Gyaltsen as C.W.2, inspite of they being examined as P.W. 21 and P.W. 20 respectively. If their re-examination was found to be necessary they could have been recalled and then re-examine as P.W. 21 and 20. The procedure, so adopted by the learned Trial Court appears to be contrary to Section 137 of the Indian EVIDENCE ACT , 1872. 38.1 Be that as it may, Dr. Tenzin Kunga, as CW-1, deposed that a board was constituted to examine all the accused. Then he had examined four accused namely Dil Bahadur Tamang, Raju Lama, Gor Bahadur Sonar and Sagar Sonar. His evidence also reveals that as per his examination, Raju Lama had sustained bruise injury on lower lip, contuse lacerated wound on lower lips, bruise on right clabicular area and abrasion on left shoulder. Accused Gor Bahadur Sonar sustained multiple injuries on upper arm and forearm, right hand lateral aspect, multiple bruise on flexor on forearm right hand, abrasion 5x0.2 cm on flexor surface on forearm right hand, lineal cut .5 to 1 cm on palm left hand. Accused Dil Bahadur Tamang & Sagar Sonar did not sustain any injury. His evidence also reveals that in his opinion, if a driver in a normal speed moving in a car strikes the vehicle in any hard object, he shall receive injury on forehead and nose or other region of the face. He confirmed P. Ex. 9, the injury report of Raju Lama, P. Ex. 10, the injury report of Gor Bahadur Sonar and P. Ex. He confirmed P. Ex. 9, the injury report of Raju Lama, P. Ex. 10, the injury report of Gor Bahadur Sonar and P. Ex. 13, the injury report of Dil Bahadur Tamang and P. Ex. 15, the injury report of Sagar Sonar. It is elicited in his cross- examination by the Public Prosecutor that the evidence of sexual intercourse is inconclusive and further forensic investigation is required. In cross-examination by defence side, it is elicited that the injury could be sustained in normal accident and it may also be possible that the injury sustained by Gor Bahadur could be of accident of the vehicle. 39. The evidence of Dr. Tenzin Gyaltsen, CW-2 reveals that while he was posted at District Hospital, Tawang, as emergency Medical Officer, Police brought few accused before him for medical examination and he had examined Passang Tashi, Suresh Gurung & Tenzing. During examination of Passang Tashi, he did not find any external injury on his body. Similarly, no external injuries were also found with Tenzing. However, he found external injury of small abrasion 0.5 x .5 cm injury on trachea (neck), another abrasion measuring 0.5x 0.5 cm, another abrasion on neck, measuring 0.5 x 0.5 cm, and another abrasion injury on right shoulder, measuring 7 x 0.5 cm, on the person of Suresh Gurung. He confirmed P. Ex. 11, the Medical Report of Passang Tashi and his signature thereon and P. Ex. 12, the Medical Report of Tenzing and his signature thereon and P. Ex. 14, the Medical Report of Suresh and his signature thereon. This witness was not cross-examined by the prosecution side. However, in cross-examination by defence side, it is elicited that it is possible that accused may sustain similar nature of injury if he is man handled by mob. 40. The evidence C.W. 3 - Mr. 14, the Medical Report of Suresh and his signature thereon. This witness was not cross-examined by the prosecution side. However, in cross-examination by defence side, it is elicited that it is possible that accused may sustain similar nature of injury if he is man handled by mob. 40. The evidence C.W. 3 - Mr. Pema Wangchu reveals that as per the order of the Court, he had checked the file and found examination report of all the accused, i.e. P.Ex.9, the injury report of accused Raju Lama, P. Ex.10, the injury report of accused Gor Bahadur Sonar, P. Ex.11, the injury report of accused Passang Tashi, and P. Ex.12, the injury report of accused Tenzing and P. Ex.13, the injury report of accused Dil Bahadur Tamang and P. Ex.14, the injury report of accused Suresh Gurung, and P. Ex.15, the injury report of accused Sagar Sonar and P. Ex.16, the injury report of accused Kalu Tamang and P. Ex.17, the forwarding of the injury report to the Court. It is elicited in cross-examination that the P.Ex. 9 to 16 were not enclosed in the Charge Sheet. 41. The evidence of CW-4, Dr. Monalisa Choudhury, reveals that on 15.09.2012, she received one parcel from the Director DFS Assam, in connection with Jang P.S. Case No.07/2012, under Section 302 IPC and the same contains 41 exhibits, which were cloth cover, carton box with the seal impression forwarded and the said articles were mentioned in the record and Exhibit Nos.DNA 576/12, DNA 580/12, DNA 584/12, DNA 588/12, DNA 593/12, DNA 597/12, DNA 601/12 and DNA 605/12, were isolated by organic extraction method and subjected to multiplex PCR reaction using AMP FLSTR Y filer kit and the amplified products along with the control was run on automated DNA. Sequencer and analysis was carried out using gene napper ID 3.7 software with respect to standard lader and she found- 1. The amplified loci of exhibit No.DNA 573/12 (vaginal swab) matches with the amplified loci of the exhibit No.DNA 584/12 (Passang Tashi), and 2. Rest of the exhibits, though subjected to DNA analysis, but no good quality of DNA is found from the same. 41.1. She had confirmed P. Ex. 8, the DNA report, prepared by her and her signature over the same. Rest of the exhibits, though subjected to DNA analysis, but no good quality of DNA is found from the same. 41.1. She had confirmed P. Ex. 8, the DNA report, prepared by her and her signature over the same. However, it is elicited in her cross- examination that the sample of vaginal swab of the victim and blood of accused is mixed during the examination then they will get DNA profile of both male and female. Nothing tangible could be elicited in cross- examination of this witness. And probative value of her evidence remained unshaken in her cross-examination. 42. The evidence of Dr. Arup Manta, CW-5, indicates that on 15.09.2012, he received one parcel from the Director, DFS Assam, in connection with Jang P.S. Case No.07/2012, under Section 302 IPC and the parcel contains 33 exhibits:- 1. Exhibit No. SERO 3059/B, SERO 3059/C and SERO3059/D positive test for presence of human spermatozoa. 2. Exhibit SERO 3059A, SERO 3059, SERO 3059a1, SERO 3059 b1 positive test for presence of human blood of group A. 3. Exhibit No. SERO 3059 X positive test for presence of human blood of group AB. 4. Exhibit No. SERO 3059/g1 positive test for presence of human blood of group B. 5. Exhibit No. SERO 3059/K, SERO 3059/Q and SERO 3059/T positive test for human blood only, but its group could not be determined due to denoromination of blood. 6. Exhibit No. SERO 3059/F and SERO 3059/G positive test for presence of human blood. 7. Exhibit No. SERO 3059/E, SERO 3059/H and SERO 3059/U negative test for presence of semen. 8. Exhibit No. SERO 3059/I, SERO 3059/J, SERO3059/L, SERO 3059/M, SERO 3059/0, SERO 3059/P, SERO 3059/R, SERO 3059/S, SERO 3059/V, SERO 3059/W, SERO 3059/Y, SERO 3059/Z, SERO 3059/b1, SERO 3059/c1, SERO 3059/e1, SERO 3059/f1 negative test for presence of vaginal cell and blood cell. 9. Since gonorrhea test may not be done therefore, all the 8 exhibits of metal swab are returned herewith. 42.1 His evidence also reveals that he had submitted his report- P. Ex. 10, with his signature thereon. However, the evidence of this witness would not come into the assistance of the prosecution side. 43. However, the evidence of CW-4, Dr. 9. Since gonorrhea test may not be done therefore, all the 8 exhibits of metal swab are returned herewith. 42.1 His evidence also reveals that he had submitted his report- P. Ex. 10, with his signature thereon. However, the evidence of this witness would not come into the assistance of the prosecution side. 43. However, the evidence of CW-4, Dr. Monalisa Choudhury and the record (P.Exhibit-8) goes a long way to show that the amplified loci of exhibit No.DNA 573/12 (vaginal swab) matched with the amplified loci of the exhibit No.DNA 584/12 (Passang Tashi). The evidence of CW-4, Dr. Monalisa Choudhury, regarding matching of vaginal swab of the deceased with that of the blood sample of the appellant, and her report P. Ex. 8, thus goes a long way to support the prosecution case to a considerable extent. 44. It is to be noted here that this circumstance, when put to the appellant in his examination under Section 313 Cr.P.C. as Q.No.42 and he failed to explain the same, by simply denying the same as not proved. It is a settled principle that evasive answer in examination under Section 313 Cr.P.C. and failing to explain the same properly is a circumstance that provide missing link of the accused with the offence. 45. C.W. 5 (SIC-6) Tamo Tatak is the Principal of Govt. Higher Secondary School, Singchung. He deposed about the date of birth of accused Sagar Sonar and produced the School Admission Register. And C.W. 6 (SIC-7) - Shri Pema Dorjee is the EAC cum-Registrar, Death and Birth, Jung, who had exhibited the Birth Certificate of accused Raju Lama. But, to decide the present appeal, the evidence of these two witnesses are found to be not so relevant. And therefore, detail discussion of their evidence is found to be not necessary herein this appeal. 46. It also appears that the accused persons had also examined as many as 12 witnesses, including themselves, in their defence. 46.1. D.W.1, Smti. Guna Maya is the mother of accused Raju Lama. Her evidence reveals that local residents of her village had destroyed her house alleging involvement of her son Raju Lama in the present case and that he is innocent, police had implicated him in the case by fabricating the facts. 46.1. D.W.1, Smti. Guna Maya is the mother of accused Raju Lama. Her evidence reveals that local residents of her village had destroyed her house alleging involvement of her son Raju Lama in the present case and that he is innocent, police had implicated him in the case by fabricating the facts. They caught her son from her house, and she heard people saying Raju was seen moving in and around the place of occurrence (where the dead body of victim was recovered), but she did not ask her son as to why he was roaming nearby the place of occurrence, immediately before the alleged crime. It is elicited in her cross- examination that all accused persons, present in the dock are friends of Raju Lama before and after the incident and that the place of occurrence is at Sheyaro, located at about 2 to 3 Km from her village Khrimu. On the day of incident, Raju Lama came home at 8 to 9 p.m and did not go out from home till next morning when he was apprehended by local people. She denied that Raju Lama had raped and murdered the victim. However, the evidence of this witness that Raju Lama came home at 8 to 9 pm on the date of incident and that he did not go out appears to be false in view of the evidence of P.W. 2 and 3 as well as P.W. 14. 46.2. DW-2 is Smti Sharmila Tamang, who deposed that accused Dil Bahadur Tamang is her husband. One day, when she came back home from work at around 3 p.m., she learnt that her husband has been arrested by police in the present case and by evening local people gathered in her house and they ransacked the house. Her husband was with her in Khirmu village in her house before his arrest. Her husband has never been involved in this kind of case except he being linked in the present case. It is elicited in cross-examination that on the day of incident, her husband went out from home with the accused persons by 4 p.m and returned home alone by 10 p.m. 46.3. The evidence of DW-3, Shri Sonam Tamang, reveals that accused Raju Lama is the son of his mother's younger sister. He is innocent and he is a Taxi driver at Tawang during the time of incident. The evidence of DW-3, Shri Sonam Tamang, reveals that accused Raju Lama is the son of his mother's younger sister. He is innocent and he is a Taxi driver at Tawang during the time of incident. He used to go to work early morning and comes home by evening time. He had never seen Raju involved in any kind of police case. It is elicited in cross- examination that he does not know, whether on the day of incident, at about 1 to 2 pm, accused Raju Lama, Tenzin, Ratan and Pappu had gone to the residence of deceased. He also cannot say whether Raju Lama was seen driving his Alto car at about 100 meters where the dead body of deceased was found. 46.4. The evidence of DW-4, Shri Karma, reveals that accused Tenzin is his nephew; son of his sister. After his parents got separated, he had been taking care of him since his childhood. Tenzin is very shy boy; never indulged in love affairs with girls and immoral activities. He is shocked to learn that he had been linked in the present case. His evidence also reveals that the accusation leveled against the accused Tenzin is false; he is innocent person. It is elicited in cross-examination that he learnt that Tenzin purchased a motor cycle on the day of incident and he did not hear Tenzin throwing party for his friends after buying motor bike. 46.5. The evidence of DW-5, Smti Thuten Waiser, reveals that in the year 2012, she heard that a girl has been murdered, and that accused Passang Tashi is innocent. On the day of incident, when she returned from Jang market to home, at about 8: 30 p.m. her mother told her that he had gone out with his friends. Her mother came home from her work at 6 p.m. At the time of incident, Passang Tashi was at home at Jang. He has got two house one at Jang and another at Khrimu village. He is innocent and has clean antecedents; he has been falsely implicated in the case by some vested persons. It is elicited in cross-examination that Passang Tashi is also known as "Shanu" at home. She cannot say where Mr. Passang Tashi spent whole night and what sort of activities he did on that night. 46.6. D.W. 6 is accused Kalu Tamang. It is elicited in cross-examination that Passang Tashi is also known as "Shanu" at home. She cannot say where Mr. Passang Tashi spent whole night and what sort of activities he did on that night. 46.6. D.W. 6 is accused Kalu Tamang. His evidence reveals that he is a driver by profession. On 28.08.2012, he went to Mukto to take over Roller and dropped the Roller at Lhao village at 3:30 p.m. The tyre of the vehicle was punctured, so he went to Zero Point Khirmu. The owner of the vehicle came at Zero point and instructed him to go LGG and also handed over the cash amount of Rs. 25,000.00 for expenditure of the vehicle. After repairing of the vehicle, he came back to his home, which is 3 Km away from Zero Point. On reaching his home, he parked the vehicle and then suddenly two bikes and an Alto car appeared before him while he got down from the vehicle. One of the rider of the bikes was alone and other was having a pillion rider. They invited him to accompany them to a party at Khirmu Zero point on the eve of purchasing new bike by co- accused Tenzin. It was around 5 p.m. and they had consumed two bottles beer at Zero point in a Hotel. He came in the other bike. After having the beer, co-accused Tenzin and Raju proposed to go to Jang to pick up co-accused Passang Tashi. Alto was driven by co-accused Raju Lama. All of them went to Jang and reached there at around 6:30 p.m in the house of co-accused Passang Tashi. They came back around 7 p.m. from Jang and on reaching IV Bridge, they had two bottle beer again with fish. Later on, they reached to Zero point, Khirmu and again consumed two bottles of beer. Later on, they went to Craft Center area and had a beer there in the Hotel of Tsering Lambu @ Ngotu. He had seen co- accused Suresh Kumar inside the Alto on reaching Craft Center area. At around 9:30 p.m co- accused Tenzin, Passang Tashi and Sagar Sonar left the Craft center area in their bike. Co-accused Raju Lama also left to call them back. He along with co- accused Dil Bahadur and Suresh Kumar awaited around 15 minutes, but they never returned back. At around 9:30 p.m co- accused Tenzin, Passang Tashi and Sagar Sonar left the Craft center area in their bike. Co-accused Raju Lama also left to call them back. He along with co- accused Dil Bahadur and Suresh Kumar awaited around 15 minutes, but they never returned back. Then three of them came back in the bike to his home around 10 p.m. On next morning, he done his duty of picking up the cement from Craft Center area and left for LGG. Then police came at LGG, at around 10 to 11 pm, and interrogated him and taken him to police station. His evidence also reveals that on reaching to his house, he found that the household articles as well as house were damaged by local villagers and his family was on the road. The police kept him in their custody for safety, as there was hue and cry of public. Medical test was done and all samples were taken. He claimed to be innocent. It is elicited in cross-examination that Passang Tashi was picked up by Tenzin and Raju from his house and that Dil Bahadur, Suresh Kumar, Raju Lama, Tenzin, Passang Tashi and Sagar Sonar and he was present at the Hotel of Miss Ngotu @ Tsering Lamu, except Gor Bahadur. They reached there at around 9 p.m. and left around 10 p.m. It is also elicited that it may be true that the co-accused Raju Lama search them in and around India Gate near PO around 10 p.m. 46.7. Accused Dil Bahadur Tamang had examined himself as DW-7. His evidence reveals that on 28.08.2012, at around 2 p.m. while he was staying at home, then Tenzin and Sagar came to his house in one bike and told that Tenzin Lama had purchased a new bike and wanted to have party and so he joined them and went to Craft Center in his bike along with Raju and Tenzin and Sagar went in new bike. There, they had two bottles of beer at Craft Center and went to India Gate and had two bottles beer and came back to 3 Km Khirmu, at around 3:30 pm to 4 pm On reaching at Khirmu, Raju took out his Alto car and four of them had proceeded towards Zero point, and Kalu Tamang was picked up on the way and reached at Zero point and had two bottles beer there. At around 5:30 p.m., five of them went to Jang to pick up Passang Tashi and reached Jang at around 6:30 p.m. in the house of co-accused Passang Tashi and came back around 7 p.m. from Jang and on reaching IV Bridge, they had two bottle beers again. Later on, they reached at Zero point at Khirmu and again consumed two bottles of beer there. Subsequently, they went to Craft Center area and on the way they picked up Suresh Kumar and reached Craft Center area and had two bottle beer and half IB (whiskey) in the Hotel of Tsering Lamu @ Ngotu. At around 9:30 pm, co- accused Tenzin, Passang Tashi and Sagar Sonar left the Craft Center area in their bike. Then he, along with Kalu Tamang and Suresh Kumar awaited around 15 minutes. But, they never returned. Then three of them came back in the bike to his home at around 10 pm. On next day morning, accused Raju was surrounded by the local people. He then left for his duty. Then villagers told him that he was called by the police. He went to the police as they were at Khirmu area. The household articles as well as his house were damaged by local villagers and his family was on the road. Then police took him to the police station and interrogated him. Then police tortured him in the custody. Medical test was done and all samples were taken. On two occasions blood samples were collected, once in a Hospital and other at Tawang Police Station. He claimed himself to be innocent. He has been implicated in the case, as he is from outside of the State. It is elicited in cross-examination that his house was damaged at around 10 to 11 a.m., while he was at his work site beyond India Gate. He claimed himself to be innocent. He has been implicated in the case, as he is from outside of the State. It is elicited in cross-examination that his house was damaged at around 10 to 11 a.m., while he was at his work site beyond India Gate. He admitted that on 28.08.2012, he along with Tenzin, Sagar Sonar, Raju reached India Gate at around 3 p.m. and stayed for half an hour. He did not know if the co-accused Raju Lama searched them in and around India Gate near PO around 10 p.m. He denied that he had asked PW-5 about the returning of the deceased after school time. 46.8. D.W.8- accused Tenzin, D.W.9- accused Sagar Sonar, D.W.10- accused Raju Lama, D.W.11- accused Gor Bahadur had dittoed the same thing like D.W. 6 Kalu Tamang and D.W.7 Dilbahadur Tamang. 46.9. D.W. 12 is Passang Tassi, the present appellant. His evidence reveals that on 28.08.2012, during day time he was at his home at around 11 to 11:30 a.m. He went to Zero point Khirmu to fetch vehicle in order to go to Jang. At around 1 p.m., one TATA SUMO of Jang came at Zero Point Khirmu and he boarded in that vehicle. At around 3:30 p.m., he reached at his home. At around 6:30 p.m., his friends- Shri Tenzin and Raju Lama came to his house and he was told by Tenzin that he had purchased a new bike for which he wanted to throw a party for them. On reaching back IV Bridge, they had two bottle beers again and went to Zero Point Khirmu and had two bottles beer and they proceeded to Lower Gompa/Craft Center and had two bottles beer. At around 9:30 p.m., he along with Tenzin and Sagar Sonar left the Craft Center area in one bike. Tenzin dropped him at his home and he slept. On next day morning, he went along with Tenzin to Mukto area, and after some time someone had informed Tenzin that police were looking for them. So, they had volunteered to go Tawang Police Station. They were arrested by police and tortured them. During interrogation, he denied having involved in the incident. His blood samples were collected twice, once in Hospital and another in Police Station. He claimed himself to be innocent. So, they had volunteered to go Tawang Police Station. They were arrested by police and tortured them. During interrogation, he denied having involved in the incident. His blood samples were collected twice, once in Hospital and another in Police Station. He claimed himself to be innocent. It is elicited in cross-examination that usually, he used to reside at Jang with his parents, but sometimes he used to stay with his sister at Khirmu, due to his work. On the day of incident, he left Khirmu to Jang by Sumo at around 1 p.m. to 1:30 p.m. He denied that Raju Lama was with him from 9 to 12 noon on the day of incident. He denied that he met Raju Lama while he was leaving for Jang from Zero point Khirmu. It is also elicited that the statement of Raju Lama was false if he says that he was with him on the day of incident from 9 to 12 noon as recorded by the police. However, he admitted that he along with Tenzin and Sagar Sonar left the Hotel without informing the other accused. It is elicited that the finding of the FSL report must be negative. The distance between Khrimu to Jang is around 40 KM. 46.10. A careful analysis of the evidence so adduced by appellant Passang Tassi reveals that though he testified that at around 9:30 p.m. on the day of incident, he along with Tenzin and Sagar Sonar left the Craft Center area in one bike. Tenzin dropped him at his home and he slept, yet, said piece of evidence appears to be incorrect on the face of the evidence of his sister- P.W. 4, namely, Miss Nawang Drema, and his mother P.W. 5 Smti. Rinchin Drema. Notably, his sister deposed that Passang Tashi was taken away from home by two of his friends, namely, Tenzin and she do not know the other in that evening at around 6 to 7 PM and thereafter, he did not return home as he was living at Khrimo. Also, the evidence of his mother reveals that her son left the house at 6 pm and did not return again. Thus, the evidence of accused Passang Tashi as D.W.12, failed to command acceptance of this Court. 47. Also, the evidence of his mother reveals that her son left the house at 6 pm and did not return again. Thus, the evidence of accused Passang Tashi as D.W.12, failed to command acceptance of this Court. 47. Thus, from the evidence of these three witnesses, i.e.- PW-19, PW- 20 and PW-21 and P-Exhibit-2, the post-mortem report and P-Exhibit-5, the inquest report, goes a long way to establish beyond all reasonable doubt that the death of the deceased was as a result of head injury that could be caused by blunt weapon or object. Thus, apparently the death of the victim girl appears to be homicidal in nature. As per evidence of P.W.19, 20 and 21, the death of the victim took place in between 12 pm of 28.08.2012 to 12 am of 29.08.2012. 48. But, as already stated, there is no direct evidence of committing the offence by the present appellant. In their cross-examination P.W.22 and 23 clearly admitted that except contradictory statement of appellant Passang Tashi and the medical evidence, there is no other material against him. Thus, from the evidence of the prosecution witnesses as well as court witnesses and also from the evidence adduced by defence witnesses, it becomes crystal clear that there is no direct evidence against the present appellant Passang Tashi. The entire prosecution case rest upon the circumstantial evidence and also upon the DNA report. 49. However, Ms. Jini, the learned Addl. P.P. submits that the though there is no direct evidence, yet, there are evidence to show that on the relevant night, the appellant he was with the other accused persons, who had enquired from PW-8- namely, Shri Pema Dhondup, as to whether the victim girl left or not and P.W.6 - Miss Choikey, had seen four accused, namely Tenzin, Raju Lama, Ratan and Papu proceeding towards the house of the victim girl in two bikes. P.W.-7 - Smti. Tsering Jangmu had also seen two motor bikes proceeding Sheru village, where the house of victim is situated and she identified accused Raju Lama in one of the bike, and that on the night of occurrence, the appellant was not present in his house and he left the house at about 6 pm and did not return home, as is evident from the evidence of Miss Nawang Drema -P.W. 4 and Smti. Rinchin Drema- P.W. 5, and that as per P.W.- 15, namely, Miss Tenzin Tsomu, accused Tenzin, Papu and Raju Lama had purchased two beers from her shop situated at India Gate and they left her shop at 3.30 pm and that as per PW-17, namely, Mrs. Tsering Lhamu, the present appellant and Raju, Kalu, Papu, Suraj Kumar, Tenzing had taken beer at around 8-9 pm in her restaurant situated at Yangla Gompa and they left her restaurant in two motor bikes and one Alto car and as per P.W. 18, on one day about three months back accused Raju Lama had asked her and the victim to go with him in his vehicle, which they had refused and further, as per evidence of P.W. 2 and 3 they had found accused Raju Lama in his Alto Car at India Gate, coupled with above, the own evidence of the appellant and the evidence of other accused proves that he was with them on the relevant night and that he left his house at Jung with Tenzin and Raju Lama, who came to his house and told him that Tenzin had purchased a new bike and will throw a party and then on reaching back IV Bridge, they had two bottle beer again and went to Zero Point Khirmu had two bottles beer and they proceeded to Lower Gompa/Craft center and had two bottles beer and at around 9:30 p.m., he along with Tenzin and Sagar Sonar left the Craft Center area in one bike and Tenzin dropped him at his home and he slept and the said piece of evidence of the appellant has already held to be incorrect on the face of the evidence of his sister- P.W. 4, namely, Miss Nawang Drema, and his mother P.W. 5 Smti. Rinchin Drema, coupled with all these circumstances, the DNA report goes a long way to establish the guilt of the appellant with the charge under Section 376 IPC, and also under Section 302 IPC, yet we are unable record our concurrence to her submission for the reason which we will be discussing after a short while. Before, that we deemed it appropriate to peruse the finding of the learned Trial Court. Finding of the learned Trial Court:- 50. Before, that we deemed it appropriate to peruse the finding of the learned Trial Court. Finding of the learned Trial Court:- 50. It appears from the impugned judgment and order of conviction that the learned Trial Court, upon the evidence discussed herein above, had held that a careful perusal of the DNA report reveals that the amplified loci of vaginal swab of the deceased matches with the amplified loci of the DNA of accused Passang Tashi. The learned Trial Court had also held that from the evidence available on record reveals that the dead body of deceased victim girl was recovered in almost naked condition with multiple injury and her wearing apparels were torn and pulled off. The inquest report P.Ex-5 and PM report P. Ex. 2 of dead body of deceased victim girl reveals that she was subjected to sexual assault at the time of her murder. PW-19, 20 and 21, who are Doctors conducting PME of deceased also affirmed that deceased was raped during the time of her murder. Vaginal swab, urethral swab of the deceased and dried white patches from inner thigh of deceased were collected and the same were handed over to the IO for FSL examination. CW-5, FSL expert has affirmed that during examination of the urethral swab and vaginal swab of the deceased, human spermatozoa was found. On further examination, CW-4, FSL expert has found that the DNA of the vaginal swab and urethral swab of the deceased victim girl matched with DNA of accused Passang Tashi. In view of above, it is found from the material evidences available on record loudly reveal that accused Passang Tashi (Shanu) is involved in rape and murder of deceased victim girl. 50.1 The learned Trial Court had also held that the prosecution alleged that all of the accused persons in furtherance of their commons intention have committed rape and murder of the deceased victim. Evidence reveal that accused Raju Lama used to tease the deceased earlier. On 28.08.2012, after the school got over accused Dil Bahadur with another searched for the victim and the accused persons namely Raju Lama, Gor Bahadur, Dil Bahadur and Tenzin went towards the residence of victim girl at which time she was proceeding alone to her residence. Said accused persons had purchased beer from PW-15 at about 4:30 pm. Since 4:30 pm, victim was found missing. Said accused persons had purchased beer from PW-15 at about 4:30 pm. Since 4:30 pm, victim was found missing. Thereafter, at about 8 to 9 pm, said accused persons with Suraj Tamang and Passang Tashi (Shanu) have consumed more beer at the restaurant of PW-17. Both shop and restaurant are on the way which leads to the residence of victim girl. During the night when PW-1, 2 and 3 were searching for the victim they met accused Raju Lama and another who were roaming on Alto car of Raju Lama in suspicious manner at the place where from dead body of the victim was recovered next morning. Above evidences creates strong doubt against all of the above named accused persons for their involvement in commission of rape and murder of deceased victim. It is the established principle of law that suspicion or doubt however strong, it may cannot be treated as proof. Hence, the learned Trial Court found that except accused Passang Tashi, prosecution could not prove the guilt of other accused persons beyond reasonable doubt. 50.2 The learned Trial Court had also held that during trial of the case, sister and mother of the accused Passang Tashi (Shanu) is examined as PW-4 & 5. Besides, the accused persons have examined 12 defense witnesses. Accused Passang Tashi has examined himself as DW-12 and one Thuten Waiser as DW-5. From examination of said DW-5 & 12, it is observed that they have failed to disprove the fact that Passang Tashi was involved in commission of the offence. Though Passang Tashi has taken the plea of alibi but the prosecution had proved it beyond reasonable doubt that his spermatozoa were found in the vaginal and urethral swab of the deceased victim girl. From examination of evidences on record including DWs, it is observed that accused Passang Tashi was not present at his residence on 28.08.2012, and he was roaming with other accused persons consuming alcoholic drinks at several places nearby the residence of deceased victim and the place where her dead body was recovered. It is found from the record of the case that there is strong suspicion against all of the accused persons that they are involved in rape and murder of the deceased victim but there is no concrete prove against other accused persons except Passang Tashi. It is found from the record of the case that there is strong suspicion against all of the accused persons that they are involved in rape and murder of the deceased victim but there is no concrete prove against other accused persons except Passang Tashi. 50.3 The learned Trial Court had also held that learned Counsel for defence has submitted and relied upon judgment of Bombay High Court passed in Manikson of Sitaram Jibhkate vs. State of Maharashtra , reported in 2011 ALLMR (Clr) 2474. In the said decision, it is discussed that DNA test is ultimately an opinion and does not have the value of a conclusive proof. Defence further relies upon the decision of Gujarat High Court passed in Premjibhai Bhacalbhai Khasia vs. State of Gujarat , reported in 2009 4 Crimes (HC) 281. In the said decision also it was held that there was no ocular evidence to the occurrence and DNA report without corroboration could not be the basis of conviction. Thereafter, the learned Trial Court held that after careful perusal of both the judgments, so relied on by the defence, held that in both of the cases, there was no proof regarding the fact of the offence, except the DNA report. But, in the present case prosecution has proved it beyond reasonable doubt that deceased victim was raped and murder and spermatozoa of accused Passang Tashi was found from the vaginal and urethra swab of the deceased. 50.4. Thereafter, relying upon a decision of this Court in David Vanlaltlanchhuaha vs. State of Mizoram, reported in 2015 (5) GLT 470, the learned Trial Court had held that while discussing judgment of Apex Court, Hon’ble Gauhati High Court has held that a positive report of DNA can be of great significance, where there is supporting evidence, however, such report cannot be accepted in isolation as the sole piece of evidence, to record conviction. Thereafter, the learned Trial Court had went on to observe that the victim girl was missing on the way at about 4:30 p.m. on 28.08.2012, when she was returning from her school and her dead body was recovered next day in the morning in almost naked condition with multiple injury and her wearing apparels were torn and put off. The inquest report, P.Ex-5 and PME report P. Ex. The inquest report, P.Ex-5 and PME report P. Ex. 2 of dead body of deceased victim girl reveal that she was subjected to sexual assault at the time of her murder. PW-19, 20 and 21, who are Doctors conducting PME of deceased also affirmed that deceased was raped during the time of her murder. Vaginal swab, urethral swab of the deceased and dried white patches from inner thigh of deceased were collected and the same were handed over to the IO for FSL examination. CW-5, FSL expert has affirmed that during examination of the urethral swab and vaginal swab of the deceased, human spermatozoa was found. On further examination, CW-4, FSL expert has found that the DNA of the vaginal swab and urethral swab of the deceased victim girl matched with DNA of accused Passang Tashi. Above materials available in records shows that entire evidence corroborates with the FSL report which established beyond reasonable doubt that accused Passang Tashi has committed rape and murder of deceased victim girl. There is strong suspicion against other accused persons for their involvement in commission of said offence but the prosecution could not prove the offence against them beyond reasonable doubt. 50.5. Thereafter, the learned Trail Court had held that the prosecution has proved its case beyond reasonable doubt that accused Passang Tashi has committed an offence of rape and murder of the deceased victim girl and thereby committed offences punishable under Section 376 and 302 IPC. However, prosecution could not prove the offences against other accused persons. 50.6. We have examined the finding, so recorded by the learned Trial Court above, in the light of the materials available on the record. Before, a discussion is directed as to the merit of the said finding, we deemed it appropriate to understand the DNA Report and its significance in administration of criminal justice. DNA Report and its Significance:- 51. DNA report and its significance in administration of criminal justice was considered in the case of Mukesh and another vs. State for NCT of Delhi and others , reported in (2017) 6 SCC 1 , by a three Judges Bench of Hon’ble Supreme Court. In paragraph 228, while reviewing and discussing its previous decisions, Hon’ble Supreme Court has held as under:- " 228. In paragraph 228, while reviewing and discussing its previous decisions, Hon’ble Supreme Court has held as under:- " 228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non- acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted. " 51.1. In the said case, Hon’ble Supreme Court has also discussed and considered the provisions contained in Section 53A of the Code of Criminal Procedure, 1973, which is a provision for examination of person accused of rape by medical practitioner and which also includes the description of material taken from the person of the accused for DNA profiling and also considering Section 164A of the Cr.P.C. which also includes the description of material taken from the person of the woman for DNA profiling. 51.2. This issue of DNA profiling was again considered by another three Judges Bench of Hon’ble Supreme Court, in a recent case in Manoj v. State of M.P. , reported in (2023) 2 SCC 353 wherein it has held as under:- 151. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata [ DNA Profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007).] was relied upon. The relevant extracts of the article are reproduced below:- "Deoxyribonucleic acid (DNA) is genetic materia present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with intercalated proteins. Twenty-three pairs of chromosomes present in each nucleated cells and an individual inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All information about internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases : Adenine (A), Guanine (G), Thymine (T) and Cytosine (C) along with sugar phosphate backbone. A human haploid cell contains 3 billion bases approx. All information about internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases : Adenine (A), Guanine (G), Thymine (T) and Cytosine (C) along with sugar phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA) found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1 % of DNA (about 3 million bases) differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples. *** 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 victim(s) and/or suspect(s) 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 azoo11permic 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. 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 azoo11permic 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 & 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. (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 ne eds 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 or 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. 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 victim(s), suspect(s), scene of crime for solving the case should be identified, preserved, packed and sent for DNA profiling." 152. In an earlier judgment, R v. Dohoney & Adams [ R v. Dohoney & Adams , (1997) 1 Crl App Rep 369 (CA)] the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials : (1) the scientist should adduce the evidence of the DNA comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based. 153. The Law Commission of India in its Report [185th Report, on Review of the Indian EVIDENCE ACT , 2003.] , observed as follows:- "DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not ‚match?, then this will prove a lack of ident ity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA ‚profile? or ‚fingerprint? is found. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA ‚profile? or ‚fingerprint? is found. It may be, for example, that the relevant profile is found in 1 person in every 1,00,000 : This is described as the ‚random occurrence ratio? (Phipson 1999, 15th Edn., Para 14.32). Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law." (emphasis in original) 154. In Dharam Deo Yadav v. State of U.P. reported in (2014) 5 SCC 509 , this Court discussed the reliability of DNA evidence in a criminal trial, and held as follows : (SCC pp. 528-29, para 36) " 36 . The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made up of a double stranded structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. … DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory." 155. The US Supreme Court in District Attorney's Office for the Third Judicial District v. Osborne [ District Attorney's Office for the Third Judicial District v. Osborne , 2009 SCC OnLine US SC 73, dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. The US Supreme Court in District Attorney's Office for the Third Judicial District v. Osborne [ District Attorney's Office for the Third Judicial District v. Osborne , 2009 SCC OnLine US SC 73, dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that: (SCC OnLine US SC) "Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. … DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others." 156. Several decisions of this Court — Pantangi Balarama Venkata Ganesh v. State of A.P. reported in (2009) 14 SCC 607, Santosh Kumar Singh v. State , reported in (2010) 9 SCC 747, State of T.N. v. John David reported in (2011) 5 SCC 509, Krishan Kumar Malik v. State of Haryana reported in (2011) 7 SCC 130 , Surendra Koli v. State of U.P. , reported in (2011) 4 SCC 80 , Sandeep v. State of U.P. reported in (2012) 6 SCC 107 , Rajkumar v. State of M.P. reported in, (2014) 5 SCC 353 , and Mukesh v. State (NCT of Delhi) reported in (2017) 6 SCC 1 , have dealt with the increasing importance of DNA evidence. This Court has also emphasised the need for assuring quality control, about the samples, as well as the technique for testing in Anil v. State of Maharashtra reported in (2014) 4 SCC 69 : Anil v. State of Maharashtra , reported in (2014) 4 SCC 69 : " 18 . Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory." 157. This Court, in one of its recent decisions, Pattu Rajan v. State of T.N., (2019) 4 SCC 771 , considered the value and weight to be attached to a DNA report: " 52 . Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party." 158. This Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate . This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case. 51.3. In the case of Madan Lal v. State of J & K, reported in (1997) 7 SCC 677 , the Hon’ble Supreme Court had held that presence of semen/human spermatozoa on the salwar of the victim is a strong corroborative piece of evidence to the prosecutrix's version even if it has not been established that the human spermatozoa was that of the accused. In the said case, the salwar of the prosecutrix was seized and had been sent to the Chemical Examiner for chemical analysis and the Scientific Officer of the Jammu and Kashmir Forensic Science Laboratory after examining the said salwar reported that chemical and microscopical tests revealed the presence of semen/human spermatozoa on the said salwar. 51.4. The proposition of law that can be crystalised from the aforesaid discussion is that DNA profile is valid and reliable. Its result by and large depends upon the quality control and quality procedure in the laboratory. And if quality in the testing is ensured and the possibility of contamination of evidence is eliminated; then the DNA test report is to be accepted. And being an opinion, the probative value of such evidence has to vary from case to case. 51.5. Now, adverting to the facts of the case in hand, in the light of the aforesaid principles of law, so laid down by the Supreme Court, qua DNA profiling in the matter of Mukesh (supra) and Manoj (supra), it is quite apparent that in the present case, the evidence of CW-4, Dr. Monalisa Choudhury, Scientific Officer, DNA Typing unit, Serology, Director of Forensic Science, Kahilipara, had categorically stated that Exhibit Nos.DNA 576/12, DNA 580/12, DNA 584/12, DNA 588/12, DNA 593/12, DNA 597/12, DNA 601/12 and DNA 605/12, were isolated by organic extraction method and subjected to multiplex PCR reaction using AMP FLSTR Y filer kit and the amplified products along with the control was run on automated DNA. Sequencer and analysis was carried out using gene napper ID 3.7 software with respect to standard lader. In no uncertain terms, she stated that the amplified loci of Exhibit No.DNA 573/12 (vaginal swab) matches with the amplified loci of the exhibit No.DNA 584/12 (Passang Tashi). As discussed herein above, the probative value of her evidence could not be demolished in her cross- examination. Even, not a single suggestion, from the appellant side, to the effect that the sampling was not proper and that there was evidence as to tampering of samples, was put to the C.W. 4 and 5. 51.6. Even, during examination of the I.O., P.W. 22 and 23, also not a single question was put to them about collection of the sample of blood and preservation of the same and about sending of the same to the FSL. 51.7. 51.6. Even, during examination of the I.O., P.W. 22 and 23, also not a single question was put to them about collection of the sample of blood and preservation of the same and about sending of the same to the FSL. 51.7. However, in the instant case, Mr. Tsering has already raised serious doubt about the sample taking process, as no seizure witness was examined by the prosecution to establish the fact that the blood samples were sent to the FSL, Guwahati for DNA analysis. He had emphasized about the integrity of exhibits and control samples and safeguarding the same from the moment of seizure up to completion, by maintaining the chain of custody, right from the time of taking of the samples, to the time of packing, sealing and labeling, but in the instant case, the recollection of samples of the appellant was done on 14.02.2013, at the police station and no independent witnesses were present besides the medical practitioner and police personnel and no record of panchnama, cataloguing the custody of the samples was maintained, leaving enough space for the possibility of contamination and concomitant prospect of diminishment of the control samples. And as such, Mr. Tsering submits, the DNA report prepared from such samples cannot be relied upon. He had also pointed out that the first sample of the appellant and the control samples of the victim was collected on 29.08.2012, at District Hospital, Tawang, however, the control samples were sent to FSL, Guwahati on 06.09.2012 and there is delay in sending the samples and this delay remained unexplained and as such, the possibility of contamination and concomitant prospect of diminishment in value cannot be ruled out for which the DNA analysis conducted on the control samples received on 06.09.2012 is inadmissible. He had also raised concern about the second FSL report, dated 15.03.2013, which reveals that even the blood samples were taken for the second time on 14.02.2013, however, the DNA analysis report furnished before the learned Trial Court states that the samples were received on 06.09.2012, meaning thereby the fresh sample recollected on 14.02.2013, were never used for the purpose of DNA analysis, rather the denominated and contaminated samples sent on 06.09.2012 is taken up for DNA analysis and thereby rendering the FSL report, dated 15.03.2013 inadmissible. 51.8. The contention of Mr. 51.8. The contention of Mr. Tsering, the learned counsel for the appellant Passang Tashi, when considered in the light of the proposition of law laid down in the cases discussed in the foregoing para, appears to have substance. Indisputably, the investigating officers, had not seized the samples so collected from the accused persons as well as from the dead body of the victim. Also there appears to be delay in sending the same to the FSL. While the sample of the victim was collected on 29.08.2012 at District Hospital at Tawang, the same were sent to FSL, Guwahati only on 06.09.2012. The delay remained unexplained. Besides, during the intervening period, in whose custody the samples were, and how the same were kept has nowhere been explained. No evidence was led as regard the chain of custody of the samples and its packaging, sealing and labeling. Further, recollection of samples of the appellant was done on 14.02.2013, at the police station and no independent witnesses were present besides the medical practitioner and police personnel and no record of panchnama, cataloguing the custody of the samples was maintained, and thereby leaving enough space for the possibility of contamination and concomitant prospect of diminishment of the control samples. Notably, the evidence of C.W.5 indicates that blood group of some of the samples could not be done due to to denoromination of blood. Mr. Tsering, thus, has rightly pointed out that the DNA report prepared from such samples cannot be relied upon. And the decisions in Prakash Nishad @ Kewat Zinak Nishad (supra) and in Rahul (supra) also strengthened his submission. 51.9. Notably, in the case of Prakash Nishad @ Kewat Zinak Nishad (supra), Hon’ble Supreme Court has held as under:- “ 66. In the present case, even though, the DNA evidence by way of a report was present, its reliability is not infallible, especially not so in light of the fact that the uncompromised nature of such evidence cannot be established; and other that cogent evidence as can be seen from our discussion above, is absent almost in its entirety. 67. Unfortunately, the courts below did not go into all the aforesaid aspects and presumptuously assumed the guilt of the appellant and held him to have committed the crime. 51.10. Again in the case of Rahul (supra), Hon’ble Supreme Court has held as under:- " 36. 67. Unfortunately, the courts below did not go into all the aforesaid aspects and presumptuously assumed the guilt of the appellant and held him to have committed the crime. 51.10. Again in the case of Rahul (supra), Hon’ble Supreme Court has held as under:- " 36. The learned Amicus Curiae has also assailed the forensic evidence i.e. the report regarding the DNA profiling dated 18-4-2012 (Ext. P-23/1) giving incriminating findings. She vehemently submitted that apart from the fact that the collection of the samples sent for examination itself was very doubtful, the said forensic evidence was neither scientifically nor legally proved and could not have been used as a circumstance against the appellant-accused. The Court finds substance in the said submissions made by the Amicus Curiae. The DNA evidence is in the nature of opinion evidence as envisaged under Section 45 and like any other opinion evidence, its probative value varies from case to case. " 52. Thus, the FSL report, dated 15.03.2013, in respect of the appellant Passang Tashi, though appears to be positive, yet the same is clouded with suspicion. The Law with Regard to Circumstantial Evidence:- 53. The law with regard to circumstantial evidence is well settled in catena of decisions of Hon’ble Supreme Court. In a case where the prosecution relies upon the circumstantial evidence, it must not only prove the circumstances but should link them in such a fashion so as to form an unending chain i.e. the guilt of the accused. But if there is any chance of the accused being innocent or the crime has been committed by some other person, then the accused has to be given the benefit of doubt and on the basis of circumstantial evidence, he cannot be convicted. Reference in this context can be made to decision of Hon’ble Supreme Court in Manoj (supra) where in the principle, applicable to appreciation of evidence, in case of circumstantial evidence was dealt with as under:- " 166. Reference in this context can be made to decision of Hon’ble Supreme Court in Manoj (supra) where in the principle, applicable to appreciation of evidence, in case of circumstantial evidence was dealt with as under:- " 166. In one of its earlier decisions this Court had in Hanumant v. State of M.P. , (1952) 2 SCC 71 indicated that the correct approach of courts trying criminal cases involving circumstantial evidence should be that the circumstances alleged, be fully established; all the facts so established should be consistent only with hypothesis of the guilt of the accused; circumstances should be conclusive and of such tendency that they should be such as to exclude every hypothesis but the one proposed to be proved. This view was followed later in Tufail v. State of U.P. (1969) 3 SCC 198 and Ram Gopal vs. State of Maharashtra (1972) 4 SCC 625]. All these and other decisions were revisited in the three-Judge Bench decision in Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 , and the Court enunciated a set of principles that every court trying criminal cases entirely based on circumstantial evidence had to follow. " 53.1. In the case of Sharad Birdhichand Sarda v. State of Maharashtra , reported in (1984) 4 SCC 116 , Hon’ble Supreme Court has held that the conditions which must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence are as under:- (1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 53.2. 53.2. In Sharad Birdhichand Sarda (supra), the Supreme Court has further held that suspicion, however strong, cannot take the place of legal proof. It has also been held that the well established rule of criminal justice is that “fouler the crime higher the proof” and in case of capital sentence, a very careful, cautious and meticulous approach was necessary to be made. 54. In the case in hand, from the evidence discussed above and also from the submission of learned counsel for both the parties, following circumstances, in chronological order, emerges and also stands established:- (i) About three months back from the date of incident, Miss Tashi Tsomu and the victim were proceeding on the road and they met accused Raju Lama who asked them if they want to go with him to which they had refused. (ii) On 28.08.2012, accused Tenzin, Papu and Raju Lama had purchased two beers from the shop of P.W.- 15, namely, Miss Tenzin Tsomu, situated at India Gate and they left her shop at 3.30 pm. (iii) On 28.08.2012, at about 4 pm accused Papu Bhaya enquired from P.W. 8, namely, Shri Pema Dhondup, as to whether the victim girl left or not and then he told that she left. (iv) P.W. 8 - Peme Dhondup had seen the victim with four Anis and told her that some boys were looking for her. (v) Four accused, namely, Tenzin, Raju Lama, Ratan and Papu were seen by P.W.6 - Miss Choikey, proceeding towards the house of the victim girl in two bikes. P.W.-7 - Smti. Tsering Jangmu had also seen two motor bikes proceeding Sheru village, where the house of the victim is situated and she identified accused Raju Lama in one of the bike. (vi) After returning home at 5 pm the father, P.W.1 of the victim found his daughter missing from his house. (vii) Appellant Passang Tashi had left the house at about 6 pm on 28.08.2012, with Tenzin and Raju Lama, who came to his house and told him that Tenzin had purchased a new bike and will throw a party. (viii) The appellant - Passang Tashi did not return home, as is evident from the evidence of Miss Nawang Drema -P.W. 4 and Smti. Rinchin Drema- P.W. 5. (viii) The appellant - Passang Tashi did not return home, as is evident from the evidence of Miss Nawang Drema -P.W. 4 and Smti. Rinchin Drema- P.W. 5. (ix) At around 8-9 pm, present appellant Passang Tassi and Raju, Kalu, Papu, Suraj Kumar, Tenzing had took beer in the restaurant of PW-17, namely, Mrs. Tsering Lhamu situated at Yangla Gompa and they left her restaurant in two motor bikes and one Alto car. (x) Having come to know about missing of the victim, P.W. 2 and 3 started searching the victim and they had found accused Raju Lama in his Alto Car at India Gate, moving here and there. (xi) As per his own evidence, appellant Passang Tashi was with the other accused and having left his house and on reaching back IV Bridge, they had two bottles beer and again went to Zero Point Khirmu and had two bottles beer and they proceeded to Lower Gompa/Craft center and had two bottles beer. (xii) At around 9:30 p.m., he along with Tenzin and Sagar Sonar left the Craft Center area in one bike. Tenzin dropped him at his home and he slept. But, the said piece of evidence of the appellant has already held to be incorrect on the face of the evidence of his sister- P.W. 4, namely, Miss Nawang Drema, and his mother P.W. 5, Smti. Rinchin Drema. (xiii) Dead body of the victim was found at Ngosengpho, near Shyaro village with injuries over her different parts of her body. (xiv) P.M. Report indicates her cause of death as head injury caused by blunt weapon or object; (xv) Doctors conducting post mortem, found the vaginal opening of the victim 5 x 5 cm with foul smelling, which could be caused not only by sexual intercourse. Doctors concluded that the victim had been sexually assaulted because of presence of corrugated and torn hymen which was of recent torn. (xvi) The accused were arrested and on examination of accused Raju Lama, bruise injury on lower lip, contuse lacerated wound on lower lips, bruise on right clabicular area and abrasion on left shoulder were found on his person. Doctors concluded that the victim had been sexually assaulted because of presence of corrugated and torn hymen which was of recent torn. (xvi) The accused were arrested and on examination of accused Raju Lama, bruise injury on lower lip, contuse lacerated wound on lower lips, bruise on right clabicular area and abrasion on left shoulder were found on his person. Multiple injuries on upper arm and forearm, right hand lateral aspect, multiple bruise on flexor on forearm right hand, abrasion 5 x 0.2 cm on flexor surface on forearm right hand, lineal cut .5 to .1 cm on palm left hand on the person of accused Gor Bahadur Sonar. No injury was found on the person of accused Dil Bahadur Tamang & Sagar Sonar, Passang Tashi, and Tenzing. However, external injury of small abrasion 0.5x .5 cm injury on trachea (neck), abrasion measuring 0.5x 0.5 cm. and another abrasion on neck, measuring 0.5 x 0.5 cm. and also another abrasion injury on right shoulder measuring 7 x 0.5 cm. were found on the body of Suresh Gurung. (xvii) Samples of blood were collected and forwarded to the FSL with vaginal swab and the DNA of appellant Passang Tashi was found matched with that of the vaginal swab of the deceased victim. (xviii) Appellant failed to offer any explanation, let alone a plausible one as to how his DNA came to be detected in the vaginal swab of the deceased victim, in his examination under Section 313 Cr.P.C. 55. However, this chain of circumstances, which the learned Addl. P.P. claimed to have been established from the evidence on the record and the learned Trial Court had also relied upon in convicting the appellant Passang Tashi, cannot be said to be complete, as the prosecution side could not lead any evidence as to what had happened to the victim, when she parted with the company of the four Anis, after school hours, at around 4 pm, till recovery of her dead body on the next day morning at Ngosengpho, near Shyaro village, with injuries over different parts of her body. There is no iota of evidence, either to suggest about kidnapping her and subjecting her to torture or murdering her, except however, the DNA report. 56. There is no iota of evidence, either to suggest about kidnapping her and subjecting her to torture or murdering her, except however, the DNA report. 56. But, it is well settled in the case of Manoj (supra) that though Hon’ble Supreme Court, had relied on DNA reports, in the past, where the guilt of an accused was sought to be established, said reliance was to corroborate only. Further, Hon’ble Supreme Court had highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case. A co- ordinate Bench of this Court also in the case of David Vanlaltlanchhuaha (supra) held that DNA report cannot be accepted in isolation as the sole piece of evidence to record conviction. 57. We have carefully gone through the other decisions referred by Mr. Tsering, learned counsel for the appellant. There is no quarrel about the proposition of law laid down in the aforementioned decisions, but, for the purpose of deciding the present appeal, reference to all those decisions are found to be not necessary. 58. To recapitulate, on the following grounds, we have arrived at a conclusion that the prosecution side has failed to discharge its burden of proving the charges against the appellant Passang Tashi beyond all reasonable doubt:- (i) There is no direct evidence against the appellant Passang Tashi; (ii) Though the prosecution side had relied only upon positive DNA report, the same is clouded with suspicion in respect of collection and its safe custody from the date of collection till delivering the same in FSL and the samples were not seized and no seizure witnesses had been examined by the prosecution; (iii) The circumstantial evidences, upon which the prosecution side and also the learned Trial Court had relied upon, failed to form a chain so complete to unerringly point towards the guilt of the appellant; (iv) The prosecution side could not led any evidence as to what had happened to the victim when she parted with the company of the four Anis, after school hours, at around 4 pm, till recovery of her dead body on the next day morning at Ngosengpho, near Shyaro village, with injuries over different parts of her body. (v) Though the learned Trial Court had made a reference to last seen together theory, the same is not applicable as none of the prosecution witnesses had seen the victim with any of the accused persons, not to speak of the present appellant; (vi) Admittedly, P.W.22 and 23 had not found any evidence against the present appellant, except however some contradiction in his statement made before them and except, however, the DNA report; (vii) Contradiction in the statement of the accused before the I.O., cannot be considered as circumstantial evidence; (viii) Except the circumstances, what has been discussed herein above, there is no iota of evidence either to suggest about kidnapping the victim and subjecting her to torture or murdering her by the present appellant, except however, the DNA report, which is also clouded with suspicions; (ix) There is no circumstantial evidence as contended by the learned Addl. P.P. and as held by the learned Trial Court to lend corroboration to the DNA report; (x) Though the appellant had failed to offer any explanation as to how the vaginal swab of the victim came to be matched with his blood sample, yet, this alone cannot be taken into account to arrive at a finding of guilt of the appellant, while the collection of sample and its custody and sending of the same to the FSL itself clouded with suspicion. 59. We have also considered the submission of Ms. Jini, learned Additional Public Prosecutor and also carefully gone through the decisions referred by her. But, for the reason discussed herein above, we are in respectful disagreement with her submission and also with the finding of guilt, so recorded by the learned Trial Court. There is no doubt that the charges are very heinous. A young girl lost her life, that too in a most brutal and heinous manner. But, despite being heinous, in the given facts and circumstances on the record, we are constrained to hold that the prosecution side has failed to discharge its burden of proving the charges against the accused beyond all reasonable doubt. Notably, proof beyond reasonable doubt is the basic requirement, for holding a person guilty, in view of the criminal jurisprudence, being developed in our country, by way of judicial pronouncement. Finding of the Court:- 60. In the result, we find sufficient merit in this appeal and accordingly, the same stands allowed. Notably, proof beyond reasonable doubt is the basic requirement, for holding a person guilty, in view of the criminal jurisprudence, being developed in our country, by way of judicial pronouncement. Finding of the Court:- 60. In the result, we find sufficient merit in this appeal and accordingly, the same stands allowed. Conviction of appellant- Passang Tashi, vide impugned judgment dated 10.01.2014 and sentence vide order, dated 24.01.2024, stands set aside and quashed. Consequently, he shall be released from the custody, forthwith. 61. The learned Trial Court, in the impugned judgment and order had referred the case to the District Legal Services Authority, for payment of compensation to the family members of the victim, as provided under the Arunachal Pradesh Victim Compensation Scheme, 2011. If in the meantime, the entitled compensation is not paid to the victim’s family, the same shall be paid forthwith. A copy of this judgment be sent to the Secretary, State Legal Services Authority, Arunachal Pradesh for ensuring compliance of the same. 62. The learned Legal Aid Counsel, Jumgam Jini, shall be paid the remuneration, as per entitlement, under the relevant Rules. 63. Send down the record of the learned Trial Court with a copy of this judgment and order.