Judgment : (Sanjay K. Agrawal, J.) 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 09.05.2017, passed by the learned Fifth/ Special Additional Sessions Judge (F.T.C.) Durg in Special Sessions Trial No.86/2015, by which the appellant herein has been convicted for offences under Sections 302 & 376(A) of I.P.C. and Section 5(l)(m)(r) & 6 of the POCSO Act and sentenced as under : CONVICTION SENTENCE U/s. 302 of I.P.C. : Life imprisonment and fine of Rs. 1000/- in default of payment of fine, 3 months' additional rigorous imprisonment. U/s. 376(A) of I.P.C. : Life imprisonment and fine of Rs. 1000/- in default of payment of fine, 3 months' additional rigorous imprisonment. Section 5 (l)(m) (r) & 6 of the POCSO Act. : Life imprisonment and fine of Rs. 1000/- in default of payment of fine, 3 months' additional rigorous imprisonment. All the sentences to run concurrently. 2. Case of the prosecution, in brief, is that on 22.05.2015, at 3:00 to 5:00 P.M., in a room situated at Nanda Industrial Area, Mangal Bazar, Police Station- Jamul, District Durg, the appellant herein aggravated penetrative sexual assault to the minor victim and thereafter, committed her murder by strangulation and thereby committed the aforesaid offences. On the same day i.e. 22.05.2015 at 5:15 P.M., FIR was lodged against unknown person vide Ex.P-1 by uncle of the deceased Omprakash Tiwari (PW-1). Merg Intimation was registered vide Ex.P-5, Nazari Naksha was prepared vide Ex.P-3, Inquest was conducted vide Ex.P-7 and dead body of deceased was subjected to post-mortem, which was conducted by Dr. P. Akhtar (PW-19), who proved the post-mortem report vide Ex.P-43, according to which, cause of death was stated to be asphyxia due to strangulation and as per the statement of the Doctor, death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-17), his underwear & T-shirt were seized vide Ex.P-18. The chocolate rapper was seized from the spot vide Ex.P-9 and the vaginal slides of the deceased and her clothes were seized vide Ex. P-12, which were sent for chemical examination to FSL along- with other seized articles and as per FSL report (Ex.P-42C), blood was found on the slides i.e. Article- H and human blood was found on the shirt i.e. Article-I and stains of human sperm were not found on the seized articles. P-12, which were sent for chemical examination to FSL along- with other seized articles and as per FSL report (Ex.P-42C), blood was found on the slides i.e. Article- H and human blood was found on the shirt i.e. Article-I and stains of human sperm were not found on the seized articles. After due investigation, appellant was charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 19 witnesses and exhibited 43 documents and the appellant-accused in support of his defence has examined only two witness DW-1 & DW-2, but not exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the aforesaid offences and sentenced him as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred. 5. Ms. Nirupama Bajpai, learned counsel for the appellant, would submit that the theory of last seen together by Hulasiya Dewangan (PW-2) is not established; the confessional statement of the appellant in shape of memorandum, which has been relied upon by the trial Court, is inadmissible in evidence and the other incriminating circumstance has also not been established; therefore, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Sharad Mishra, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences. He further submits that the incriminating circumstances which have been culled out by the trial Court in para 26 of its judgment are duly established; therefore, the appellant is not entitled for acquittal and the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question, for consideration, as to whether the death of victim/deceased was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-43, proved by Dr. P. Akhtar (PW-19), according to which, cause of death was stated to be asphyxia due to strangulation and as per the statement of Doctor (PW- 19) death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The appellant has been convicted for the offences of rape and murder of the minor victim. For the offence of rape, the trial Court has basically relied upon the statement of Dr. P.Akhtar (PW-19) who has examined the victim/deceased and found the external & internal injuries on the body of the victim as per para 10 of his statement and reached to the conclusion that the victim/deceased was subjected to forceful sexual intercourse. However, forensic evidence is missing and only in Article ‘H’ & ‘I’ i.e. slide & shirt of the victim, blood & human blood has been found, but the trial Court did not record specific finding that the appellant has committed sexual intercourse with the victim and in para 66 of the impugned judgment, the trial Court has culled out the following incriminating circumstances to hold the appellant guilty for the offences under Sections 302 & 376(A) of I.P.C. and Section 5(l)(m)(r) & 6 of the POCSO Act. 10. In order to examine the correctness of the said findings, it would be appropriate to disintegrate the aforesaid incriminating circumstances as culled out by the trial Court in para 66 of its judgment. (i) That, the appellant and deceased were lastly seen by Hulasiya Dewangan (PW-2) and, as such, the appellant has committed the aforesaid offences. (ii) That, the appellant has purchased chocolate for the victim/deceased and after the incident, he has changed the clothes and again came to the place of incident. (iii) That, from the place of incident, the wrapper of the chocolate, chappal of deceased and her clothes were found indicating the rape and murder of the victim. (ii) That, the appellant has purchased chocolate for the victim/deceased and after the incident, he has changed the clothes and again came to the place of incident. (iii) That, from the place of incident, the wrapper of the chocolate, chappal of deceased and her clothes were found indicating the rape and murder of the victim. (iv) That, the appellant has admitted in the memorandum statement (Ex.P-17) about the commission of offence, which complete the chain of incriminating circumstances. 11. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra , [ (1984) 4 SCC 116 ] , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: - “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra , (1973) 2 SCC 793 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 12. In view of the aforesaid principles of law laid down by the Supreme Court, we will now examine the correctness of the aforesaid findings recorded by the trial Court, one by one. (i) The first incriminating circumstance is the theory of last seen together. It is the case of the prosecution that the appellant has purchased chocolate from the shop of Hulasiya Dewangan (PW-2) and she had seen the appellant and deceased lastly together on the date of offence. However, a careful perusal of the statement of Hulasiya Dewangan (PW-2) would show that she has only stated that one person had purchased chocolate from her shop on the date on which one minor girl was subjected to rape and murder and thereafter, she came to know that it is the appellant who has committed rape and murder of that minor girl. As such, she has not at all supported the case of the prosecution with regard to the theory of last seen together and therefore, the trial Court ought not to have accepted the statement of the Hulasiya Dewangan (PW-2) as a witness of last seen of the appellant with deceased together, as neither the date & time of purchase of chocolate has been mentioned nor the victim and appellant have been identified by her. In that view of the matter, the reliance upon PW-2 as a witness of last seen together is totally unacceptable, therefore, we reject the theory of last seen together of the appellant and deceased by Hulasiya Dewangan (PW-2) as propounded by prosecution. In that view of the matter, the reliance upon PW-2 as a witness of last seen together is totally unacceptable, therefore, we reject the theory of last seen together of the appellant and deceased by Hulasiya Dewangan (PW-2) as propounded by prosecution. (ii) The second incriminating circumstance is that the appellant has purchased chocolate for the victim/deceased, but the purchase of chocolate by the appellant from the shop of Hulasiya Dewangan (PW-2) is also not established at all in view of the discussion made hereinabove. (iii) The next incriminating circumstance is that from the spot, the chocolate wrapper, footwear of the deceased and her clothes were seized, which are not to be of much relevance, as it were seized from the spot and it were not seized pursuant to memorandum statement of the appellant. (See: Boby v. State of Kerala , 2023 LiveLaw (SC) 50 ). (iv) The last incriminating circumstance is the confessional statement of the appellant admitting his guilt in the memorandum statement (Ex.P-17). The trial Court has relied upon the confessional statement under Section 27 of the Indian Evidence Act and proceeded to convict the appellant. In this regard, in the matter of State of U.P. v. Deoman Upadhyaya , AIR 1960 SC 1125 , the Constitution Bench of the Supreme Court has held that confessional part of the statement is inadmissible under Section 27 of the Evidence Act and only part which leads to discovery of facts is admissible in evidence. The aforesaid decision of Deoman Upadhyaya (supra) has been followed with approval by the Supreme Court in the matter of Babu Sahebagouda Rudragoudar & Others v. State of Karnataka , (2024) 8 SCC 149 and observed in paragraph 60 & 61 held as under : “60. We would now discuss about the requirement under law so as to prove a disclosure statement recorded under Section 27 of the Evidence Act and the discoveries made in furtherance thereof. 61. The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the investigating officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible in evidence as laid down by this Court in State of U.P. v. Deoman Upadhyaya (supra).” 13. The confessional part of such statement is inadmissible in evidence as laid down by this Court in State of U.P. v. Deoman Upadhyaya (supra).” 13. Coming to the facts of this case in light of the decisions rendered by the Supreme Court in Deoman Upadhyaya (supra) followed in Babu Sahebagouda Rudragoudar (supra), it is quite vivid that the part of the appellant’s confessional statement that he has committed rape of the victim and thereafter murdered her is inadmissible in evidence, as only the information given by the accused leads to recovery of incriminating material from a place solely and exclusively within the knowledge of the maker thereof would be admissible in evidence. In that view of the matter, the reliance placed by the trial Court in confessional part of the statement of accused, admitting his guilt, is inadmissible in evidence and there is no other evidence on record to hold the appellant is guilty for offence under Sections 302 & 376(A) of I.P.C. and Section 5(l)(m)(r) & 6 of the POCSO Act. As such, the appellant is entitled for acquittal on the basis of benefit of doubt. 14. In view of the above, the impugned judgment of conviction and order of sentence dated 09.05.2017 is set aside. The appellant stands acquitted giving him benefit of doubt of the charge framed against him for the offence under Sections 302 & 376(A) of I.P.C. and Section 5(l)(m)(r) & 6 of the POCSO Act. Accordingly, the appellant is directed to be released forthwith from jail, unless he is required in any other offence. 15. In the result, the appeal is allowed. 16. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.