JUDGMENT : BIBEK CHAUDHURI, J. 1. The instant criminal appeal is directed against a judgement of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track, 2 nd Court at Patna on 16 th of February, 2019, whereby and whereunder, the learned Trial Judge held the appellant guilty for committing offence under Sections 376/302 of the Indian Penal Code and convicted and sentenced him to suffer rigorous imprisonment for life for the offence punishable under Section 376 of the IPC and rigorous imprisonment for life till the end of his natural life for the offence punishable under Section 302 of the IPC. 2. On the basis of an oral statement made by one Jawahar Kumar Ray of village Mohaddipur, which was reduced to writing by Sub-Inspector, K. N. Paswan on 17 th of December, 2007, S.K. Puri P.S Case No. 228 of 2007, dated 17 th of December, 2007, for the offence punishable under Sections 376 and 302 of the Indian Penal Code was registered. 3. It is alleged by the informant that at the relevant point when the alleged incident took place, he used to reside at New Punaichak, Jhuggi-Jhopadpatti by the side of the railway line within Police Station-S. K. Puri. On 16 th of December, 2007 in the evening, the wife of the informant, namely, Kachan Devi sent her daughter, since deceased, aged about 8 years, to collect waste papers. At that place, the appellant was also present. His child also went to collect papers. When the informant returned at about 08:30 P.M. on 16 th of December, 2006, after pulling rickshaw, he did not find his minor daughter at home. He and his wife conducted a search for their daughter at nearby area and asked the local people about her whereabouts but the local people failed to give any reply to them. Then they suspected that his daughter might be in the room of the appellant. He went to the house of the appellant to find out his daughter but found that the house and the entrance gate of the appellant were locked and it was dark inside. On the following morning at about 07:00. A.M., the informant again conducted search of his daughter. During search, he peeped through the closed door of the room of the appellant and found that her daughter lying dead inside the room of the appellant. On the following morning at about 07:00. A.M., the informant again conducted search of his daughter. During search, he peeped through the closed door of the room of the appellant and found that her daughter lying dead inside the room of the appellant. With the help of local people, the lock of the entrance gate and the door of the room were broken. The informant and others saw the dead body of her daughter having injuries and scratch marks all over her body. Her undergarment and pant were found open and blood was found near her buttock. He suspected that the appellant who was also residing at the relevant point of time at New Punaichak, Jhuggi-Jhopadpatti committed rape upon his daughter and thereafter murdered her by throttling. 4. The S.H.O., S.K. Puri, Police Station instructed S.I. K. N. Paswan to take up the investigation of the case. During investigation, he recovered the dead body of the daughter of the informant; held inquest over the dead body of the deceased at the place of occurrence; seized blood-stained earth from the place of occurrence; and one photocopy of voter identity card from the room of the appellant. He also examined available witnesses and recorded their statement under Section 161 of the Cr.P.C. Thereafter, he sent the dead body of the deceased for post-mortem examination to P.M.C.H. He also obtained forensic report of the seized blood-stained earth and wearing apparels of the victim. 5. On conclusion of investigation, he submitted a charge-sheet against the appellant under Sections 376 and 302 of the IPC before the learned C.J.M., Patna on 29 th of October, 2011. 6. The learned Sessions Judge, Patna received the case record after commitment on 4 th of January, 2012 and transferred the case to the 10 th Court of the Additional Sessions Judge at Patna. 7. The learned Additional Sessions, 10 th Court at Patna, received the case records and framed charge against the accused/appellant on 9 th of May, 2012, punishable under Section 376 of the IPC. When the charge, so framed, was written over and explained to the appellant, he pleaded not guilty. Accordingly trial of the case commenced. 8. During trial, one Shobha Devi was examined as P.W. 1 on 25 th of February, 2013. One Dharmendra Ray was examined by the Trial Court on 10 th of April, 2013. 9. When the charge, so framed, was written over and explained to the appellant, he pleaded not guilty. Accordingly trial of the case commenced. 8. During trial, one Shobha Devi was examined as P.W. 1 on 25 th of February, 2013. One Dharmendra Ray was examined by the Trial Court on 10 th of April, 2013. 9. Subsequently, when the trial was in progress before the 10 th of Court of the learned Additional Sessions, Patna, the learned Sessions Judge, Patna issued memo no. 3052-3054 dated 4 th of March, 2017 and the Sessions Trial No. 20 of 2012 was transferred to the Fast Track, 2 nd Court of the learned Additional Sessions Judge. The transferee Court received the record on 10 th of March, 2017 and continued with the trial which was commenced before the 10 th Court of the learned Additional Sessions Judge at Patna. 10. At the outset, we like to record that after commencement of trial, no sessions trial case can be transferred from one Trial Court to another by issuing administrative order by the learned Principle Sessions Judge, Patna. However, the said procedural wrong was committed by the learned Principle Sessions Judge by issuing memo no. 3052-3054 dated 4 th of March, 2017, directing the learned Additional Sessions Judge, 10 th Court at Patna to transfer the case to the 2 nd Fast Track Court at Patna. 11. However, when the trial of the case was concluded by the learned 2 nd Fast Track Court at Patna by passing judgement of conviction and sentence, we treat the above-mentioned anomaly as procedural irregularity and proceed with the hearing of the instant appeal. 12. During trial, in order to bring home the charge against the accused, the prosecution examined as many as five witnesses. Some documents were marked as Exhibit-1 to Exhibit-9/1. We propose to state the nature of exhibited documents subsequently in the body of the instant judgement. Amongst the witnesses, P.W. 1, Shobha Devi is the paternal aunt of the deceased. P.W. 2, Dharmendra Ray used to reside in the adjacent house of father of the deceased. P.W. 3, K. N. Paswan is the first Investigating Officer. P.W. 4, Dr. Arun Kumar Singh was posted as a tutor in the department of Forensic Medicine in Patna Medical College and Hospital. He conducted post-mortem over the dead-body of the deceased girl and prepared the post- mortem report. P.W. 3, K. N. Paswan is the first Investigating Officer. P.W. 4, Dr. Arun Kumar Singh was posted as a tutor in the department of Forensic Medicine in Patna Medical College and Hospital. He conducted post-mortem over the dead-body of the deceased girl and prepared the post- mortem report. P.W. 5 is a Serological Expert in the Forensic Science Laboratory at Patna. No other witness was examined during the trial of the case. 13. Thus, it appears that during trial, prosecution failed to produce the informant who is the father of the deceased and his wife. In other words, parents of the deceased were not examined. The learned Trial Court passed the impugned judgement convicting the accused for the offence punishable under Section 376 and Section 302 of the Indian Penal Code mainly on the basis of the evidence of P.W. 1, P.W. 2 coupled with the report submitted by the Autopsy Surgeon. 14. During trial, the Investigating Officer proved the fard beyan recorded on the basis of the statement of the informant, Jawahar Kumar Ray by P.W. 3. One Anil Kumar Ram put his signature on the said fard beyan as a witness of left thumb impression affixed by the informant on the said fard beyan. The said Anil Kumar Ram was also not examined. However, the fard beyan was marked as Exhibit-3 and the endorsement of P.W. 3 on the fard beyan was marked as Exhibit- 3/1. The formal F.I.R. recorded on the basis of the said fard beyan was marked as Exhibit-4. 15. As the informant was not examined during trial, the prosecution failed to prove the contents of the F.I.R. Similarly, the defence did not get any opportunity to ascertain as to whether there was any contradiction in the F.I.R. 16. From the evidence of P.W. 1, it is ascertained that on the date of incident, in the evening, mother of the deceased asked her to collect some waste papers to burn Chulah (home made stove) for cooking. The little girl left the house to collect some waster papers. Thereafter, she went missing. P.W. 1, his brother (informant) and sister-in-law (mother of the deceased) conducted search for the girl and during search, they went to the house of the appellant. They found the house of the appellant locked and dark. The little girl left the house to collect some waster papers. Thereafter, she went missing. P.W. 1, his brother (informant) and sister-in-law (mother of the deceased) conducted search for the girl and during search, they went to the house of the appellant. They found the house of the appellant locked and dark. According to P.W. 1, she asked the father of the appellant about his son and he told her that he was sleeping in his room since the evening on the date of occurrence. On the following morning, P.W. 1 again went to the house of the appellant and found his house locked. She peeped through the door inside the hut (jhopdi) and found the little girl of the informant lying dead inside the hut. Then, the brother of P.W. 1, his wife and P.W. 1 herself informed the incident to the police. The police came to the place of occurrence and broke out the door and entered into the house. There was mark of strangulation around the neck of the deceased. Her body had bite marks on her face and chest. Blood was found lying on the floor of the room. Police sent the dead body of the deceased to Patna Medical College and Hospital for post-mortem examination. Police seized blood stained soil from the place of occurrence. At that time, the accused was not present in his house. 17. The evidence of P.W. 2 is more less the same as that of P.W. 1. P.W. 2 knew the deceased. It is ascertained from the evidence of P.W. 2, Dharmendra Ray, who is a neighbour of the informant that the house of the appellant is just adjacent to the house of the deceased. In the year 2007, when the incident took place, the deceased was aged about 8 years. The witness personally saw the dead body of the deceased at the residence of the appellant. He noticed that the undergarment of the deceased were stained with blood. Her neck appeared to have been forcibly compressed and there were bite marks on her chick. He suspected that the deceased was murdered by the appellant after he committed rape upon her. 18. He noticed that the undergarment of the deceased were stained with blood. Her neck appeared to have been forcibly compressed and there were bite marks on her chick. He suspected that the deceased was murdered by the appellant after he committed rape upon her. 18. On perusal of the evidence of P.W. 1 and P.W. 2, this Court does not find that either of the above-named two witnesses were present in the house of the informant on 16th of December, 2007, when the deceased was asked by her mother to bring some waste papers to burn Chulah. They also did not see the appellant in association with the deceased after she departed from her home to bring waste papers in the evening of 16th of December, 2007. The prosecution failed to produce any witness to prove that the appellant and the deceased were last seen together before she got missing till recovery of the dead body of the deceased. 19. It is true that from the evidence of P.W. 1 and P.W. 2, this Court finds that the dead body of the deceased was found in the room of the appellant but from the evidence of P.W. 1 as well as statement made in the fard beyan, it is ascertained that the room of the deceased was under lock and key from the late evening of 16th of December, 2007 and also on 17th of December, 2007, till it was broken in the morning of 17th of December, 2007. At the time of recovery of the dead body, the appellant was not found. In the night of 16th of December, 2007, P.W. 1 saw the house of the appellant under lock and key and there was no lit inside the room. 20. The Trial Court convicted the appellant on the sole ground of recovery of dead body from the house of the appellant on the basis of presumption that since the dead body of the victim girl was found in the room of the appellant, he had special knowledge about what had happened to the deceased after she left her home in the evening of 16th of December, 2007. It was held by the Trial Court that the incident that took place with the victim after she departed her home to bring waste papers was within the special knowledge of the appellant and he failed to discharge his burden as to how the deceased was ravished and subsequently murdered. 21. The burden of proving fact, especially within the knowledge of the accused can be found within Section 106 of the Indian Evidence Act, 1872, corresponding to Section 109 of the Bharatiya Sakshya Adhiniyam, 2023. 22. Section 106 of the Indian Evidence Act discusses the burden of proof on a person who has knowledge of a specific fact, such as being the last person known to have been with the victim. 23. It is needless to say that in order to convict someone on the basis of circumstantial evidence invoking the last seen theory, the prosecution is under primary obligation to prove the circumstance beyond any shadow of doubt, the chain of which must lead to the inescapable conclusion of that person committing the crime. 24. In criminal cases, where direct evidences are hard to found, the entire case depends on the circumstantial evidence. The circumstantial evidences imply when all the evidences are clubbed together to form a complete chain of events in such a way that the accused may be convicted. The chain of events, so formed, must be without any reasonable doubt. Each circumstances and the evidences from which the chain is formed should be individually proved as direct evidences. The circumstantial evidence is always direct and primary which means the fact from which the existence of the fact in issue to be inferred must be proved by direct evidence. In case of circumstantial evidence, all the circumstances should be vested by absolute evidences and should form a complete chain to bring home the guilt of the accused without giving any alternative chance to any other hypothesis. 25. In the instant case, there is absolutely no direct evidence against the appellant in support of the charge. Thus, the Trial Court bases its judgement of conviction on the basis of circumstantial evidence. 26. The only circumstance appearing against the appellant is that the dead body of the victim was found in his room in the morning of 17th of December, 2007. The victim was missing from the evening of 16th of December, 2007. Thus, the Trial Court bases its judgement of conviction on the basis of circumstantial evidence. 26. The only circumstance appearing against the appellant is that the dead body of the victim was found in his room in the morning of 17th of December, 2007. The victim was missing from the evening of 16th of December, 2007. Nobody saw the appellant enticing the victim to his house after her departure from her own house to bring some waste papers. Secondly, when the parents of the victim and P.W. 1 were searching for her, they found the room of the appellant under lock and key and dark. Presumably, there was nobody in the house of the appellant, when the parents and P.W. 1 went to the house of the appellant. There is absolutely no evidence collected by the Investigating Officer to prove that the victim was sexually assaulted by the appellant. The serological report submitted by P.W. 5 in respect of the blood stained earth, underwear cutting with stain of blood, payajama cutting with stain of blood and payajama cutting with stain of semen suggested that the forensic examination failed to identify the blood group on the afore-mentioned seized articles. Therefore, it was also not proved that victim was raped before her murder by the appellant. The prosecution hopelessly failed to establish the charge against the appellant and in spite of absolute lack of evidence, the Trial Court passed the impugned judgement of conviction and sentence. As a result of the impugned judgement delivered by the Trial Court, the appellant remains in custody for about 15 years. 27. It is unfortunate to note that the incident took place on 16 th of December, 2007. The appellant was arrested and produced before the learned Chief Judicial Magistrate on the strength of warrant of arrest on 7 th of August, 2011. Charge- sheet was filed on 29 th of October, 2011. Charge was framed against the accused on 9 th of May, 2012. Subsequently, when the trial was in progress before the 10 th of Court of the learned Additional Sessions, Patna, the learned Sessions Judge, Patna issued memo no. 3052-3054 dated 4 th of March, 2017 and the Sessions Trial No. 20 of 2012 was transferred to the Fast Track, 2 nd Court of the learned Additional Sessions Judge. Subsequently, when the trial was in progress before the 10 th of Court of the learned Additional Sessions, Patna, the learned Sessions Judge, Patna issued memo no. 3052-3054 dated 4 th of March, 2017 and the Sessions Trial No. 20 of 2012 was transferred to the Fast Track, 2 nd Court of the learned Additional Sessions Judge. The transferee Court received the record on 10 th of March, 2017 and continued with the trial which was commenced before the 10 th Court of the learned Additional Sessions Judge at Patna. From the date of arrest/production before the Court till date, he was in custody. The Trial Court delivered the impugned judgement on 16 th of February, 2019. The instant appeal was filed before this Court on 22 nd May, 2019. Unfortunately enough, the appeal was admitted for hearing by a Coordinate Bench of this Court after a lapse of six years on 28 th of March, 2025. Notice upon the informant/Respondent No. 2 was served as per the Process Servers Report on 30 th of June, 2025. Thereafter, date was fixed for production of lower court records on 1 st of August, 2025. 28. Subsequently, however, a Coordinate Bench passed an order for substitute service of notice upon Respondent/informant by paper publication. The appellant took step for publication of notice by paper publication, which was accepted by a Coordinate Bench on 11 th of December, 2025 and the Coordinate Bench vide order, dated 19 th of December, 2025 refused the prayer for suspension of sentence and bail of the appellant in spite of the fact that the appellant is in incarceration for about 15 years. 29. After hearing the appeal, we are unfortunately note that the appellant was convicted and sentenced to suffer imprisonment for life on consideration of inadmissible evidence. The prosecution hopelessly failed to bring home the circumstances which were necessarily established beyond any shadow of doubt in order to come to a finding in support of hypothesis of guilt against the appellant. 30. This is a case where the appellant remained in custody for about 15 years though prosecution failed to produce any kind of evidence whatsoever against him during trial. 30. This is a case where the appellant remained in custody for about 15 years though prosecution failed to produce any kind of evidence whatsoever against him during trial. However, we do not find any alternative but to lament for the unfortunate state of justice delivery system in our country and pray that timely justice shall be delivered both to the prosecution and defence in future. 31. In view of the above discussions, the instant Criminal Appeal is allowed on contest. 32. However, there shall be no order as to costs. 33. The judgement of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track, 2 nd Court at Patna on 16 th of February, 2019, whereby and whereunder, the learned Trial Judge held the appellant guilty for committing offence under Sections 376/302 of the Indian Penal Code and convicted and sentenced him to suffer rigorous imprisonment for life for the offence punishable under Section 376 of the IPC and rigorous imprisonment for life till the end of his natural life for the offence punishable under Section 302 of the IPC, is set aside. 34. The appellant be released at once.