JUDGMENT 1. - Prabhulal, accused-appellant was tried by the Sessions Judge, Bundi, for the offences under Sections 302, 306 & 363 IPC, for kidnapping, raping and murdering Mst. Geeta, daughter of Madholal. After the trial, he was found guilty of the charges levelled against him, and was sentenced to imprisonment for life and to pay a fine of Rs. 100/-for the offence under Section 302, IPC. For the offence under Section 376, IPC, he was sentenced to rigorous imprisonment for seven years and to pay a fine of Rs. 250/-. And, for the offence under Section 363, IPC, he was sentenced to rigorous imprisonment for four years and to pay a fine of Rs. 250/-. In default of payment of fine on each count, he was sentenced to further undergo rigorous imprisonment for six months. All the sentences awarded to the accused-appellant, were ordered to run concurrently. Against the conviction and sentence, Prabhulal appellant has preferred the present jail appeal through the jail authorities. 2. According to the prosecution, Ramkalyan, Sarpanch, son of Ambalal,of Gram Panchayat Bajar, submitted a written report, Ex. P, 1, on 1st August, 1978, at about 8 Am, at Police Station Keshoraopatan, District Bundi, to the effect that on the night of 31st July, 1978, some religious procession was going on with ragard to Tejaji maharaj. In the night, at about 12 O' clock, some noise of "thief-thief" was heard coming from the side of flour-mill. Phoolchand, the owner of the flour-mill was standing on the road and was crying. Hearing his voice, Ramkalyan along with others came to him and asked as to what had happened. Thereupon, Phoolchand told them that one person had come to his cot and slept with him, and that man had put one `Chaddar' on him. At this, he woke up. Then, that man told him that he would be killed by knife, if he would cry. That man also told him to permit him to sleep with him. At this, Phoolchand asked him as to who was he. That man then asked him to put off his clothes and sleep with him otherwise be would kill him. Phoolchand then got up from the cot and ran away crying. Hearing his cry, that man ran away towards the canal. The villagers then pursued that man; and he was caught near the canal and was brought to village. That man then asked him to put off his clothes and sleep with him otherwise be would kill him. Phoolchand then got up from the cot and ran away crying. Hearing his cry, that man ran away towards the canal. The villagers then pursued that man; and he was caught near the canal and was brought to village. At that very moment, there was a noise in the village that Mst. Geeta daughter of Madholal Kumhar, had been kidnapped. The girl was sleeping on her cot and somebody had taken away her in the night. After sometime, Gopal grandfather of Mst. Geeta while searching her, came to place where the villagers were sitting with that man. That man was having a `Pachhwar' around his body. Gopal identified that `Pachchwar' being the same which was on Mst. Geeta while she was sleeping. He could identify the `Pachhwar' on account of this fact that it was catena way on one side by she-buffalo. At this, the villagers suspected that Mst. Geeta might have been kidnapped by that man. `Prabhulal' was tattooed on one hand of that man. The villagers interrogated him the whole night about Mst. Geeta. Sometime Prabhulal told the villagers that Mst. Geeta was in the field of sugar-cane ; and sometime he told that she was in the `Khal'; and thus, he did not give any definite and correct information about Mst Geeta till next morning. As the `Pachhwara' which was on Mst. Geeta at the time of her sleeping, was found with that man, Prabhulal, it was suspected that he might have kidnapped Mst. Geeta. In the morning, Ramkalyan, along with Badrilal and Jagannath Meena went to Police Station - Keshoraopatan and submitted the written-report Ex. P. 1. On the basis of this report, a regular FIR Ex. P. 2 was prepared. A cased under Section 363 was then registered and investigation started. 3. It was further alleged that after submitting report Ex. P. 1, in the police station, the SHO came along with Ramkalyan to Village Bajar. There they found that Mst. Geeta was lying in front of the `Panchayat Bhawan', and she was dead. The ASI, at the instance of Mohanlal and Rajaram, prepared site-plan Ex. P. 7 of the site. Mst. Geeta was about 31/2 years of age. P. 1, in the police station, the SHO came along with Ramkalyan to Village Bajar. There they found that Mst. Geeta was lying in front of the `Panchayat Bhawan', and she was dead. The ASI, at the instance of Mohanlal and Rajaram, prepared site-plan Ex. P. 7 of the site. Mst. Geeta was about 31/2 years of age. Her deadbody was inspected by the police and they found that blood was coming out from her private parts. Accused Prabhulal was detained there by the villagers. Bushshirt article-2 Pajama article-3 of Prabhulal accused and Pachwara article-1 were taken into possession by the police vide memo Ex. P. 3 to Ex. P. 5. The frock of Mst. Geeta article-4 was also taken into possession. Accused Prabhulal was arrested vide arrest-memo Ex. P. 8. A Panchnama of the deadbody of Mst. Geeta was prepared which is Ex. P. 12. The frock of Mst. Geeta was seized and sealed vide memo Ex. P. 6. The spot of the incident was also inspected. Its site - paln is Ex. P. 10. The postmortem examination of the deadbody was conducted and then the deadbody was handed over to the relatives of the deceased vide memo Ex. P. 11. The place where Phoolchand was sleeping, was also inspected and its site-plan Ex P. 13 was prepared. The place from where the deadbody of Mst. Geeta was recovered, was also inspected, and its site-plan Ex. P. 14 was prepared. The recovered articles then were sent to Forensic Science Laboratory for examination, and their reports are Ex. P. 15 & Ex. P. 16. Accused Prabhulal was medically examined by the doctor, Dr. Nagesh Joshi, and his report is Ex. P. 17. Dr. Joshi is the doctor who conducted post-mortem examination on the deadbody of Mst. Geeta, and his report is Ex. P. 19. The accused was again examined by the same doctor for the purpose of his committing rape, and the report of the said doctor in this regard is Ex. P. 18. After usual investigation, the police submitted a challan in the court of Chief Judicial Magistrate, Bundi, who committed the accused to the court of Sessions Judge, Bundi, for trial. Charges under Section 302, 376 & 363 IPC were framed against the accused, who pleaded not guilty and claimed trial. To substantiate its case, the prosecution has examined 19 witnesses in all. Charges under Section 302, 376 & 363 IPC were framed against the accused, who pleaded not guilty and claimed trial. To substantiate its case, the prosecution has examined 19 witnesses in all. The accused was also examined under Section 313, Cr. P. C. He denied the allegations made against him by the prosecution witnesses. His contention was that he used to sell vegetables at Barunda, after purchasing them from Bundi and Kota, and that to purchase vegetables, he had come to Bundi by Bajar. Rajendra Singh met him in the way. They came to Bundi by 5 PM, and by last bus, he along with Rajendra Singh left Bundi, and then left Bajar at about 10-10-30 PM From Bajar along with Rajendra Singh, he started on fox. After going about 221/2 kms. from Bajar, he felt pain in stomach and desired to go for nature-call. So, he stopped in the way and Rajendra Singh went away. He has further stated that while he was attending the nature-call, 7-8 persons came there, and on account of enmity regarding some land which was allotted to him, they beat him, and that, they even did not permit him to wear his clothes, and brought him to village in naked position. He then, was handed over to the police in the next morning at about 10 AM. 4. The learned Sessions Judge, Buadi, after considering the entire prosecution evidence and hearing both the learned counsel for the parties, held that the prosecution has proved its case against the accused, and he, therefore, sentenced the accused appellant as mentioned above. There are three aspects is this case. The first is, as to whether Mst. Geeta was kidnapped by the accused on the night of 31st July, 1978. The second aspect is as to whether Mst. Geeta was raped by the accused-appellant. And, the third point is as to whether Mst. Geeta was murdered by the accused. In this respect, there is no eye-witness in this case, and the entire case depends on the circumstantial evidence is that of`Pachawara' (Chaddar) which was found wrapped on the body of the accused, when he was caught by the villagers. The said Pachawara was identified by Gopal, grand-father of Mst. Geeta; and Madholal father of Mst. Geeta. In this respect, there is no eye-witness in this case, and the entire case depends on the circumstantial evidence is that of`Pachawara' (Chaddar) which was found wrapped on the body of the accused, when he was caught by the villagers. The said Pachawara was identified by Gopal, grand-father of Mst. Geeta; and Madholal father of Mst. Geeta. The entire case depends on the identification of the said `Pachawara' In this respect, we have perused and read the entire prosecution evidence, and given our thoughtful consideration to the arguments advanced by the learned counsel for the parties. 5. It has not been disputed before us that Mst. Geeta's death was homicidal in nature. The learned counsel for the accused also has not controverted this aspect that Mst. Geeta was murdered by somebody. In this respect, we have also perused the statement of Dr. Nagesh Joshi, P. W. 18, who conducted the post-mortem examination on the deadbody of Mst. Geeta. The post-mortem report is Ex. P. 19. The said doctor after conducting the post-mortem examination, opined that the death of Mst. Geeta was caused by asphyxia due to drowning. He has also opined that the death was not due to rape. Thus, from the doctor's opinion it appears that Mst. Geeta died on account of drowning. So, her death was not a natural one, but was homicidal in nature. So, there is no dispute in this raged. The envire prosecution evidence can now be divided in two parts. One story is about the fact which bad happened at the flour-mill of Phoolchand. and the second aspect of this case is kidnapping of Mst. Geeta from the house and later on finding her deadbody in the river. Ramkalyan P. W. 1, Birdhilal P. W. 3, Mohanlal P. W. 5, Jagannath P. W. 8 and Phoolchand P. W. 7 are the eye-witnesses regarding the first point, concerning the flour-mill. 6. Phoolchand PW 7 has stated that in the night at about 12 O'clock, he was sleeping outside his flour-mill, accused Prabhulal came to him and put a Chaddar on his body. At this, he woke up and asked Prabhulal as to who was he. The accused thereupon asked to permit him to sleep with him. When he refused, the accused asked him to put off his clothes. At this, he ran away crying. At this, he woke up and asked Prabhulal as to who was he. The accused thereupon asked to permit him to sleep with him. When he refused, the accused asked him to put off his clothes. At this, he ran away crying. Hearing his cry, Heera, Gopal, Jagannath, Birdha and Mohan came there, and he m then narrated the story to them. Similar is the statement given by the other witnesses, namely Ramkalyan, Birdha, Mohanlal and Jagannath. It is in the evidence that when Phoolchand gave this information to the villagers, they ran towards Prabhulal and caught him. They then brought him to the hotel of Modu. The second story is connected with the first one. Gopal, grandfather of Mst. Geeta came there searching his grand-daughter, and when he saw accused wearing the `Pachhwara', he identified it and told the villagers that the said `Pachhwara' was of his which he had put on Mst. Geeta in the night, while she was sleeping. When Mst. Geeta was not found at his house, that men must have kidnapped her. In this respect, we have perused the statements of the prosecution witnesses, and examined their depositions very minutely. 7. It is not disputed by the accused that he was detained by the villagers in the night, and was handed over to the police the next morning at about 10 AM, His contention was that while he was attending the nature-call, he was beaten by the villagers and then brought to the village. On the other hand, the prosecution version is that the accused wanted to sleep with Phoolchand and Phoolchand did not permit him, and when he cried, the accused tried to run away, but was caught by the villagers, and brought to the hotel of Modu. There, Gopal came searching his grand daughter, and identified the Pachhewara which was worn by the accused. Which story is correct and believable, is to be judged. Ramkalyan PW 1 has stand that when Gopal identified the Pachhewara, theaccused was interrogated about Mst. Geeta, He (the accused) replied that he would not tell about Mst. Geeta on that day, but next day, he would say about it. Sometime, he told that the girl was in the field of Sugar-cane, and sometime, he told that he had sent the girl in a truck, and sometime, he told that she was kept in the 'Khali'. Geeta, He (the accused) replied that he would not tell about Mst. Geeta on that day, but next day, he would say about it. Sometime, he told that the girl was in the field of Sugar-cane, and sometime, he told that he had sent the girl in a truck, and sometime, he told that she was kept in the 'Khali'. In his cross-examination, he has stated that the whole night, they were interrogating the accused about Mst. Geeta. It was also stated that they did not take the accused to the place where he stated that Mst. Geeta was lying, i. e. in the sugar cane field or in the Khali. It was natural to have taken the accused to that place and recovered Mst. Geeta. But, inspite of this information, the villagers did not go to the spot as indicated by the I accused. Chhitarlal PW 2 has repeated the version given by the accused PW 1. According to him, the accused was brought to the hotel of Modu Kutnhar and kept there till the next morning. Madholal and Gopal came searching the girl. Seeing the`Pachhwara' on the body of the accused, Gopal told that Mst. Geeta was covering by the said `Pachhwara' at the time of her sleep. Birdhilal PW 3 was one I of them, who had been to police station for submitting the report Ex. P, I. He has not slated even a single word about interrogating the accused about Mst. Geeta. He is silent on this point. He was present there with the accused the whole night, but, he did not say that the accused was interrogated by Gopal about Mst. Geeta and that he gave different versions. Mohanlal PW 5 has stated that the same words as has been narrated by PW 1 Ramkalyan. He has also stated that the accused I told them about Mst. Geeta that she was in the Baadh, and sometime he told that she was in the Khali or in the field, but, he did not give any definite answer. He I has also not stated that the accused was taken to the place for which the accused I said about Mst. Geeta. Jagannath PW 8 has also stated that first of all Prab iulal refused to say anything about Mst. He I has also not stated that the accused was taken to the place for which the accused I said about Mst. Geeta. Jagannath PW 8 has also stated that first of all Prab iulal refused to say anything about Mst. Geeta, but later on, he said that he had sent her in a truck, and that, in the morning, he would bring her, Jagannath has not stated that the accused gave any information regarding Mst. Geeia that she was in the khali or in the field, or in the Baadh. He has also not stated that the accused was taken to the place where he had kept Mst. Geeta. Thus, the statements of the prosecution witnesses are similar and identical. Their statements seem to be most unnatural. It cannot be believed that on receiving information about Mst. Geeta, the villagers would not take the accused to the place as told by him. It is also not believable that I the villagers when suspected the accused would not search Mst. Geeta in the night and would go on interrogating the accused the whole night till the police arrived there in the morning. Another aspect connecting this fact is that in the morning Nuruddin PW 12 came to village Bajar and at the flour-mill he told that one child E was lying in the river of `Thikria-Kala'. On this information, Madho and Gopal went to the river and then they brought the deadbody of Mst. Geeta to village. Thus, the deadbody was brought in the next morning. It was then thought that Mst. Geeta had been murdered. At that time, Prabhulal was in custody of the villagers. Prior to this, it was not known to this villagers whether Mst. Geeta is dead or alive. As we have stated above, the accused was not taken to the place when he gave information about Mst. Geeta, by the villagers. But, this fact is con-I tradicted by Madholal, who is the father of Mst. Geeta. He has stated that when his I father Gopal interrogated the accused about Mst. Geeta, he told that he sent her to Patan in a truck. According to him, the accused then stated that he had kept Mst. Geeta in the Baadh. They then went to see Mst. Gaeta, bat, she was not found there, and the whole night passed in searching her. Geeta, he told that he sent her to Patan in a truck. According to him, the accused then stated that he had kept Mst. Geeta in the Baadh. They then went to see Mst. Gaeta, bat, she was not found there, and the whole night passed in searching her. Gopal PW 10 has stated that the accused told that the girl was in the Baadh and that, thereupon, they started for Baadh, but, they returned from the midway as the accused then told them that he would tell about the girl in the morning. He has also stated that he had sent the girl in a truck. Thus, on this aspect, the statements are contradictory, and we place no reliance on these statements. This is concocted story of the prosecution and all the prosecution witnesses have stated that the whole night, they interrogated the accused about Mst. Geeta, and every time, he gave different replies This is incorrect and unbelievable story, and no reliance can be placed on such witnesses. 8. The most important aspect is that the prosecution has failed to prove how the accused received the injuries on his body. All the prosecution witnesses have denied that they had seen any injury on the person of the accused. They have denied that the accused was beaten by them. Phoolchand PW 7 in his cross-examination has said that he had seen some injury on the knee of the accused when the accused was caught and brought by the villagers. But, the other witnesses have not said anything about it Dr. Nagesh Joshi PW 19 examined the injuries of accused Prabhulal. He found the following injuries on his person : 1. "Multiple contusion about 14 in number varying in size from 2"X 1/2" to 10" X 1/2" over back in loin region. 2. Six contusions of varying size from 2" X 1/2" to 5" X 1/2" a few were oblique and a few transverse over left forearm and arm in fronte-lateral aspect. 3. Multiple contusion about 13 in number. Size varies from 2" X 1/2" to 6" X 1/2"- over right arm and forearm in its fronto lateral aspect. 4. Contusions 5 in number varying in size from 2" X 1/2" to 4" X 1/2 over both the hips. In the opinion of the doctor, all the above injuries were simple in nature and were caused by some blunt object. 4. Contusions 5 in number varying in size from 2" X 1/2" to 4" X 1/2 over both the hips. In the opinion of the doctor, all the above injuries were simple in nature and were caused by some blunt object. The injury-report of the accused is Ex. P,1 and from this report, it is clear that the accused was mercilessly beaten by the alleged by the accused, in his statement under section 313, Cr. P. C. The fact that villagers as the accused had a number of injuries on his body/,has been denied wholly by the prosecution witnesses. It was the duty of the prosecution to have explained the injuries of the accused, when they were proved by their own witness Dr. Joshi PW 19. No explanation has been given by the accused about the injuries on the body of the accused, rather they have tried to hide it and tried to show that the accused had no injury on his person, while this fact has been proved by their own witness, Dr. Joshi PW 19. Non-explanation of the injuries on the person of the accused by the prosecution, creates a great suspicion in the correctness and truthfulness of the prosecution story. We, therefore, agree with the argument advanced by the learned counsel for the appellant in this respect, and hold that the non-explanation of the injuries on the body of the accused, by the prosecution, creates a great doubt and suspicion in the story of the prosecution. 9. The contention of the accused was that he was sitting for nature-call. At that time, he was beaten by 7-8 persons, and that, his Banyan, Shirt and Chaddhi were taken away by those persons, and in naked condition, he was brought to village where he was given a `Pachawara' for covering his body. This contention of the accused appears to be the correct one. 10. Rajendra Singh P. W. 14 has stated that in the night; he and the accused Prabhulal get down from the bus at Bajar Hotel. From Bajar, they both went towards Barunda on foot. When they had covered about 11/2 kms, the accused stopped there and told him that he was going for attending the nature-call. 10. Rajendra Singh P. W. 14 has stated that in the night; he and the accused Prabhulal get down from the bus at Bajar Hotel. From Bajar, they both went towards Barunda on foot. When they had covered about 11/2 kms, the accused stopped there and told him that he was going for attending the nature-call. According to this witness, it was about 9-9 30 p m. In bis cross-examination, he has admitted that at that time, the accused was wearing a bush shirt and a pan and they were condition torn condition. It is not disputed that when the accused was arrested, he was not wearing any pant or even a Chaddhi. His Bushshirt and Banyan were seized and sealed when he was arrested and his clothes were in torn condition. This is also fact that there was blood on his Banyan. The question is how the Bushshirt and the Banyan were torn and how there was blood on the Banyan of the accused. This fact supports the contention of the accused that he was beaten by the villagers, and blood was coming out. This also supports the contention that his pant, bushshirt and the banyan were taken away by the villagers, and he was left naked. The prosecution could not explain this fact. We are not satisfied with the learned Public Prosecutor on the point as to how the clothes of the accused were torn and how he was found naked. The answer on the contention that after leaving him naked, the villagers brought him to village and there they gave him a Pachawara, article-1 to cover his body, appears to be correct one. The persecution could not satisfy us on this point. We, therefore, find that this aspect also creates doubt in the prosecution story. 11. There is one more aspect which creates doubt in the prosecution story, which is that the prosecution witnesses are silent on this fact when the accused was caught by them, whether he was wearing a pant or having a Pachhwara on hit body. We find that intentionally, this fact has not been asked to the prosecution witnesses. Madiolal PW 6 and Gopal PW 10 have identified the Pachhwara to be theirs. Midholal in his cross-examination, has said that this Pachhwara was clean, bat as the accused hall jumped into the Nahar wrth this Pachhwara, it became dirty. We find that intentionally, this fact has not been asked to the prosecution witnesses. Madiolal PW 6 and Gopal PW 10 have identified the Pachhwara to be theirs. Midholal in his cross-examination, has said that this Pachhwara was clean, bat as the accused hall jumped into the Nahar wrth this Pachhwara, it became dirty. He has also stated that he did not see the accused jumping into the Nahar (canal), but the persons who caught the accused and brought him to village, had told him this fact. Gopal, father of Madholal and grandfather of Mst. Geeta, has not stated and such. This again shows that the prosecution witnesses are unreliable and untrustworthy witnesses. The most important aspect is identification of the `Pache-wara'. Gopal PW 10 and Madholal PW 6 have stated that this Pachcwara article-1 which was found with the accused, was theirs and they had put it on Mst. Geeta in the night at the time of her sleeping. In this respect, we have scrutinised the evidence. Madholal PW 6 has stated that he, Ramkalyan (his brother) and Mst. Geeta were sleeping near the Chabutri of Neemlal on cots, and that, in the night, at about 11-45 PM, he got up for making water. At that time, he could not see . Geeta on her cot. He has stated that Pachhwara article-1 was used for covering Mst. Geeta while she was sleeping. He, then went to his father, who was sleeping 1 in another house, which was in front of their house. Gopal PW 10 has contradicted i this statement. He has stated that near the Chabutri of Neemlal, He, Ramkalyan, Madholal and Mst. Geeta were sleeping, and that, in the night at about 12.30 O'clock, Madholal got up and awake him and asked about Mst. Geeta. He replied that he did not know about her. Then they searched Mst. Geeta, but did not find her anywhere, and ultimately reached the hotel of Modu while searching her. He has stated that he indemnified the Pachewara with the accused, and that, it was used to cover Mst. Geeta in the night. So, from the statement of Gopal, it seems that he, Madholal, Ramkalyan and Mst. Geeta were sleeping together. But, according to Madholal, Rst. Gopal was not sleeping with them, but he was at his own house. Ramkalyan who is the brother of Madholal has not been examined. Geeta in the night. So, from the statement of Gopal, it seems that he, Madholal, Ramkalyan and Mst. Geeta were sleeping together. But, according to Madholal, Rst. Gopal was not sleeping with them, but he was at his own house. Ramkalyan who is the brother of Madholal has not been examined. So, the only statement in this respect is that of Madholal PW 6 & Gopal PW 10. They contradict each other. Then, Mst. Mooli PW 13, who is wife of Madholal, has stated that she was sleeping inside the house and her husband, Mst. Geeta's uncle were sleeping outside. In her cross-examination, she has stated that nobody had put Pachewara on Mst. Geeta in the night. Her husband, father-in-law and brother-in-law did not i use any Chaddar to cover themselves in the night. According to Madholal, he, his brother Ramkalyan were also having Chaddars in the night. Ramkalyan had a Pachewara and he had a Chaddar of black colour. But, Mst. Mooli PW 13 has 1 stated that nobody was using any Chaddar in the night. No doubt, this contradiction and discrepancy is of minor character, but, there it has a great importance. The whole case depends on the identification of the Pachewara article-1. Whether Pachhwara, article-1 was of Gopal PW 10 and whether it was on the body of Mst. Geeta, is a crucial aspect. In view of the contradictory statements of the prosecution witnesses mentioned above, we feel that the story of Pachhwara is also a concocted one, and only, in order to implicate the accused in this case, it has been cooked up falsely. We do not believe that the Pachhwara article either belonged to Gopal PW 10 or Madholal PW 6. The assertion of the accused that he was beaten 1 1 by the villagers, and his pant and bushshirt were taken away, and he was left naked and then he was brought to village in that condition where he was given a Pachhwara to cover his body, seems to be a reliable and probable one. and we accordingly - 1 believe it. Thus, the whole prosecution story is falsified, and we find that in order to falsely implicate the accused in this case, a case of rape has been concocted. and we accordingly - 1 believe it. Thus, the whole prosecution story is falsified, and we find that in order to falsely implicate the accused in this case, a case of rape has been concocted. The , prosecution version is that the accused had sexual appetite ad in order to satisfy it, he committed rape on a child of 4 years, and then murdered her. Whether this is correct is to be judged by other linking evidence. The story of the prosecution further is that the accused at about 12 O'clock in the night came to Phoolchand PW 7, and asked him to permit him to sleep with him, and he also asked him to put off his clothes. This means that the accused wanted to commit sodomy with Phool-chand. In this light, we examined the entire evidence. Madholal and the other witnesses have admitted that there was a procession of Tejaji Maharaj in the night, Later on in front of the house of Madholal there was rush uptill 10-10-30 PM in the light. Then Madholal, Gopal, Ramkalyan and Mst. Geeta slept in the night ; and about 11-45 O'clock in the night, Madholal woke up and could not find Mst. Geeta on her cot. It means that Mst. Geeta might have been taken away by some other person or by the accused as alleged, before 11-45 PM in the night. According, to Rajendrasingh PW 14, the accused was with him upto 9-30 PM, when he left him for attending the naturc-call. It means that in between 9-30 PM & 11 45 PM in I the night, the accused came to the house of Madholal; took her away Mst. Geeia ; and then he took her to a distant place, where the river was flowing, and where the I deadbody was found. Then, according to the prosecution, the accused committed tape on Mst. Geeta and then throw her in the water of the river. According to the statement of the doctor, Mst. Geeta died due to asphyxia due to drowning. Rape was not the cause of the death of Mst. Geeta.It means after throwing Mst. Geeta in the river, the accused then came to flour-mill where Phoolchand was sleeping and there he put his desire to have sodomy with Phoolchand. All these acts certainly would take some time. Geeta died due to asphyxia due to drowning. Rape was not the cause of the death of Mst. Geeta.It means after throwing Mst. Geeta in the river, the accused then came to flour-mill where Phoolchand was sleeping and there he put his desire to have sodomy with Phoolchand. All these acts certainly would take some time. After leaving Rajendrasingh at about 9.30 PM, he would take some time to go to the house of Madholal. According to Madholal, he was busy with the villagers on account of Tejaji procession upto 1C-10-30 PM. So, there was no chance for the accused to take away Mst. Geeta from her cot. The accused could take her away only after 10-30 PM. Then this fact cannot be believed that the accused then took her to that lonely place, because, on account of Tejaji procession villagers were going and coming in the village. It could not be possible for the accused to take away Mst. Geeta and commit rape on her in those circumstances. If after throwing Mst. Geeta into the river, he came to Phoolchand, must have taken some time, and it must have been 11-4512-tO PM. It is alleged that Phoolchand cried and then the accused was caught by the villagers. It cannot be believed that the accused, after committing rape on the Mst. Geeta, immediately will have desire of sodomy with Phoolchand. Whatever sexual lust the accused had, he had satisfied it by committing rape on Mst Geeta. It cannot be believed that after committing rape on the girl, he would come to Phoolchand and would have desire to commit sodomy. This aspect, in our opinion, falsifies the whole prosecution story. In such a short time, it was not possible for the accused to come to the house of Madholal; kidnap Mst. Geeta; take her to a lonely place for committing rape ; throw her into the river ; and then again come to village, near the bus-stand where Phoolchand was sleeping. Thus, the story set up by the prosecution along with the other aspects that we have discussed above, seems to be a concocted one and a made out story. The story as narrated by the accused under Section 313, Cr. P.C., seems to be more probable which is supported by the statement of Rajendrasingh PW 11. Thus, the story set up by the prosecution along with the other aspects that we have discussed above, seems to be a concocted one and a made out story. The story as narrated by the accused under Section 313, Cr. P.C., seems to be more probable which is supported by the statement of Rajendrasingh PW 11. The argument advanced by the learned Public Prosecutor that the banyan of the accused was found to be stained with blood, which is proved by the chemical examiner's report, and this aspect corroborates that he committed rape and then murder of Mst. Geeta. This argument has no substance. It is in the evidence that the accused had a number of injuries on his body. It is also in the evidence that on the banyan of the accused, there was blood, on account of the injuries received by him. So, it is definite that the banyan of the accused had human blood on it. That blood was of the accused himself. The prosecution has failed to explain the injuries of the accused and has rather tried to hide this fact, which creates a great suspicion in the whole prosecution story. So, human-blood on the banyan of the accused corroborates the contention of the accused. It does not help the prosecution that the human blood on the banyan of the accused proves that he had murdered Mst. Geeta, after committing rape on her. Contrary to it, it proves that he was mercilessly beaten by the prosecution witnesses. The theory of the accused appears to be more probable and reliable. 12. There is one more aspect, i. e., the statement of Modulal PW 9. This Modulal is the owner of the hotel where the accused was detained by the villagers, the whole night. He is real brother of Gopal PW 10, i. e., Madholal PW 6 is his rea-nephew. This witness has been declared hostile by the prosecution, and he has no supported the prosecution version. No doubt, he is a hostile witness, and no reliance should be placed on such a witness, but, looking to the relationship with the deceased, his version is of great importance. He is real uncle of Madholal PW 6, that father of deceased Mst. Geeta. He was sleeping at his hotel when the accused was brought there by the villagers in the night. He is real uncle of Madholal PW 6, that father of deceased Mst. Geeta. He was sleeping at his hotel when the accused was brought there by the villagers in the night. He has stated his brother Gopal PW 10 along with his son Madholal PW 6, came to his hotel to search Mst. Geeta. But, he has not stated about the fact of Pachewara with the accused. He has not stated anything about the in terrogation regarding Mst. Geeta from the accused by the villagers and by Madho lal and his father Gopal, His statement was recorded by the police which is Ex, P. 9. In his cross-examination, he denied to have given any statement. This was not suggested to him that Modulal PW 9 had sided the accused. There was no reason for PW 9 Modulal to favour the accused. To the contrary, he was real uncle of Madholal, father of the victim. There was no question of his taking any interest to save the accused. As such, he is no doubt a hostile witness, but, in our opinion, he is an important witness, who falsifies the entire prosecution story, about the Pachewara, i. e., the identification of the Pachewara by Gopal and Madholal at his hotel. This witness also falsifies the story of interrogating the accused about Mst. Geeta. Thus, after scrutinising the entire prosecution evidence, we are of the opinion that the prosecution has not come with clean hands. They have manipulated and concocted the story. The accused was, no doubt, caught by the villagers in the night. As Mst Geeta was murdered by some one and the villagers could not trace out the murderer, the whole burden was thrown on the accused, and he was implicated in this case falsely. Actually, it was not known to anybody as to who had taken away Mst. Geeta in the night, how she was murdered, and how she was thrown in the river. Her death was due to asphyxia because of drowning. She had some injuries on her person, by some sharp-edged weapon. No sharp weapon was recovered from the accused. Regarding the rape, the doctor was also not sure whether rape was committed or not. He was definitely of the opinion that Mst. Geeta did not die on account of rape. The fact is that there was profuse bleeding on the private part of Mst. Geeta. No sharp weapon was recovered from the accused. Regarding the rape, the doctor was also not sure whether rape was committed or not. He was definitely of the opinion that Mst. Geeta did not die on account of rape. The fact is that there was profuse bleeding on the private part of Mst. Geeta. still, in view of all the facts and circumstances of the case, the doctor was not definite to say whether rape was at all committed on her or not. This is material, because the prosecution has failed to connect the accused with the crime. As discussed above, the prosecution witnesses in this case, are most unreliable and untrustworthy witnesses, and in order to make out a case against the accused, they have cooked up a false story and tried to convince the court. The learned Sessions Judge, in his judgment, has discussed the entire evidence and has relied the prosecution story and believed the prosecution evidence. We are of the opinion that, the learned Sessions Judge has committed a great error in believing the prosecution story. He has failed to appreciate the aspects of the prosecution story. He has also failed to appreciate the evidence given by the prosecution witnesses. We, therefore, fail to appreciate the finding of the learned Sessions Judge. He could not understand (he case in its right perspective. 13. In view of our above discussion, we are of the opinion that the prosecution has failed to prove its case against the accused-appellant beyond reasonable doubt. It has completely failed to establish that Mst. Geeta was taken away or kidnapped by the accused, who also committed rape on her and later on threw her in the river, where she died due to drowning, 14. In the result, the appeal of the appellant, Prabhulal, has full force, and the same is hereby accepted. His conviction and sentence under Sections 302, 376, &363, IPC, passed by the learned Sessions Judge, Bundi, are set aside. He is acquitted of the charges levelled against him, He is in jail. He be released forth with, if not required in any other case.Appeal allowed-Accused acquitted. *******