Judgment V.S. KOTWAL, J.:---Brevity is no doubt the laudible virtue of a judgment. However, that such a frame must contain within the necessary requirements of law is equally essential. Such details must reflect the blend of several items such as reading, analysing, appreciating and ultimately marshalling the evidence so as to entail into certain findings which in turn must be supported by reasons being in consonance with the evidence on record. Such a necessity is apparent so as to exhibit application of mind and also to assist the higher forum to understand the line of reasoning so adopted. Even erroneous findings and conclusion are required to be supplemented by adequate reasons. Some times it is not difficult to unmask the deceptively ostensible appearance of credibility form the items of evidence. More serious and brutal is the crime, more onerous obligation is cast on the Court to apply its mind carefully and cautiously and examine all the pros and cons about the entire material unfolded at the trial and this necessity becomes more prominent on the forefront when the offence is likely to be visited with the extreme penalty prescribed under law. Active and effective participation of the Presiding Judge in the proceeding also involves the process of properly assessing and examining all the items of evidence even when some shades of the material might have been missed by the parties. Dealing with a case entirely resting on circumstantial evidence requires thorough exercise. An anxiety and disturbing feeling on realisation that the perpetration of a brutal and heinous crime would go unpunished can well be understood. However, merely on that score, the requirement of law under the system of criminal jurisprudence vis-a-vis the standard of proof, the quality of acceptable evidence cannot be sacrificed so as to convert otherwise an utterly unacceptable and wholly inadequate evidence into the foundation of conviction. 2. Arithmetically speaking, the impugned judgment at hand runs into about eight printed pages. Out of those, about two pages are devoted in narrating the prosecution case while the topic of reasoning starts thereafter, though the said label is obviously misconceived and almost a misnomer since the utter and eloquent absence of reason is the characteristic of the judgment. Even in that category about one and half pages are consumed by such items in respect of which there was hardly any controversy. Even in that category about one and half pages are consumed by such items in respect of which there was hardly any controversy. It is thereafter that the real aspect about the involvement of the accused in the alleged crime in question is discussed hardly within two pages, which quite surprisingly refers only to the gist of the prosecution case and the evidence in chief and that too in the most cryptic manner, whereas the rest portion of about two and half pages is directed to the quantum of sentence in which category there could hardly be any difficulty. The judgment, therefore, no doubt very much adheres to the concept of brevity, but blissfully misses the contents within. With respect, the impugned judgment therefore, is extremely vulnerable in all respects. All this is de hors of the conclusion and its validity or otherwise reached by the learned trial Judge. The net result is that there will occur reversing of position in that the judgment on this forum will have to be in details like the one required to be recorded by the trial Court whereas the judgment of the Court of the first instance tends to be on par with an appellate or revisional judgment where the findings of the trial Court are being endorsed. 3. These are some of the thoughts that occurred during the course of this proceeding and which linger even after the termination of the proceeding. 4. So ends the prelude and starts the merits. 5. A family consisting of parents and children belonging to lower state and financially oppressed was residing in the hutment area of Aarey Colony of Goregaon of this metropolis. There are different units where hutments are scattered and this family was residing Unit No. 14. Bhiva is the father and Mahu is the mother. Among the children was the daughter aged about 10 years by name Sagri and who unfortunately is the victim of the incident where she met a very violent and equally tragic and pathetic death. It was on April 18, 1984 at about 11 a.m. the child Sagri left the hut with a cloth bag for the purpose of plucking Jambhul fruits. These trees are located in the vicinity which has a jungle of trees and bushes. It was on April 18, 1984 at about 11 a.m. the child Sagri left the hut with a cloth bag for the purpose of plucking Jambhul fruits. These trees are located in the vicinity which has a jungle of trees and bushes. The appellant herein is employed as an attendant in a stable located nearby and he also resides in the same area and it is alleged that he spotted this young child proceeding all along and he developed a devilish lust to satisfy his sexual urge. With that evil object he accompanied the girl towards the said jungle area may be under pretext of helping her to pluck the fruits and it is alleged that the child, as innocent she was and unmindful of evil design, accompanied him. It is further alleged that after going to a secluded spot under a tree, the accused molested the girl forcibly so much so that she sustained several bleeding injuries on her person including the private parts and not being satisfied with the said atrocities, as per the prosecution case, the accused is alleged to have smashed her face, nose and eyes with stone causing further bleeding injuries. Sagri was at that time having a while piece of cloth wrapped around her waist and used as undergarment. 6. In the next phase the prosecution allege that around about noon time when the family had gathered for lunch, the father noticed absence of Sagri and he shouted in her name, but there was no response. The father being apprehensive and anxious left in search of Sagri and he happened to come to that spot in the jungle area when he noticed that Sagri was lying under a tree sustaining bleeding injuries and was practically groaning in agonies. He, therefore, lifted her and kept at a short distance under a Mango tree and shouted in the name of his wife Mahu, Who rushed to the spot and saw the tragedy. The upper-most anxiety was not only to inform the police but to got medical aid. Bhiva-father, therefore, rushed to the police station and contacted P.S.I. Kambli where his complaint was recorded. P.S.I. Kambli accompanied him and they all went to the spot and immediately moved Sagri, who was by the alive. She was admitted in Cooper Hospital, though her condition was obviously precarious. Bhiva-father, therefore, rushed to the police station and contacted P.S.I. Kambli where his complaint was recorded. P.S.I. Kambli accompanied him and they all went to the spot and immediately moved Sagri, who was by the alive. She was admitted in Cooper Hospital, though her condition was obviously precarious. Inspite of best of the medical efforts the child ultimately succumbed to the injuries at about 3.30 p.m. The offence which was initially under section 307 of the Penal Code along with one under section 376 was converted to one under section 302 of the Penal Code and further investigation commenced, which was then taken over by P.I. Patil, who was attached to that police station. 7. P.I. Patil accompanied by P.S.I. Kambli went to the spot in that jungle area but it is almost surprising to note that no panchnama was drawn either on the same evening or on the next day and in fact it was not so drawn upto 22nd April, 1984. By that time only inquest was drawn and autopsy was carried by Dr. Khanolkar and he opined that the girl was subjected to forceable sexual intercourse and was also subjected to physical violence and death was direct result of the said violence. There was apparent lull atleast for four to five days as no substantial progress in the investigation was done. 8. In the third phase several events occurred in quick succession only on 22nd April, 1984. The prosecution claimed that P.I. Patil along with the police staff attached to that police station had gone to that jungle area at about 2 p.m. and object of the mission is said to be for combing the jungle. At that time to their surprise they noticed the presence of the appellant accused in the vicinity and he was moving in suspicious circumstances. When questioned the accused could not explain satisfactorily and in fact, as per the prosecution allegations, he gave evasive answers. Therefore, this put the Police Officers more on guard entailing into arrest of the accused in that area itself. He was then brought to the sub-police station near Aarey Colony. It is then alleged that the accused volunteered to discover certain articles. Therefore, this put the Police Officers more on guard entailing into arrest of the accused in that area itself. He was then brought to the sub-police station near Aarey Colony. It is then alleged that the accused volunteered to discover certain articles. Consequently services of two panchas were requisitioned and in their presence the accused made a certain statement in pursuance which he had led the police and panchas to that jungle area and nearabout the spot from where Sagri was initially lifted by the father when she was alive. From nearabout that spot the accused pointed out piece of cloth and cloth bag. Both were lying there and both had stains of blood and close to the articles a stone was lying which also exhibited signs of blood. All these articles were then attached under a panchnama. Before leaving the police station accused had also expressed his willingness to produce under-garment viz. underpant and lungi that he had kept in his house and so he led the police and the panchas to his room which is located in the servants quarters nearby. There in the common passage a lungi and underpant were found kept hanging on the string. Both these articles were attached under the same panchnama. It was revealed that it had blood stains as well as semen stains. In due course these articles were forwarded to the Chemical Analyser, who certified that some of the items contained blood of blood group talling with that of Sagri while blood group of accused was entirely different. 9. In the last phase there again occurred a full from 22nd to 26th April, 1984, during which period again there was not much of progress in the investigation and no clues were afforded. However, the police had adopted an unusual procedure by taking the accused during all these days to the same locality and were asking the people whether they had seen the accused or knowing anything about the incident. Upto 26th it fetched no result. However, on the 26th when the exercise was made on the same pattern one person by name Kumar Kadirwal came out with a case that he had seen the accused with the said girl Sagari proceeding towards the jungle area on the fateful day i.e. April 18, 1984. His statement was therefore, recorded. Upto 26th it fetched no result. However, on the 26th when the exercise was made on the same pattern one person by name Kumar Kadirwal came out with a case that he had seen the accused with the said girl Sagari proceeding towards the jungle area on the fateful day i.e. April 18, 1984. His statement was therefore, recorded. On the 27th yet another witness by name Dilip Ghadge also narrated the incident in the same manner as he had seen the accused in the company of the girl on the fateful day and his statement was also recorded. There after, however, no further evidence was collected. 10. Ultimately after completing the investigation the accused came to be charge-sheeted before the learned Metropolitan Magistrate and ultimately he faced a trial in Sessions Case No. 432 of 1984 before the learned Additional Sessions Judge for Greater Bombay for offences under sections 346, 366, 376 and 302 of the Indian Penal Code for having kidnapped minor Sagri out of the lawful custody of her father, thereafter having raped her and ultimately liquidated her. 11. Pleading not guilty to the charge, the accused came out with a theory of total denial and claimed to be innocent and also asserted that he had absolutely no knowledge about the incident much less he was concerned with the same. He denied to have discovered any articles including the lungi and underpant alleged to have been found in his house. 12. The learned Additional Sessions Judge on the basis of the evidence held the complicity of the accused vis-a-vis the incident in question established. He further held that the offence under section 346 of the Penal Code could not be held to have been established because the kidnapping was not with the object of murdering the girl. In keeping with these findings he ultimately convicted the accused for the offences under sections 366, 376, and 302 of the Penal Code. On the first two counts the accused was sentenced to R.I. for 7 years while on the third and major count the learned Judge felt that having regard to the brutality and ghastly nature of the offence this could be styled as rarest of the rare case which must be visited with the capital sentence and consequently on that count the accused was sentenced to death. This order July 5, 1985 is being challenged by the appellant accused by filing his own appeal while a reference made by the learned Sessions Judge is also tagged along with this. For obvious reasons both are being disposed of by this common judgment. 13. We have already narrated the frame-work of the prosecution case. As regards the allegation of the prosecution that the girl was subjected to rape and was ultimately murdered, there can hardly be any controversy and in fact it is not disputed. It is not necessary to give the details of the same. A few items in that behalf may be cursorily mentioned. The first is that the evidence of father Bhiva himself, who saw the girl lying under the tree groaning in agonies having sustained bleeding injuries all over her body and body was exposed naked. The mother Mahu has also deposed on the same lines. Dr. Mehrotra (P.W. 12) was then working as Medical Officer attached to Cooper Hospital and was first to examine the girl on that afternoon. According to him, the condition of the girl was extremely precarious and she was gasping for breath and was showing sigh of sinking and was therefore, taken to Emergency department. Ultimately inspite of prompt treatment the girl unfortunately succumbed to the injuries at 3.30 p.m. He has asserted that the girl had sustained bleeding injuries on various parts of the body. There was also head injury and the entire face was smashed. The medical certificate in that behalf is produced at Exhibit X-1, which describes various external injuries which were about seven in number some of which were incised wounds while others were lacerated one and those were practically on the region of the face. After the girl succumbed to the injuries, an inquest was drawn. The same is at Exhibit 16, which also describes all the injuries. In that category we have also the evidence of Dr. Khanolkar (P.W. 14) who carried the autopsy and post mortem notes are at Exhibit 34. That medical evidence is not challenged by the defence at all. According to Dr. Khanolkar, there were eight external injuries all of which were ante-mortem and those were on the face, head and the face region was completely smashed and nostrils were in bad shape. On internal examination he noticed depressed fracture on the skull. That medical evidence is not challenged by the defence at all. According to Dr. Khanolkar, there were eight external injuries all of which were ante-mortem and those were on the face, head and the face region was completely smashed and nostrils were in bad shape. On internal examination he noticed depressed fracture on the skull. He also noticed severe damages to the private part and the vaginal orifice was widened and blood clots were noticed; hymental tags were found which according to him was essentially due to penetration of disproportionately heavy object which completely tore the hymen. He had positively opined that the girl was subjected to rape and all those injuries were sufficient in the ordinary course of nature to cause death. All this obviously could have been only if the girl was kidnapped. Consequently in so far as formulation of these three offences are concerned there can hardly be any dispute and particularly the homicidal nature of death is beyond any controversy. 14. Nonetheless the most crucial question about the nexus of the appellant with the crime in question does not pose much of the difficulty in the instant case having regard to the poor quality of the evidence adduced by the prosecution, though surprisingly major portion of the said evidence found favour with the learned trial Judge. The prosecution placed reliance essentially on the three items of evidence. The first is that there is evidence of two witnesses Kumar Kadirwal and Dilip Ghadge in the first category pertaining to the witnesses having last seen together the deceased and accused just prior to the alleged incident proceeding towards the scene of offence. The second category pertains to the alleged discovery under which the accused is supposed to have shown a spot where the alleged offence was committed and also a piece of cloth and cloth bag in that vicinity and also blood stained stone. All these articles had stains of human blood. The third category also embraces the alleged discovery about the lungi and underpant belonging to the accused and that was produced by him from his room in the servants quarters. These two discoveries which were under a composite memorandum and composite panchnama were done on 22nd April, 1984, while these two witnesses who fall in the first category came forward for the first time on 26th and 27th April, 1984. These two discoveries which were under a composite memorandum and composite panchnama were done on 22nd April, 1984, while these two witnesses who fall in the first category came forward for the first time on 26th and 27th April, 1984. The prosecution then tried to connect all these articles with the crime and the accused by virtue of Chemical Analyser's report regarding blood analysis. The prosecution also sought to place reliance on yet another circumstance though comparatively a minor one that when the accused was examined on the 23rd April, 1984, by the Medical Officer, Dr. Patel (P.W. 10) he noticed an old scar or abration and it was suggested by the prosecution on that basis that may be that it came into existence on account of nail scratch which could have been done by the girl offering certain resistance at the time of the incident. This is the entire bulk of evidence that is led by the prosecution to establish the complicity of the accused. 15. The reasoning part, if at all did contain any details in respect of all these items, is extremely vulnerable. The learned trial Judge in so far as the first category of the said two witnesses is concerned indicated that he was not impressed by that evidence mainly because it was too much to accept that they could have remembered having seen the girl and the accused going together when the accused was utter stranger to them and had seen the accused for the first time on 18th April. The learned trial Judge in that behalf has observed that--- "The evidence of these two witnesses therefore, on the point of identification is considerably weak. It would not definitely prove that it was no other than the accused who was culprit but it would only indicate that someone similar to the accused was a culprit." Whatever phraseology has been used, the apparent hesitancy in the mind of the learned trial Judge has been fully exposed. After recording this finding the learned trial Judge felt that there is other evidence which was acceptable to him to corroborate this evidence. After recording this finding the learned trial Judge felt that there is other evidence which was acceptable to him to corroborate this evidence. We are unable to trace any rationale in this process inasmuch as having first recorded a firm finding that the evidence of these two witness was highly dubious and their claim of identifying the accused as being same person hardly being of confidence, it would be futile that some corroboration is sought to this item from other evidence. The tenor of that judgment, however, makes it clear that the learned Judge was not prepared to place any reliance on the testimony of these two witnesses. 16. In that behalf a few additional features can be incorporated to reinforce that finding. Kumar Kadirwal (P.W. 3) was residing in Unit No. 13. At about 10 a.m. on 18th April, 1984 he was proceeding to a Transit Camp and was returning home by about 11-30 a.m. At that time he saw the accused holding a small girl of 10 years, who was having cloth piece wrapped along the waist and the accused was wearing lungi. He was contacted by the police on 26th April, 1984 and when he gave his statement for the first time claiming to have seen these two persons last in the company of each other. For obvious reasons it is very difficult to place any reliance whatsoever on the testimony of these witnesses. The infirmities are so obvious that a detail comment need not detain us. It is however, worth noting that the witness admits that on the same night i.e. 18th April, 1984 he learnt that somebody had raped the girl and had murdered the girl and at that time it did occur to him that it could have been the same person and the same girl who were seen by him proceeding towards jungle area. Inspite of that he observed eloquent silence though he claims to have informed the family members though no one came forward to support him. He has admitted that he was the riding bicycle. He had not seen the accused any time prior to the said date. He had obviously a momentary glimpse as he was riding bicycle while two persons were going on foot. He has admitted that he was the riding bicycle. He had not seen the accused any time prior to the said date. He had obviously a momentary glimpse as he was riding bicycle while two persons were going on foot. He has admitted that he saw the accused thereafter for the first time on 26th April when the police had brought the accused to his house and as stated at the threshold a very peculiar procedure has been adopted; in that police had taken accused to different persons and asked them specifically whether they had seen this accused in the company of the girl. P.I. Patil (P.W. 15) makes no secret of this situation when he admits and which admission can be reproduce in his own words as :- "Q. : Did you try to contact any witness ? A. : I was in search of the accused first. We were also trying to see if there were any witnesses. I was also making efforts to trace the witnesses......Till 22nd April, 1984 we did not get any witnesses, who had seen the accused. Q. Why did you not make inquiry to see if there were witnesses without taking the accused with you ? A. We were making inquiries with the accused and without the accused also. Q. Without accused with you, you did not get any eye-witnesses ? A. That is correct." The witness further admitted when confronted with this situation that having once adopted this procedure of showing the accused to the witnesses, the whole purpose of holding of prospective identification parade was frustrated. Shri Walawalkar, the learned Counsel, rightly assails this procedure and submits that this was the creation of the Police Officers, as it was really not necessary to show the accused to the witnesses. It is also not understood as to why no body came forward right from 18th till 26th April and as to how many persons were contacted by the Police Officer upto 26th, though on his own admissions upto that date he did not get any single witness, who could throw light in that behalf. 17. Going back to the evidence of P.S. 3 Kumar, it is worth noting that he has artificially created an occasion so as to bolster his claim of having seen the accused and the girl. 17. Going back to the evidence of P.S. 3 Kumar, it is worth noting that he has artificially created an occasion so as to bolster his claim of having seen the accused and the girl. According to him, he is labourer on daily wages engaged at Aarey Milk Colony. He was getting Rs. 11/- per day. That indicates his financial position and it further indicates that he could not afford to miss his wages on any day. Inspite of that he admits that on 18th April he could not go on work and he was not bound to go for work on any particular day. Perhaps realising the slippery nature of this statement he further added that there was a religious function and Pooja at a particular Mandir in that area on 16th, 17th and 18th, and it is because of that he did not report on duty on those three days. He admits that he had gone to the Mandir only at 6 p.m., meaning thereby that his presence to attend the said religious function for all the three days was not necessary for during the entire course of day and therefore, it was not really necessary him to skip daily wages during all these three days. There can hardly be any doubt that he had artificially created this occasion and obviously offers this reason for not reporting to the duty. He has not stated before the police that the accused was wearing lungi of that the girl had a cloth bag in her hand. Anxiety to support the prosecution has been done in equally artificial manner when he could even identify colour of the bag that was in the hand of the girl. The evidence of the other witness Dilip (P.W. 5) is no better and does not improve the prosecution case and suffers from the same infirmity. He was residing in the same area. This witness also came out with equally specious ground that he did not attend to his duty as he was working as helper in Virvani Industrial Estate. Because he had some domestic work at 11-30 a.m. he had gone to Jogeshwari on foot. While proceeding towards Unit No. 13 he saw the girl and boy proceeding towards jungle area. It is on 27th April, 1984 that police had brought the accused to his house and his statement was recorded. Because he had some domestic work at 11-30 a.m. he had gone to Jogeshwari on foot. While proceeding towards Unit No. 13 he saw the girl and boy proceeding towards jungle area. It is on 27th April, 1984 that police had brought the accused to his house and his statement was recorded. He claims to have identified the accused as the same person. On the same evening that he learnt that the girl was murdered and therefore, he was convinced that the girl and boy seen by him were obviously involved in that incident. After having stated the reason of domestic work for not reporting duty, the witness changed his stance and came out with a case that he had not gone to work only because he had gone to his friend to seek another job because on that day only he felt that the salary he was fetching was quite meagre. It was too much of coincidence that this thought could occur to him that his salary was meagre only on that day. There is apparent infirmity on the basis of which his tall claim having seen the accused and girl requires to be rejected outright. According to him, he has indicated as to what place he saw these two persons going by road. The sketch is proved by P.W. 1 Ramanand and it shows the location and roads. Even a cursory glance would indicate that the claim made by this witness is utterly false inasmuch as according to him, when he entered the junction of the road which can be stated as main road leading to katcha road he saw these two persons going by road and coming from the opposite direction. This junction is far away from the scene of offence and in fact if the accused and girl were coming from the opposite direction that is proceeding towards the katcha road then they would be going diagonally opposite to the main spot meaning thereby that these two persons could not have gone to the scene of offence but could go entirely in different direction. Obviously he had not seen the accused proceeding all alone after commission of offence in which event the accused being seen nearabout that junction could be accepted. Obviously he had not seen the accused proceeding all alone after commission of offence in which event the accused being seen nearabout that junction could be accepted. Thus the location given by him in unmistakable terms makes it clear that he could not have seen any person at the junction of that road as stated by him. This is a strong pointer to discard his evidence. He has also told the line of the other witness where he had not disclosed to the police that the accused was wearing a lungi and that the girl was carrying a cloth bag, though he asserted otherwise at the trial giving even the colour of the small cloth bag. He had not disclosed this to anyone even though he was convinced that the accused was involved in the same incident. It is also very difficult that he could have such a firm glimpse of this person so as to have a firm imprint on his mind to identify the accused. The infirmities as reflected in the evidence of P.I. Patil would also apply to this witness. Though the witness tried to make out a case that he was reluctant to get involved still he did pose as a witness. Curiously, the location of spotting the accused and the girl by this witness also does not fit in with the prosecution case. 18. Having regard to this nature of evidence which is not only of poor quality but which is extremely dubious, we are unable to persuade ourselves to accept the testimony of these two witnesses on any count, though Shri Gangakhedkar the learned Public Prosecutor, had endeavoured to place reliance as he was entitled to. We are firm in our opinion that this evidence is absolutely unbelievable and created for the purpose of this case and thus cannot be used for any purpose much less to lend corroboration to other evidence and the counter part is that no other evidence which even acceptable could corroborate this item of evidence on its own merits and it deserves to be discarded outright. This completes the discussion about the first category of the two witnesses who claim to have seen the accused and the girl. 19. We have been left with the two remaining circumstances which really flow out of the alleged discovery on 22nd April, 1984. This completes the discussion about the first category of the two witnesses who claim to have seen the accused and the girl. 19. We have been left with the two remaining circumstances which really flow out of the alleged discovery on 22nd April, 1984. To understand this feature some of the other aspects also require atleast a cursory mention and some of those features are so baffling that no reasonable explanation has been tendered on behalf of the prosecution. To recapitulate, according to the prosecution, on 22nd April, 1984 P.I. Patil had gone along with police staff to the jungle area where they noticed accused moving in suspicious manner and when questioned he was indulging in evasive answers and therefore, he was put under arrest. He was brought to the police station where he expressed his willingness to point out the place of offence and articles as also desired to show the garments belonging to him kept in his house. The memorandum in that behalf is at Exhibit 11 and the panchnama is at Exhibit 12 as two panch witness were called for the purpose. The prosecution relied on the evidence of panch Rustom Patel (P.W. 4) in that behalf in addition to P.I. Patil. The accused then led them first to the jungle area nearabout a tree from where cloth bag and piece of cloth as also a stone partly embeded in earth were found and close thereto at a short distance a stone was found. All these articles were stained with blood. The accused then took these people to his room in the servants quarters form where a lungi and underpant which were kept hanging on the string in the passage outside the room were attached. The prosecution then sought to connect these articles with the alleged crime on the basis of the report of the Chemical Analyser. To be precise, the underpant Article 4 discovered form the house of the accused had blood stains of human origin and on a further analysis it found to have contained 'B' group and as per the medical evidence and the Chemical Analyser's report the deceased Sagri had 'B' group while blood group of the accused was admittedly 'A' group as deposed to by Dr. Gavhane (P.W. 13). Gavhane (P.W. 13). Further it is brought on record through that evidence that on the same articles semen stains were found and on further analysis those semen stains were of blood group 'A' and that is how that was tagged with the accused. The stone, cloth bag and piece of cloth had also blood of human origin with 'B' group while lungi found at the house of the accused had semen stains of 'A' group. On the basis of these features the prosecution claim that the discovery connects the accused with the crime. 20. In so far as these items are concerned, the learned Judge had equally cryptically discussed the same though in fact there are not reasons nor any marshalling of evidence in that field. Thus the learned Judge merely narrates as to how the underpant Article 4 was discovered by the accused from his house. The learned Judge then observes that it is connected by Chemical Analyser's report on the basis of blood group and the semen stains. He merely narrates what has been unfolded by the prosecution at the trial without assigning any reasons as such on the basic aspect of foundation as to whether the discovery is acceptable or not. It is very significant to note that almost a reverse procedure is adopted, with due respect when first he considered Chemical Analyser's report and thereafter he refers to the alleged discovery of underpant. Not a single reason has been assigned as to why the learned Judge was impressed with the discovery evidence. It is manifest that it is only if the discovery is acceptable then its nexus with C.A. report could be achieved. It is obvious that the learned Judge has assumed something which is required to be proved by the prosecution and on that erroneous assumption he has recorded equally erroneous finding. 21. In respect of the alleged discovery of stone, piece of cloth, cloth bag and lungi the situation is still worst vis-a-vis judgment. It is reflected only in a short paragraph 19 and to appreciate the utter vulnerability of the same, this cryptic paragraph can be reproduced to high-light that it does not contain a single reason even inferentially or by whisper to supplement the finding. It is reflected only in a short paragraph 19 and to appreciate the utter vulnerability of the same, this cryptic paragraph can be reproduced to high-light that it does not contain a single reason even inferentially or by whisper to supplement the finding. The said paragraph reads as :--- "Thirdly, the accused led the police and the panch to the discovery of the place and particularly the spot where the stone having blood was found and where the cloth piece and the cloth bag were also found. The accused also led the police and the panch to the discovery of the underwear which had blood of 'B' group and semen of 'A' group. A lungi was also found there which had semen of 'A' group which indicates that the lungi was of the accused". This is the only discussion on this vital aspect. To expose its vulnerability in our opinion no serious comments are necessary. The same fallacy has crept in as the learned Judge has merely referred to what has been unfolded by the prosecution and was more impressed by the Chemical Analyser's report rather than by quality or evidence vis-a-vis the alleged discovery. 22. All this again has cast a further obligation on this forum to go through the evidence in more details as if treating it as being judgment of trial Court. With the assistance of the learned Counsel for both sides we have gone through the evidence and we have not the slightest reservation to discard the same as thoroughly not acceptable. Once the foundation itself is unacceptable then the impact of the Chemical Analyser's report's vis-a-vis the finding of blood stains and blood group would pale in the background. Some of the features in that behalf can well be reproduced with advantage and which would have adverse impact on the credibility of this evidence. 23. It is worth noting that according to the estimate given by P.I. Patil accused was interrogated in the jungle area itself on 22nd April, 1984 for more than one and half hours before he was taken to Aarary Sub-Police station, where panchas were called. As to why so much time was required is not properly explained. 23. It is worth noting that according to the estimate given by P.I. Patil accused was interrogated in the jungle area itself on 22nd April, 1984 for more than one and half hours before he was taken to Aarary Sub-Police station, where panchas were called. As to why so much time was required is not properly explained. It was also submitted on behalf of the defence that if this was correct then either the appellant was not in mood to make any disclosure for quite some time and if ultimately after that interrogation he did make any statement before P.I. Patil then the police must have known by that time as to where articles were lying and as to which was the scene of offence more so when according to P.I. Patil all this happened in that area itself from where the scene of offence could not be far away and consequently the disclosure before the panchas and the further discovery looses all its significance. This contention also cannot be lightly brushed aside. It is also in evidence that even according to prosecution the piece of cloth, cloth bag, and the stone were lying in the open so that those could be noticed by anyone and that the spot was obviously accessible to several persons. Admittedly these article were not concealed. Neither memorandum nor substantive evidence of the panch and P.I. Patil even inferentially indicate that the accused had admitted the facts of concealment of any object or authorship thereof or that he himself had kept though not concealed any object at the scene and piece of cloth and cloth bag were not referred to even inferentially in any of the documents. The impact of this situation would obviously be against the prosecution. Shri Walawalkar, the learned Counsel further contended that it is rather difficult to accept that a piece of cloth as also the small cloth bag could remain at that place for nearly five days and thus could withstand all other features including the breeze or wind. As stated, accused had not made any statement that he would point out the piece of cloth and cloth bag and merely referred to as a place and the stone. The piece of cloth is alleged to have been stained with semen also apart from blood stains. As stated, accused had not made any statement that he would point out the piece of cloth and cloth bag and merely referred to as a place and the stone. The piece of cloth is alleged to have been stained with semen also apart from blood stains. No positive opinion could be obtained from the Chemical Analyser about the blood group in respect of semen stains thereon as is clear from the Chemical Analyser's report. It is also cannot be overlooked that as per the evidence, if it is to be accepted, the spot which was the alleged scene of offence had blood patches on the ground and the dried leaves thereon which were visible even apparent, apart from the other articles lying near about and if that be so, then the Investigating Officer would never have missed spotting that location if he had investigated in that respect in order to find out scene of offence especially when he learnt that spot 'B' was the place where the girl was kept after the incident by father. This would also indicate that atleast he could have really gone to the spot 'B' once he was posted with that knowledge on the 18th itself and once he had gone there then spot 'A' was not far away and his apparent anxiety and curiosity would have obviously led him to spot 'A' on the 18th itself. Significantly P.I. Patil took enough care not to clarify or not even to make any disclosure as to what he did on 18th evening when he had gone to the spot in question though he admits that he had gone there only for the purpose of investigation of that case. As stated, lungi and underpant were kept in the open hanging on the string in the common passage of the quarters and not inside the room. They were thus not concealed. It is also not positively established that the said portion was in exclusive possession of the accused or that those wearing apparels belonged only to the accused. The accused though not has specifically denied it has certainly not admitted it. Six to seven tenaments had same common passage and several other persons were residing there. P.S.I. Kambli not uttering anything about his visit at the site on 18th evening is quite relevant, though according to P.I. Patil, P.S.I. Kambli had accompanied him. 24. The accused though not has specifically denied it has certainly not admitted it. Six to seven tenaments had same common passage and several other persons were residing there. P.S.I. Kambli not uttering anything about his visit at the site on 18th evening is quite relevant, though according to P.I. Patil, P.S.I. Kambli had accompanied him. 24. As observed at the threshold itself, it is an accepted position that at about noon time the father noticed that the daughter who was still alive was lying under a tree particularly groaning in agonies. He called his wife and thereafter rushed to the Police Station and brought P.S.I. Kambli, who immediately carried the victim to the Cooper Hospital. Though no panchnama was drawn at that spot at that time can well be explained on a sound footing that upper-most anxiety of the Police Officer was to extend as early as possible adequate medical aid to the victim so that her precious life can be saved. So far no blame can be put at the doors of the Police Officers. However, the utter inaction thereafter exhibited by them cannot be explained on any rationale hypothesis. It is an accepted position that after the girl succumbed to the injuries at about 3.30 p.m. and when the offence was registered under the section 302, investigation was taken over by P.I. Patil, a Senior Police Officer. P.I. Patil admits that on the same evening i.e. on 18th April he along with P.S.I. Kambli had gone to the jungle area and scene of offence. Inspite of that he did not bother to record any panchnama of the same vicinity or scene of offence. Absolutely no explanation is forthcoming even on this forum about this inaction. Significantly P.S.I. Kambli, who has been examined earlier has not deposed to the aspect though P.I. Patil makes the situation very clear. Apparently there was no impediment as such for the Police Officers to record the panchnama which was a must under the circumstances. However, granting allowance on the premise that it might have been dark on that time, still there is no reason as to why no panchnama could be drawn on the next morning or any time after 18th April, 1984 because the panchnama came to be recorded for the first time after 3 p.m. on 22nd April, 1984 and that too in very peculiar circumstances. 25. 25. It is then apparent from the record that the father had first seen the daughter lying under a tree known as Kumbhali tree which is the spot shown by letter 'A' on the sketch Exhibit 4. The father then lifted the daughter and kept her at a short distance under a Mango tree which is shown by letter 'B'. The distance between the two is not substantial. He then rushed to P.S.I. Kambli and brought him to the spot, who picked her up from spot 'B' and moved her to hospital. It is apparent that P.L. Patil much have gone to that area on the same evening for the purpose of investigation and not as an idle formality. P.S.I. Kambli was with him at that time and there was no difficulty for P.I. Patil to locate the spot 'B' where the girl was kept, even then no panchnama was drawn upto 22nd April, 1984 even of spot 'B'. It is reasonable to accept that the father must have told the police that the girl was lifted from another spot 'A' and was kept at spot 'B'. However, this does not rest merely on conjecture because there is a positive admission given by P.I. Patil as :--- "At that time I did not know that was the place of offence and I only know that girl was kept there." This perhaps he was referring to the spot 'B' where the girl was kept. However, the fact remains that after this admission P.I. Patil was posted with the knowledge that this was the spot where the girl was kept and this was not the spot where the offence was committed where the girl was lying earlier. These two spots are hardly at a short distance from each other and therefore, even a slight exercise on his part would have disclosed to him the other spot 'B' where the incident occurred and where the cloth bag and piece of cloth were lying. This is more so because even according to the prosecution these articles were at close distance between spot 'A' and 'B' and it is not as if that inspite of the diligent search these articles could not have been traced by the Investigating Officer. This is more so because even according to the prosecution these articles were at close distance between spot 'A' and 'B' and it is not as if that inspite of the diligent search these articles could not have been traced by the Investigating Officer. The upper-most but an equally elementary anxiety on his part would have been to search the vicinity to find out the traces as clues for the offence and especially when he knew that was not the spot where the offence was committed, but the girl was kept there. Admittedly, the father was with him and this would have further facilitated him in locating the order spot 'B' and in any event irrespective of all these features it could not be difficult for him to locate the piece of cloth and cloth bag lying in between the two spots. Nothing of the sort has been done by him either on 18th or any time thereafter upto 22nd April and even on 22nd April it was not done by the Investigating Officer. But according to him, the situation occurred to which he did not contribute which ultimately facilitated him to record the panchnama. This infirmity in our opinion is a strong pointer not only to doubt but even to discard that evidence. The matter however, does not rest there. 26. There is yet another pointer in that field, which runs counter to the prosecution case. P.I. Patil admits that after he took over the investigation in the afternoon of 18th April from P.S.I. Kambli, he recorded a supplementary statement of the complainant i.e. father of the girl and he also recorded the statement of the mother. Even on the next day i.e. on 19th April he recorded further supplementary statement of the complainant father. As is clear from the evidence, the father himself had seen the girl where she was assaulted and which is at spot 'A' near Kumbhali tree and it is he who himself lifted the girl and placed her under the Mango tree at spot 'B' which is at a short distance, and thereafter he went to the police station though before that he had called his wife also. That means atleast the father fully knew that the spot 'B' was not the scene of offence but he was also fully aware of the location of spot 'A" where the alleged offence had taken place. That means atleast the father fully knew that the spot 'B' was not the scene of offence but he was also fully aware of the location of spot 'A" where the alleged offence had taken place. However, if he had gone to spot 'A' then in the first instance he could not have missed the piece of cloth and the cloth bag as well as the blood on the ground and on the stone at the said spot 'A'. In any event it is but natural that he must have disclosed to P.S.I. Kambli as also P.I. Patil when his complaint was recorded on the 18th, supplementary statement on the same evening before P.I. Patil went to the jungle area and also when his supplementary statement was recorded on 19th morning after P.I. Patil had come back from jungle area. This is fortified by P.I. Patil's admission that at that time he knew that spot 'B' was one where the girl was kept by father and thus was not the scene of offence. The mother was along with P.I. Patil atleast for some time on the 22nd when the alleged discovery was in progress. The total effect of all these features would make it extremely probable that not only the father himself knew about the spot 'A' but even P.I. Patil must have learnt about it much prior to 22nd April. The father and mother who had gone there could have not escaped noticing these articles nearabout spot 'A' and further more it stands no more to reason that the spot was known to police and therefore, articles also would not have been missed by them. This therefore, is a further strong pointer to make the alleged discovery of 22nd April absolutely inconsequential though the evidence in that behalf about the discovery itself is extremely doubtful. 27. As indicated these articles which were lying at close distance could have been noticed by the Investigating Officer either on the 18th April itself or any time thereafter. As regards the alleged discovery of 22nd April a very unusual feature has been introduced in the evidence by P.I. Patil as to how providence was helpful to him so that he could record the panchnama atleast on 22nd April. As regards the alleged discovery of 22nd April a very unusual feature has been introduced in the evidence by P.I. Patil as to how providence was helpful to him so that he could record the panchnama atleast on 22nd April. He thus asserts that on 22nd April at about 2 p.m. it just occurred to him that he could go to that area which could have been for the purpose of investigation. When confronted he admits that he went there for combing jungle area and he further clarified that this he thought to be necessary as somebody or culprit might be hiding in that area. Surprisingly it almost is a problematic feature as to how he felt that the culprit might be in that area five days after the incident. For that feeling also there is no rationale nor any reason has been assigned by the witness. This itself sounds extremely dubious apart from being artificial. Then as the providence would further help him, as he went to that jungle area even steps of the accused were diverted so synchronising the timing that the accused was spotted in that vicinity by the said officer. What accused was doing has not been clarified except vaguely stating that he was moving in suspicious manner. As to what contributed that tangible feeling has remained in vacuum. Synchronising of events and timing is reflected in an unusual manner when the Police Officer felt like going to the jungle area on a specious ground for combing jungle while at the same moment equally after five days the accused had an urge to go to the same spot ostensible for no reason. It is quite relevant to note that if the accused was the perpetrator of the crime and his going to the said jungle area was motivated to wipe out the traces of offence then it becomes equally difficult to imagine as to why a person with that mental frame should not have achieved that object soon after 18th April and as to why he was required to wait for five days when he knew that the girl's father had already lodged the complaint about the incident. The entire episode as depicted by P.I. Patil not only smacks of artificially but is very much against the common sense and normal human conduct. The entire episode as depicted by P.I. Patil not only smacks of artificially but is very much against the common sense and normal human conduct. Further it is in evidence that the accused was about 700 to 800 feet away from P.I. Patil when he was first spotted. If it is to be taken that the accused was at about 700 to 800 feet away not from police but from Kumbhali tree as per the evidence then that situation is also not favourable to the prosecution inasmuch as accused being far away from the scene of offence can hardly create any sinister inference against the accused. Two features harmoneously flow out of this situation. The first is that the accused was obviously not anywhere in the close vicinity of the scene of offence and he had allowed to the articles to remain in tact not only upto 22nd April but even on that day. There was nothing incriminating at the spot where he was located. However, even after he noticed and even heralded the presence of P.I. Patil and police staff the accused made no endeavour to run away from the spot but he just stood there so that the Police Officers could march towards him and apprehend him. The police could do exactly the same thing and accused could behave in the same manner. The accused was directed by providence to go to that spot and when the arrival of the P.I. Patil was noticed he just awaited for being arrested keeping all the incriminating articles in tact. To term the entire evidence as credible would really be a misnomer, and far away from reality. 28. As indicated earlier, it is futile for the prosecution to contend that these articles could not have been noticed by the Police Officers right on the 18th or any time thereafter until those were alleged to have been shown by the accused on 22nd April and as such it is more probable that the police had knowledge about those articles. Furthermore, the articles were lying in the open space not concealed at the spot accessible to all the people, and thus could not be said to be in the exclusive knowledge of the accused alone much less of his authorship. If that be so then there can hardly be any discovery. Furthermore, the articles were lying in the open space not concealed at the spot accessible to all the people, and thus could not be said to be in the exclusive knowledge of the accused alone much less of his authorship. If that be so then there can hardly be any discovery. The other inference equally available under the circumstances is that if the Police Officers are expected to be deligent in the investigation then they must have searched the vicinity and that if they had not discovered any incriminating articles then these three articles were not really lying on the spot though those were claimed to have been noticed on 22nd April. Both these inferences are equally inconvenient for the prosecution. It is also worth noting that as per the First Information Report Exhibit 7 given by father Bhiva immediately after the incident there is a positive reflection in the document that the daughter Sagri was wearing black underpant when she left the hut at about 11 a.m. on that day. That recital is express. It thus contains two parts viz., that it was a regular underpant and father admits as according to him, normally when Sagri used to go out she used to wear the underpant as undergarment and never used to wrap piece of cloth around the waist. However, said underpant was of black colour. The father also admits that when Sagri used to go out she was wearing black underpant. Thus the substantive evidence as well as corroborative evidence of complaint are consistent with each other. Even then we find that no black underpant was found and the piece of cloth which was found was of white colour. 29 The accused then led the panchas and police to his room which is located in servants quarters in the vicinity. As per the evidence as disclosed through the documents and the evidence of panch and P.I. Patil the room in question was open and it was not locked. Further these articles were not concealed as such but were lying openly. It is also an accepted position that both these apparels viz., lungi and chaddi were kept hanging on a string so that any one could notice the existence. It is also worth noting that this string was tied in the verandah or passage of the rooms which were occupied by different occupants. It is also an accepted position that both these apparels viz., lungi and chaddi were kept hanging on a string so that any one could notice the existence. It is also worth noting that this string was tied in the verandah or passage of the rooms which were occupied by different occupants. Consequently, therefore, Shri Walawalkar the learned Counsel, is justified in assailing this evidence as being utterly incredible. According to him, in the first instance, these articles were found so openly and further those were kept hanging on the string which is indicative of the fact that they must have been washed several times and kept for drying. If the accused perpetrated the crime and knew that these articles were kept in his house and had knowledge that the police were investigating, his first reaction and impulse would have been to do away with the articles or to wipe out the stains. The accused did nothing of that type. We have already discussed the order shade of the evidence and its impact on account of the articles not being kept concealed but were kept in open, the passage being common and thus accessible to various persons and thus not being in exclusive control and possession of the accused as also doubtful nature of evidence about the ownership of these articles. All this apart, even assuming otherwise, still the evidence has its own limitation with the capacity as corroborative evidence and cannot create a conclusive and clinching circumstance against the accused. 30. In view of this apparent infirmity, the evidence of Rustom Patel (P.W. 4) does not advance the prosecution case and again make the evidence unacceptable which on it own merits otherwise is thoroughly unacceptable and was of dubious character. P.W. 4 Patel has stated that the accused made certain statements that he would show a place and stone and he would also show lungi and chaddi. Significantly he does not refer to the accused expressing willingness to discover piece of cloth and cloth bag inasmuch as he refers only to the stone and his own lungi and chaddi. He then refers to the two discoveries from two different spots made by the accused. This witnesses is working as Manager in a stable. Requisitioning of services of this witness also appears to have been not accidental. He then refers to the two discoveries from two different spots made by the accused. This witnesses is working as Manager in a stable. Requisitioning of services of this witness also appears to have been not accidental. The witness admits that he resides at close distance from the police station and on that day a Police Constable had gone to the stable and called him. He knows that constable. Merely on the direction of Police Constable without making any enquiry he just walked with him. He admits that stone was kept hardly few feet away from the Kumbhali tree and was not embeded in the earth. The accused resides, according to him, in the servants' chawl and the clothes were hanging in the passage on string and this passage was common one. Shri Walawalkar, the learned Counsel, cannot be said to be unjustified when he submits that after a significant lull from 18th April till 22nd the events occurred swiftly on 22nd and that too within a short span of couple of hours inasmuch as P.I. Patil went to jungle area at about 2 p.m. and when entire panchnama about both was over at about 5.15 p.m. Shri Gangakhedkar, the learned Public Prosecutor no doubt endeavoured to rely on this circumstance to suggest that investigation was in progress atleast on 22nd. This is no doubt an ostensibly refreshing feature that it was so prompt on 22nd which in contrast was extremely lethargic till that day. According to Shri Walawalkar, the learned Counsel, all these features happening in quick succession is again a pointer running counter to the credibility indicates that the entire evidence is of dubious nature. As stated, going of P.I. Patil to the jungle area on 22nd April after the evening of 18th April in extremely problematic and his explanation which motivated his going there, can hardly be accepted. As stated, it was too much of a coincidence that the accused also had a thought of going to the same area precisely at the same point of time. The other remarkable feature is that it is only because of happening of that event and essentially because of presence of the accused in that area on 22nd April that further event of recording panchnama could occur. The other remarkable feature is that it is only because of happening of that event and essentially because of presence of the accused in that area on 22nd April that further event of recording panchnama could occur. As the other side of the coin, it follows as a logical corollary that if per chance accused was not traced in that area and if there was no discovery on 22nd April then P.I. Patil would have exhibited the same lethargy in not recording the panchnama. This in our opinion is a strong pointer running counter to the prosecution case. In view of these serious infirmities which are apparent and manifest on record it is unnecessary to have a further probe on other items. It follows as a logical corollary that once the foundation of alleged discovery has got to be discarded as being wholly unacceptable then the second part in that category arising out of the report of the Chemical Analyser regarding existence of blood stains and blood group would obviously pale in the back ground as that by itself cannot connect the accused with the crime. In other words, if the authorship of discovery and discovery of articles themselves are not established by good, and reliable evidence then some articles allegedly collected by the Investigating agency bearing blood group as that of the deceased and as having semen stains of different blood group of the accused can hardly carry the prosecution case further. Even otherwise existence of few blood stains of different blood group could be explained on various theories. Even assuming otherwise, this cannot be said to be such a conclusive circumstance of primary importance. Inference is so obvious that no further comments are necessary though as stated earlier, the learned trial Judge has adopted a reverse position when he concentrated on the report of the Chemical Analyser as first item and thereafter he considered the question of alleged discovery. Inference is so obvious that no further comments are necessary though as stated earlier, the learned trial Judge has adopted a reverse position when he concentrated on the report of the Chemical Analyser as first item and thereafter he considered the question of alleged discovery. Shri Walawalkar, the learned Counsel, cannot be said to be wholly unjustified when he submits that it would not be proper in such a case to merely discard some items of evidence if those are found to be unacceptable on merits because discarding of some of the items if it is product of utterly dubious character of investigation then it must have an adverse impact on the credibility of the other evidence also more so when all the items of evidence unfolded at the trial are the product of the same investigation. He, therefore, contends that if the evidence of the said witnesses Kumar and Dilip is found to be absolutely unworthy of credence then the fact that these witnesses have been procured by the same Investigating Officer would have an adverse impact on the other evidence as well including the alleged discovery under section 27 of the Evidence Act. Since we have discarded the evidence on their own merits this aspect is not of much importance though it cannot be said to be irrelevant. 31. As stated, the prosecution also sought to rely on two items which comparatively speaking are of minor significance. The first is that Dr. Kiranji (P.W. 11) examined the accused on 23rd April, 1984 and he noticed an old scar on the neck right side and also on the right hand and the age was about 3 to 4 days. The witness accept that this could have been caused by scratching by finger nail. He however, accepted in examination-in-chief itself that such an injury could be caused when a person moves in that jungle. He further accepted that the injury could have been caused anytime in between 18th and subsequent thereto and thus not necessarily on the 18th itself. This was comparatively a very superficial and negligible injury and could have been caused by several other reasons and not necessarily by one as suggested by the prosecution. Even the age of the injury does not fix positively the time. This was comparatively a very superficial and negligible injury and could have been caused by several other reasons and not necessarily by one as suggested by the prosecution. Even the age of the injury does not fix positively the time. Under the circumstances not much importance can be attached to this aspect and this has also not been rightly pressed into service by the prosecution. The prosecution then sought to rely on the fact that the accused was gainfully employed and he remained absent on the second shift on the 18th and thereafter on 19th onwards. Shri Patil (P.W. 15) has referred to this aspect. In our opinion, this circumstance even accepted can hardly have any sinister implication whereas on the evidence of witness, absence of accused at that time cannot be said to be unusual phenomena and accused accepts that he was away for some domestic work. This aspect is also not of much importance and it is also not rightly pressed into service. 32. This is the entire evidence that has been led by the prosecution to substantiate their case against the accused. We have considered each and every item in necessary details since we are obliged to do that on account of utter deficiency in the judgment of the trial Judge. The analysis would firmly establish that all requirements about the merits of the evidence to be good, reliable, credible, acceptable and adequate enough are blissfully missing in the instant case. The necessity to have a detailed discussion further becomes apparent because the evidence led by the prosecution was entirely of circumstantial nature. Further more, the evidence which was sought to be adduced also could not satisfy the test for accepting the circumstantial evidence which is required to be of a conclusive character and tendency from which there could be no escape from the only inference of guilt against the accused. The defence contention in that behalf cannot be said to be unjustified. However, the defence would succeed on the main plank about the evidence not inspiring any degree of confidence and thus being thoroughly unacceptable. Consequently, therefore, no conviction could be recorded against the appellant accused on any count since all the three counts are integrated together. 33. The defence contention in that behalf cannot be said to be unjustified. However, the defence would succeed on the main plank about the evidence not inspiring any degree of confidence and thus being thoroughly unacceptable. Consequently, therefore, no conviction could be recorded against the appellant accused on any count since all the three counts are integrated together. 33. Though the quantum of sentence would obviously loose its relevance once the accused is being exonerated of all the charges, still we may incidentally observe that the learned Judge's findings and reasons in that field which persuaded him to inflict extreme penalty of death on the appellant would obviously be correct and proper and we would have no difficulty to endorse the same if the offence was established. Naked brutality and the ghastly nature of the offence is apparent, when a young child was mercilessly subjected by someone for satisfying his sexual lust severely damaging the delicate parts and not being satisfied, the perpetrator, whosoever may be, indulged in further brutality of smashing her nose and face and along with it mutilated all human values. Infliction of the capital sentence therefore, would have been fully justified on the basis of well recognised principles and guide-lines. This as stated, is only incidental and becomes more academic as it is not strictly relevant in this proceeding. This entire consideration looses its relevance and significance since the accused is being exonerated on merits of all the charges, though it would have been better and more desirable if the learned trial Judge had instead of considering in such details the quantum of sentence which in the instant case could offer no difficulty, addressed himself and concentrated more on the merits of the evidence and that too not in such a casual and disproportionately cryptic manner in such a case of serious dimensions where the offence is visited with the extreme penalty and the said prominent deficiency hardly does credit to any judicial forum. 34. The net result of this analysis is that the reference made by the learned trial Judge will have to be rejected while the appeal filed by the accused will have to be allowed in its entirely. 35. Confirmation Case No. 2 of 1985 Reference made by the learned trial Judge for confirmation of the capital sentence is rejected. Criminal Appeal No. 594 of 1985 Appeal filed by the appellant-accused is allowed. 35. Confirmation Case No. 2 of 1985 Reference made by the learned trial Judge for confirmation of the capital sentence is rejected. Criminal Appeal No. 594 of 1985 Appeal filed by the appellant-accused is allowed. The order of conviction and sentence recorded by the learned trial Judge against him is set aside. The appellant-accused is acquitted of all the charges levelled against him and he is directed to be released forthwith, if not required for any other purpose. Appeal allowed. -----