H. C. MITAL, J. Both these appeals arise from a common judgment dated 13-2-1985 passed by Sri B. Lal, Additional Sessions Judge, Agra in Sessions Trial No. 218 of 1983 convicting both the appellants, under Section 376 and further convicting Allahabad under Section 302 and Bhola under Sec tion 302 read with Section 114, IPC but sentencing both of them for each offence to file imprisonment. 2. The prosecution case in brief is that the victim Smt. Meenu Dadlani, a young lady, was daughter-in- law of Sri J. K. Dadlani (P. W. 8) and had come to Jhansi at her father-in-law place to deliver her child. When the child had become about four-five months old on 17-3-1983 Sri J. K. Dadlani got her boarded on Tamil Nadu express for New Delhi. Sri J. K. Dadlani had informed his daughter Smt. Damyanti Hamrajani (P. W. 2) to receive Meenu Dadlani at New Delhi Railway Station. Smt. Meenu Dadlani had occupied 11 class compartment of the train which happened to be the last compartment of it and there was a brake van between the compartments and the compartment occupied by her. Thus inspite of the fact that the Tamil Nadu Express is a vestibule train, any occupant of the last compartment could not go to any other compartment of the train, nor of the latter could come to the last compartment. 3. Tamil Nadu Express is a super-fast train and after Thansi its stoppage is at New Delhi. It does not stop even at big stations like Qwalior, Agra and Mathura. On 17-3-1983 Tamil Nadu Express arrived at Jhansi Station at 10. 10 a. m. and left at 10. 35 a. m. Normally stoppage of that train was fifteen minutes at Jhansi but it stopped for tan minutes more as a Pablic Way Inspector had also boarded the train because the track was bsing re paired in between Karari and Datia Stations. The train reached Karari station at about 10. 45 a. m. and it stopped so that the Public Way Inspector could get down and thereafter it started from Karari at 11. 05 a. m. and then in the way it further stopped due to repairs in the track for a few minutes. 4. According to the prosecution when Smt. Meenu Dadlani boarded the compartment there was only one young lad of about 13 years and the compartment was otherwise vacant. 05 a. m. and then in the way it further stopped due to repairs in the track for a few minutes. 4. According to the prosecution when Smt. Meenu Dadlani boarded the compartment there was only one young lad of about 13 years and the compartment was otherwise vacant. However, when it stopped at Karari, three miscreants including Bhola appellant came in the compartment and after sometime when the train again slowed down and stopped, Akhilesh Kumar appellant also entered the compartmant. In the way they on seeing Meenu Dadlani alone in the compartment raped her and killed her and also looted her valuables. After sometime when the train again slowed down in between Sank and Morena stations due to some caution, appellant Bhola and bis two companions got down while Akhiiesh Kumar could not get down there. The train thereafter sloped at the outer singal of Agra Cantt for want of clearances. Akhilesh Kumar got down there from the compartment and while he was crossing the lines, Sri Jagdish Chand Sachdeva (P. W. 6) guard of the trian, accosted him why he was getting down there, called him and with the help of the gang men who were working there, he was brought be fore the guard. The guard noted several abrasions on his face, found him very nervous. On enquiry. Akhilesh Kumar, told him that an unconscious lady was lying in the compartment. Immediately thereafter Milin D. Patil (P. W. 10) the young lad, who was travelling m that compartment from Jhansi also got down and told the guard Sri Jagdish Chand Sachdeva that Akhilesh and others had raped the lady and she was lying naked, uaconsicous and tied in the compartment. The guard then noted the unconscious lady lying naked and tied. He then informed the driver of the train on phone as the clearance of the train had been given not to start it and called the Trian Conductor Sri Mahesh Prasad Goswami (P. W. 14) and Sri Rajlingam Kuncaraswami, Trian Superintendent and along with them carried both Akilesh Kumar, the appellant and Milin D. Patil (P. W. 1) in his cabin. In the cabin he also noted a Potli with Akilesh about which the latter said contained some articles of the lady. The guard also informed the driver to start the trian but to stop it at Agra Cantt. In the cabin he also noted a Potli with Akilesh about which the latter said contained some articles of the lady. The guard also informed the driver to start the trian but to stop it at Agra Cantt. There the guard alongwith Sri Mahesh Prasad Goswami (P. W. 14) also informed the R. P. F. Inspector, Sri Mehtrotra who also came there, Dr. Ashok Shukla (P. W. 5) also arrived and declared the lady to be dead. The four-five months child of the lady was also lying on the berth. Fortunately Smt. Chaudnary, M, P. and one another M. P. were also travelling in the same tram. Smt. Usha Chaudhary having come to know about the incident came to that compartment and took charge of the child. She also broke her journey ac Agra, so that she could look after the child till his relations arrived. Sri Sachdeva then alongwitii Akiiesh, Milin, Goswami and Mehrotra R. P. F. Inspector went to the police station G. R. P. and lodged the F. I. R. (Ex. ka 2) at 3. 30 p. m. 5. Gorey Lal (P. W. 9) was Deputy Station Superintendent, his duty was to check the passing of the Tamil Nadu Express. When he found that the train had stopped there, he enquired from the driver of the train why he had stopped the train then he was told by the driver that the Guard had informed him that a body was lying in the compartment and, therefore, on his instructions he had stopped the train, Gorey Lal (P. W. 9) then went to his office and informed the G. R. P. Police Station on phone about the body of a lady lying in the compartment and on receipt of it an entry was made in General Diary and Inspector, Sheo Kumar Tiwari (P. W. 24) left for the platform but when he arried at the platform, he found that Sri Sachdeva had already gone with appellant Akhilesh Kumar and the witness Milin D. Patil to the G. R. P. Police Station. He got the com partment disconnected from the train and asked the Station Master to detain the guard and conductor of the train at Agra for interroga tion. He then went back to Police Station G. R. P. and there he found Sri Sachadeva Guard, appellant Akhilesh, witness Milm Patil and others. He got the com partment disconnected from the train and asked the Station Master to detain the guard and conductor of the train at Agra for interroga tion. He then went back to Police Station G. R. P. and there he found Sri Sachadeva Guard, appellant Akhilesh, witness Milm Patil and others. On the basis of the F. I. R of Sri Sachdeva guard the case was registeted. Sri Sacheva also handed over to him the two gold ear rings, two pieces of black sattan cloth and a phial of perfume of the deceased which the appellant Akhilesh had with him and told the guard belonged to the deceased lady. S. I. Tiwari then took in his possession underwear of the appellant Akhilesh and sent him for medical examination. He sent for a photographer and returned to the station at the compartment wherein the deceased was lying. The photographer (P. W. 1) Harpal Singh took the photographs of the deceased and the child Ex. 1 to 3. S. I. Tiwari took in his possession the two pieces of rope (Ex. 16 and 17) by which hands and feet of the deceased were tied through memo (Ex. ka 25 ). He also seized underwear Ex. 18 of the deceased through Memo Ex. ka 37. He also prepared inquest report Ex. ka 47 of the deceased and with necessary papers sent the same in sealed condition for post mortem. He also seized the blood- stained floor alter removing it from the compart ment and also the articles of the deceased lying there. He also prepared a s,ite plan (Ex. ka 53) of the compartment. He found ticket of the deceased from Jhansi to Delhi in her hand bag and then sent messages to Jhansi and Delhi through Station Superintendent. 6. P. W. 23 Raja Singh was S. O. at G. R. P. Cantt. Agra. He was out of Station when the report was lodged. He returned on 19-3-1983 and then took over the investigation from S. 1. Tiwari P. W. 24. He searched for accused Bhola and succeeded in apprehending him on 25-3-1983 at Morena Station at the pointing out of Milin D. Patil (P. W. 10) when he had taken for investigation. Bhola was sent for medical examination and then he took him on police remand. Tiwari P. W. 24. He searched for accused Bhola and succeeded in apprehending him on 25-3-1983 at Morena Station at the pointing out of Milin D. Patil (P. W. 10) when he had taken for investigation. Bhola was sent for medical examination and then he took him on police remand. Thereafter on completion of the investigation on 13 5-1983 he submitted charge-sheet against both the appellants. The other miscreants could not be traced. 7. At the trial both the appellants were charged uuder Section 376, 394 and 302,ipc. Accused Bhola was, however, charged under Section 302, IPC. read with Section 114, IPC. Both pleaded not guilty and claimed to be tried. 8. To prove its case the prosecution in all examined 24 witnesses, of when Smt. Damyanti Hemrajani (P. W, 2) is the sister-in-law of the deceased ; Smt. Gyani Bai (P. W. 7) is the mother-m-law and J. K, Dadlani (P. W. 8) is father-in-law of the deceased. Smt. Gyani Bai (P. W. 7) and J. K, Dadlani (P. W. 8) identified the articles of the deceased which were recovered from the possession oi the appellant Akiksh Kumar at the test parade conducted by Sri A. P. Srivastava, (P. W. il) Executive Magistrate, Agra. Sri J. K. Dadlani (P. W. 8) has also deposed that he got her daughter-in-law Meenu Dadlani boarded m Tamil Nadu Express on 17-3-1983 and that it was the last compartment of the train and in that compartment only a lad of 12 yeirs was present. He also identified Milin D. Patil (P. W. 10) to be the young lad who was in the compartment. 9. Dr S. P. Misra (P. W. 4) had examined the injuries of appellant Akhilesh Kumar. On 17-3-1983 at 10 p. m. and found the following injuries on his person as noted in the injury report (Ex. ka 19) prepared by him. Injuries: (1) Multiple abrasions 9 cm x 4 cm on the left said face 2. 5 cm in front of left ear smallest is. 5 cm x. 2 cm to largest 2. 5 cm x. 2 cm They were nearly obliquely vertical outward to inward, Soft brown scab started opening over them. (2) Multiple abrasion 10 cm x 7 cm on the right side face smallest. 3 cm x. 2 cm to largest 3 cm x. 2 cm. 5 cm x. 2 cm to largest 2. 5 cm x. 2 cm They were nearly obliquely vertical outward to inward, Soft brown scab started opening over them. (2) Multiple abrasion 10 cm x 7 cm on the right side face smallest. 3 cm x. 2 cm to largest 3 cm x. 2 cm. They were nearly obliquely vertical from outward to inward of face. See injury No. 1. (3) Multiple abrasion 6 cm x 2 cm on the front of upper part of necfc 7 cm above superasternal notch smallest. 5 cm x. 2 cm to 2 cm x. 2 cm (largest ). (4) Abrasion 1. 5 cm x 1. 5 cm on the front of lower part of right knee rest as injury No. 1. (5) Abrasion. 5 cm x. 5 cm on the front of left fcnee middle part, rest as injury No. 1. (6) Two abrasions 5 cm apart on the back and outer of right arm just above elbow is. 5 cm x. 2 cm to largest lower. 75 cm x. 2 cm rest as injury No. 1 10. He has further noted that no injury was found in the personal region over penis, scrotum and over the glanse. No visible semen stains seen over perenium and inner side of the thies, scrotum etc. The pubic hairs were moist and sticky which were shaved and sealed and preserved for semen examination pathalogically. Smegma was absent on perpuce and after re traction of perpuce there was an abrasion o. 5 cm x o. 3 cm over vertical side of glanse right side,. 5 cm right outer to root of franulum. 11. In the opinion of the doctor the injuries were simple and caused by friction. They could have been caused on 17-3-1983 by Dr. S. P. Misra (P. W. 4) in the noon at about 11-12 on that date. He totally rejected the defence evidence that the injuries could be caused due to fall on the railway track. 12. Dr. S. K. Kharey, P. W. 15, had done the autopsy on the dead body of Meenu Dadlani on 18-3-1983 at 2 p m. and had noted the following injuries (vide post mortem report Ex. ka 38 ). External Examination Rigor mortis was present in the lower limbs but had passed off from upper limbs. Decomposition was not present. Both the eyes were half opened and congested. ka 38 ). External Examination Rigor mortis was present in the lower limbs but had passed off from upper limbs. Decomposition was not present. Both the eyes were half opened and congested. Pupil were dialated. Face was cynosod, lips below were cynosed. Tongue tipe was caught in between teeth. Blood stained froth was coming out from both the nostrile and mouth. Vagina was sticky. Fluid in waginal orifices was present, it was taken and sent for examination. Anti mortem Injuries: (1) Abrasion 1/2" x 1/2" left side of the face 1/2" away from outer qentring of left eye. (2) Multiple abrasions in an area of 1 1/2" x 1" on the left side of face 1" in front of left ear, size varied from 2/10" x 2/10" to 3/10" x 1/10". (3) Abrasion 3/10" x 2/10" 1/2" outer to the right nose. (4) Contusion 1" x 1/2" just outer the right, eye brow. (5) Abraded contusion 5" situated upper part of the front of the neck lying horizontally width the neck 1" in the centre to 3/10" at the outer end. (6) Three abraded contusions in an area of 4 1/2" x 1 1/2 size varied from 1/2" x 1/2" to 11/2 x 1/2", 1/2" below the injury No. 5. (7) Two abraded contusions each 11/2x 4 1/0" on the either side of the suprasternal netch. (8) Multiple abrasions in an area of 1" x 1" on the top of right shoulder. (9) Multiple abrasions in an area of 3" x l 1/2" on the back of right, lore-arm lower 1/3".(10) Multiple abrasions on right middle finger and index finger distal on back size varying from 3/10" x 2/10" to 1/10" x 1/10". (11) Three abrasions from 3/10" x 4/10" to 3/10" x 1/10" on the front of the left arm upper part. (12) Three abrasions from 1/2" x 1/2" to 1/2" x 1/2" around left elbow. (13) Multiple abrasions on dersal of the left hand little index, thumb and palmer aspect of rig finger. Size from 2/10" x 2/10" to 4/10" x 5/10". Internal Examination : Muscle of neck were lacerated and extra vasation of blood was present in the scalp. Brain membra nee were congested. Both pleura and lungs were congested. On right lung there were patches of petechial haematoma Tongue was caught in between teeth. Stomach contained about 6 oz semi digested feed. Small intestines were empty. Internal Examination : Muscle of neck were lacerated and extra vasation of blood was present in the scalp. Brain membra nee were congested. Both pleura and lungs were congested. On right lung there were patches of petechial haematoma Tongue was caught in between teeth. Stomach contained about 6 oz semi digested feed. Small intestines were empty. Kidneys were congested. Death was caused due to asphyxia as result of strangulation. 13. Dr. Khare had also taken the articles and clothes from the dead body, put them in a sealed cover and sent them through police constable to S. S. P. Agra. 14. Dr. R. L. Kapoor (P. W. 16) Senior Pathologist examined the vaginal smear and noted that it contained dead sperms. Bichemical test was positive for the presence of semen. 15. Dr. Sudhir Chandra (P. W. 13) had examined appellant Bhola on 26-3-1983 and had noted the following injuries on his person vide injury report Ex. ka 3. Injuries: (1) Abrasion 2 cm x. 5 cm on the right side knee lower part. (2) Old healed abrasions (crust is separated leaving behind the red dish skin ). (a) 0. 5 cm x 0. 2 cm over bridge of nose 1. 5 cm below the root of nose (b) (i) cm x. 2 cm 0. 75 cm above the (a) and (c) is 0. 7 cm, x 0. 3 cm just above the (b) but below the root of nose. (3) Abrasion 1 cm x. 75 cm over back of left elbow. 16. In the opinion of Dr. Chandra all the injuries were simple and were caused by friction. Injuries Nos. 1 and 3 were about 2-3 days old while injuries No. 4 was about 10 to 15 days old. 17. Dr. F. M. Pachanna (P. W. 12) was Medical Officer of the District Jail and had sent both the appellants for taking their blood for rest to the district hospital. 18. Radha Mohan (P. W. 17) was the contractor and had brought similar goods to be mixed with the articles of the deceased recovered from the possession of Akhilesh Kumar at the time of test parade. 18. Radha Mohan (P. W. 17) was the contractor and had brought similar goods to be mixed with the articles of the deceased recovered from the possession of Akhilesh Kumar at the time of test parade. 19 Millin D. Patil (P. W. 10) has corroborated the prosecution story that he had boarded the train at Jhansi and that Meenu Dadlani, deceased had also boarded that compartment and there was no other passenger that at Karan Station when the train stopped Bhola along with two persons came to the compartment and after sometime when the train again stopped Akhliesh Kumar also entered the compartment; that when the train was running Smt Meenu Dadlani asked the miscreants who had taken seats opposite to her to sit on some other seat as she intended to feed her child. Thereupon the miscreants started misbehaving with her and when she resisted, they forcibly dragged her down from the seat on the floor of the compartment made her naked, committed rape. Bhola also asked Akhilesh to enjoy her while appellant Akhilesh was committing rape injuries on his face and body were caused; that at the instance of accused Bhola Akhliesh Kumar had throttled the deceased and before leaving he had tied her legs and hands; that Bhola and his two companions had got down from the train earlier when the train slowed down before Morena and that when at the outer singal of Aera Cantt. the tram stopped, Akhilesh also got down and when he was crossine the track he was stopped by Sri Sachdeva, the guard. He himself then also got down and informed the guard that Akhilesh and his companions had raped, looted and killed the lady victim lying naked, unconscious and tied in the compartment. Akhilesh was then detained and at Agra Station he was also taken to G. R. P. alongwith Akhilesh. 20. Raja Singh (P. W. 23) Vigilence Inspector and Shiv Kumar Tiwar (P. W. 24) are the two investigating Of Bcer and have deposed about the variou, steps taken by them during the course of the investigation. 21. The remaining are formal witnesses. The prosecution also tendered in evidence Ex. ka 54 and ka 55 reports of the Chemical Examiner and the Serologist. 22. 21. The remaining are formal witnesses. The prosecution also tendered in evidence Ex. ka 54 and ka 55 reports of the Chemical Examiner and the Serologist. 22. On the other accused Akhilesh examined D. W. 1 Har Charan Lal Sharma in defence, who deposed that Akhilesh had got down from Jhans Express on 17-3-1983 at 6. p. m. and then he was apprehended by the police. 23. The 1cearned trial Judge believed the prosecution evidence and dis believed the defence version hence convicted and sentenced them as stated above. On being aggrieved they have preferred this appeal. 24. On behalf of the appellants it was urged that there was no reliable evidence to sustain their convictions. Before assessing the prosecution evidence against each of the appellants separately, we think it proper to first consider the prosecution evidence regarding the incident itself. 25. In brief the case is that while Smt. Meenu Dadlani, the victim was travelling in Tamil Nadu Express on 17-3-1983 in between Jhansi Agra Cantt. she was found dead. It was also found that she had been raped and her articles were removed from there. 26. The fact that Smt. Meenu Dadlani was travelling on that day has been proved by P. W. 8, J. K. Dadlani, her father-in-law who got her boarded at Jhansi in Tamil Nadu Express. That apart, her dead body was found in the compartment at Agra Cantt. has been proved by P. W. 6, Sachdeva, the Guard. P. W. 14 Goswami the Conductor of the train and S. I. S K, Tiwari, P. W. 26 besides Milin D. Patil P. W. 10. She was a bonafide passenger is further corroborated by the recovery of tickets Exs. 19 and 20 recovered through recovery Memo Ex. ka 28 by S. I. S. K. Tiwari, P. W. 25. 27. The fact that she was raped and her death was homicidal due to strangulation has been proved by Dr. S. K. Khare, P. W. 15 who had done autopsy on her dead body vide the post mortem report discussed above. That apart, there is also report Ex. ka 42 of Dr. R. L. Kapoor P. W. 16 the Patho logist, that on the examination of her vaginal smear dead sperms were found and Biochemical test positive presence of semen was noted. That apart, there is also report Ex. ka 42 of Dr. R. L. Kapoor P. W. 16 the Patho logist, that on the examination of her vaginal smear dead sperms were found and Biochemical test positive presence of semen was noted. The fact that she had given birth to a child 4-5 months back at Jhansi as her husband was in Assam being an officer in Tea Gardens, has been proved by P. W. 2 Smt. Damyanti Hemarajan. P. W. 7 Smt. Gyan Bai Dadlani and P. W. 8 Sri Dadlani. These facts have also neither been denied nor disputed on behalf of the defence. 28. From the evidence of Smt. and Sri Dadlani P. W. 7 and P. W. 8 it is further proved that the victim was bearing and carrying ornaments and various articles out of which a few as contained in the recovery memo Ex. ka 29 were only found in the compartment. Thus the fact that her ornaments and other articles were got stolen also stands proved beyond doubt. 29. Now the main question which arises for decision is, whether these two appellants had committed rape and killed her. 30. We would first take up the case of Bhola appellant. Against him there is solitary evidence of Milin D. Patil PW 10. He did not know the appellant nor the appellant was caught while getting down from the compart ment. No incriminating article was also recovered from his possession. However, on behalf of the prosecution it was pointed out that the injuries which were found on his person corroborated the evidence of Milin (PW 10) and according to the test of nails of the deceased dried blood of Group B was found and the blood of accused Bhola was also of the same Group B. It is no doubt true that according to Ex. ka 54 and ka 55 on articles marked No. 10 nails of the deceased and 14 blood of Bhola blood of Group B was found by the Serologist. However, the. same cannot be a clinching circumstances against appellant Bhola. The blood group Bean be found in many persons and, therefore, it can be coincidence also that blood of accused Bhola was also of Group B as was found in the nails of the deceased. 31. Bhola was sent for medical examination on 26-3-1983. According to the testimony of Dr. same cannot be a clinching circumstances against appellant Bhola. The blood group Bean be found in many persons and, therefore, it can be coincidence also that blood of accused Bhola was also of Group B as was found in the nails of the deceased. 31. Bhola was sent for medical examination on 26-3-1983. According to the testimony of Dr. Sudhir Chandra (PW 13) he had examined him at 4. 30 p m. vide injury report (Ex. ka 37) and noted the following injuries on his person: (1) A brasion 2 cm x 5 cm over right side knee lower part. (2) Old healed abrasion (crust is separated leaving behind the redish skin)- (a) 0. 5 cm x 0. 2 cm over bridge of noss 1. 5 cm below the root of nose. (b) 1 cm x 0. 2 cm. , 0. 75 cm x above injury No. 1. (c) 0. 7 cm x 3 cm just above the injury No. (b) just below the root of nose. (3) Abrasion 1 cm x 5. 7 cm over back of left elbow joint laterally. 32. In the opinion of Dr. Sudhir Chandra all the injuries were simple and could be caused by friction. Injuries Nos. 1 and 3 were about 2-3 days old while injury No. 2 was 10 to 15 days old. 33. The above nature of the injuries and the time as given by Dr. Sudhir Chandra does uot corroborate the prosecution version that the injuries were caused when Smt. Meenu Dadlani grappled with the appellant while he com mitted rape with her on 17-3-1983 i. e. nine days prior to his medical examina tion. Injuries Nos. 1 and 3 prima facie could not have been caused on 17th March as they were found to be only 2 to 3 da s old. They could have been caused only in between 23rd and 24th of March, 1983. Of course injury No. 2 could have been caused on 17th March, 1983. That apart, the manner in which the accused is alleged to have been apprehended on 25th March, 1983 from Morena station at the pointing out of PW 10 Milin D. Patil when the appel lant was trying to go out of the station is also not free from suspicion. Accord ing to the prosecution name of this appellant Bhola came to light after the interrogation of appellant Akhilesh. Accord ing to the prosecution name of this appellant Bhola came to light after the interrogation of appellant Akhilesh. According to PW 25, S. I. , S. K. Tewari Akhilesh was interrogated by him on 18th March, 1983 and not on 17th March, 1983. However in the G. D. after the registration of the case an 17th March, 1983 itself at 3. 30 p. m. at the G. R. P. Station, Agra Cantt. it was mentioned by S. I. S. K. Tewari himself, the Investigating Officer, that accused Akhiles had given out the name of Bhola as a co-accused, besides two others whose names he did not know. This entry regarding the name of Bhola in the G. D. even prior to the examination of accused Akhilesh under Section 161 Cr. P. C. on 17-3- 1983 shows that even prior to the recording of the statement of accused Akhilesh the I. O. suspected Bhola to be one of the miscreants. From the cross examination of Milin D. Patil (P. W. 10) and Sri S. K Tewari (P. W. 25) the I. O. as well as Inspector Raja Singh (P. W. 24) the subsquent I. O. , it is not certain as to where Milin D. Patil remained after 18-3-1983 and why he was, if at all, permitted to leave for Delhi when the Investigation Agency considered it necessary to arrest Bhola at his pointing out or to take him to the various places of occurrence. No doubt, the circumstances of the case do create a strong suspicion about the participation of appellant Bhola, but suspicion alone, however, strong cannot take the place of proof and, therefore, there is no other alternative but to give him the benefit of doubt. 34. As regards appellant Akhilesh there is evidence of P. W. 6 G. C. Sachdeva, the Guard of the trian that when the trian stopped at the outer signal of Agra Cantt. he saw the said appellant after getting down from the compart ment, crossing over the track then he get him stopped with the help of gang men working there and then the appellant told him that an unconscious lady was lying in the compartment and Sri Sachdeva also noted injuries on his person. he saw the said appellant after getting down from the compart ment, crossing over the track then he get him stopped with the help of gang men working there and then the appellant told him that an unconscious lady was lying in the compartment and Sri Sachdeva also noted injuries on his person. Immediately Milin D. Patil (P. W. 10) also got down from that compartment and told Sri Sachdeva that appellant Akhiiesh and others had raped the woman lying in the compartment who was unconscious and they had also taken away her articles. Both of them were then taken into his cabin by the Guard Sri Sachdeva and then he directed the driver on phone train not to start the train unless he was asked to do. He then contacted Sri Goswami (P. W. 14) Conductor-in- charge of the train and also Sri Raj Lingam Kumara Swami, train Superintendent and they went into the compartment and found the young lying almost naked. Her hands were tied. She was unconscious. Her child about 3-4 months old was weeping on the berth. He has also stated that he then asked the driver to start the trian, but to stop at Agra Cantt. as a lady was lying there. In the trian he also noted a potli with appellant Akhilesh. He got it opened and therein he found two ear rings (Ex. 8 and 9) and one phial of scent (Ex 12) and two cloth pieces (Ext. 10 and 11 ). Sri Sachdeva the guard (P. W. 6) has further deposed that the appellant Akhilesh told him that those articles were of the woman lying in the compartment. These articles were subsequently seized at P. S. G. R. P. through recovery memo (Ex. ka 22 ). They were subsequently put up for identification at the test parade c inducted by P. W. 11 Sri A. P. Srivastava, Special Executive Magistrate, who has proved the identification memo (Ex. ka 35) prepared by him at the time of the test parade. The prosecution also examined P. W. 17 Radha Mohan, contractor, who had brought similar articles to be mixed with them. P. W. 21 constable Roop Singh had taken the sealed bundle from Mal khana for test identification. These articles were correctly identified by P. W. 7 Smt. Gyan Dadlani mother-in-law and P. W. 8 Sri J. K. Dadlani, father-in-law of the deceased. P. W. 21 constable Roop Singh had taken the sealed bundle from Mal khana for test identification. These articles were correctly identified by P. W. 7 Smt. Gyan Dadlani mother-in-law and P. W. 8 Sri J. K. Dadlani, father-in-law of the deceased. Both of them have deposed that these articles were of the deceased, that they had sesn the articles with Meenu Dadlani before Meenu Dadlani had left Jhansi and thereafter at the time of the test parade and they had not seen them any where in between. Their testimony regarding the identification prima facie inspires credence and there is nothing in their cross examination which might militate against the veracity of their testimony. The prosecution has, thus, succeeded in establisning beyond doubt that the two ear rings and two pieces of cloth belonging to the deceased were recovered from the possession of appellant Akhilesh immediately after he got down from the compartment and was caught. The appellant has not given any satisfac tory explanation regarding their possession and there is his bald denial only. To both P. W. 7 Smt. Dadlani and P. W. 8 Sri Dadlani it was only suggested that these articles were shown to them prior to the test parade which they have stoutly repelled. 35. That apart, after his arrest appellant Akhilesh was medically examined on 17-3-1983 itself at 10 p. m. by Dr. S. P. Misra (P. W. 4) who was posted as AMO at the district Hospital Agra and he noted as follows in the injury report (Ex. ka 19) then prepared by him : Injuries: 1. Multiple abrasions 9 cm x 4 cm on the left side face 2. 5 cm intront of left ear smallest is. 0 cm x 0. 2 cm to largest 2. 5 cm x 0. 2 cm. They were nearly obliquely vertical outward to inward. Soft brown scab started forming over them. 2. Multiple abrasions 10 cm x 7 cm on the right side face smallest. 3 cm X. 2 cm to largest 3 cm x. 2 cm. They were nearlv obli quely vertical from outward to inward of face. See injury No. (1 ). 3. Multiple abrasions 6 cm x 2 cm on the front of upper part of neck 7 cm above superasternal notch smallest 0. 5 cm x 0. 2 cm. to 2 cm x 2 cm (largest ). 4. Abrasion 1. They were nearlv obli quely vertical from outward to inward of face. See injury No. (1 ). 3. Multiple abrasions 6 cm x 2 cm on the front of upper part of neck 7 cm above superasternal notch smallest 0. 5 cm x 0. 2 cm. to 2 cm x 2 cm (largest ). 4. Abrasion 1. 5 cm x 1. 5 cm on the front of lower part of right knee rest as in injury No. 1. 5. Abiasion. 5 cm x 5 cm on the front of left knee middle part, rest as injury No, 1. 6. Two abrasions. 5 cm apart on the back and outer of right arm just above elbow is. 5 cm x -2 cm to largest lower. 75cm x. 2cm rest as injury No. 1. 36. He has further noted that no injury was found in the personal region over penis, scrotum and over the glans. No visible semen stains seen over perineum and inner side of the thies, scrotum etc. The public hairs were moist and sticky which were shaved and sealed and preserved for semen examination pathologically, Smegma was absent on prepuce and after retrac tion of prepuce there was an abrasion 5 cm x 3 cm over vertical side of glans right side, 0. 5 cm right outer of farulum. 37. In the opinion of the doctor the injuries were simple and caused by friction. They could have been caused on 17-3-1983 by Dr. S. P. Misra (P. W. 4) in the noon at about 11-12 on that date. He totally rejected the defence evidence that the injuries could be caused due to fall on the railway track. 38. Besides the testimony of J. C. Sachdeva (P. W. 6) the Guard there is also testimony of P. W. 14, M. P. Goswami the conductor in charge of the train that he was called by the guard Sri J. C. Sachdeva and on reaching his compartment the guard told him that an unconscious lady was lying there. 38. Besides the testimony of J. C. Sachdeva (P. W. 6) the Guard there is also testimony of P. W. 14, M. P. Goswami the conductor in charge of the train that he was called by the guard Sri J. C. Sachdeva and on reaching his compartment the guard told him that an unconscious lady was lying there. Then along with the Train Superintendent, Raj Lingam Kumara Swami he went to the brake of the guard and there found both appellant Akhilesh and Milin D Patil (P. W. 11) and he also then went to the compartment where that lady was lying unconscious and her goods were also lying scattered and a child baby of the lady was also lying on the berth. That the hands and feet of the lady were also tied. That in his presence also Akhilesh had said that the ear rings, scent and pieces of cloth were of that lady. There is nothing in his cross-examination which might create any doubt about the veracity of his testimony. 39. Lastly, there is direct evidence of P. W. 10 Milin D. Patil, a young lady who was about 15 years of age when his evidence was recorded on 8-12-1983 and 9-12-1983 in the trial court. Occurrence had taken place about 7-8 months before in the month of March, 1973. He has deposed that he had boarded the train, Tamil Nadu Express at Jhansi and after so. no time a lady with a child in her arms also came in that compartment with her articles, that, a gentleman had come and got her seated in the train, that when at the Karari Station the train stopped then three persons including appellant Bhola, entered the compartment; that subsequently when the train stopped after leaving karari, then appellant Akhilesh also came in the compartment. In the way on seeing the lady alone in the compartment, both the appellants started misbehaving with her ; that they forcibly dragged her on the floor of the compartment below the seat, that the lady bad tried her best to release herself from the clutches of appellants but both the appellants and iheir two companions over-powered her ; that first suppellant, Bhola after removing his paint made the lady naked and raped her ; that the other miscreants had held her hands and feet and subsequently the appellant had also raped her; that when appellant Akhilesh was kissing the lady while committing rape she became conscious and with her nails she caused injuries on the face of the appellant Akhilesh, then Akhilesh gave a fist blow on her face and kicked her on her belly and then at the instigation of appellant Bhola he strangulated her and then the miscreants searched the articles of the deceased and removed gold bangles from her hands and a har from her neck; that when the train became slow appellant Bhola and his two companions got down, but Akhilesh could not got down as the train started moving fast, that subsequently Akhilesh tied the hands and feet of the lady ; that Akhilesh had taken the two ear rings, one scent phial and two pieces of cloth of the deceased ; that Akhilesh had also threatened him to keep quiet otherwise he would also be killed. When at the outer signal of Agra Cantt. Station the train stopped, then accused Akhilesh got down and when he was crossing, the guard got him slopped with the help of the gangman working there and then he himself got down from the compartment and narrated the incident to the guard. 40. Veracity of the statement of this witness has been seriously question ed before us, firstly on the ground that he was a child witness; that he was a young lady, could be tutored by the police and that he was also a street urchin and could not give satisfactory answers as to where he was working when he had left Delhi away from his parents to Jhansi; that his ticket was also not checked by the guard or by the Sub-Inspector and there is specific statement of P. W. 14 Mr. Goswami the Conductor of the train that on search of this witness only ten rupees were found and nothing else was found, while according to the witness Milin D. Patil he had about 70-80 rupees which his employer at Jhansi had given him out of which he had purchased a ticket for Jhansi for Rs. 26. Thus according to the witness be should be having alteast about rupees fifty witn him and not Rs. 10 which were found in his possession. That apart, the fact that the witness was permitted to leave Agra Cantt. Station on 18-3-1983 without any instructions was also highly suspicious. No doubt there are various discrepancies in the statement of this witness Milin D. Patil regarding the money which he had received before he left Jhansi and the place where he was working and regarding the circumstances in which he had to leave Delhi for Jhansi. We are conscious also of the fact that where the murder committed is particularly cruel and revolting, it is necessary to examine the evidence with more than ordinary care lest shocking nature of the crime might induce an instictive reaction against a dispassionate judicial scrutiny of the facts and law. However, the discrepancies and error may be given due weight when a doubt arises in support of certain facts alleged by such a witness, but unless the discrepancies go into the root of the matter so as to demolish the entire prosecution story, the proper course is to ignore such discrepancies and errors. A witness may go on adding embellishments in his version perhaps for the fear of his testimony being rejected by the court. The court, however, should not disbelieve the evidence of such witness altogether if his presence at the time and scene of the occurrence cannot be doubted. 41. Regarding the presence of this witness Milin D. Patil at the time and scene of occurrence, there is evidence of wholly independent witness P. W. t Sri J. C. Sachdevat, the guard of the train that this witness also got down from the compartment after he had caught the appellant Akhilesh while he was crossing over the railway track after getting down from the compartment and the witness told him that the appellant had committed rape and looted the lady lying in the compartment. P. W. 14 M. P. Goswami, Conductor of the train has also stated that when the guard brought him to his brake he found the witness there along with appellant Akhilesh. The fact that this witness alongwith appellant Akhilesh was taken to the police station G. R. P. Agra stands further corroborated by the entry in the G. D. at the police station P. W. 8 J. K. Dadlani, father-in-law of the deceased, has also corrobrated that this witness was sitting in the compartment when he got her daughter-in-law, Meena Dadlani boarded the train at Jhansi. We have, therefore, no reason to doubt the fact that this witness did travel in the ill-fated compartment from Jhansi to Agra when the victim Smt. Meenu Dadlani was raped and killed. Therefore, so far as the statement of this witness, that appellant Akhilesh and others had raped the lady and taken away her property, is concerned, should be accepted without any reasonable doubt. 42. To sum up, besides the testimony of P. W. 10 Milin D. Patil an eye witness there is following circumstantial evidence also against the appellant Akhilesh : (1) Scratch marks on the face of Akhilkesh which appear to be caused at the time of the incident. (2) On medical examination besides the injuries smegnaa around the prepuce was not found. (3) His under-wear and pubic hairs were found stained with semen and that; (4) He was apprehended while attemptin to escaped when the train stopped at the outer signal at Agra Cantt. Station. Thus there is very clinching evidence to establish that the appellant, Akhilesh had participated in the crime. 43. In his statement under Section 313, Cr. P. C. Akhilesh simply stated to have been falsely implicated. In defence ha examined D. W. 1 Hari Charan Lal Sharma, who has deposed that he had also gone to the railway station Agra Cantt. on 17-3-1983 at about 5-30 p m. to receive his relation fron Jhelam Express which arrived late at about 6 p. m. then he saw appellant Akhilesh getting down from Jhelam Express and then he was apprehended by the police. Several persons had collected there and they acquired why the appellant was arrested. The police said that he was to be interrrogated. He has made a totally false statement that he purchased a platform ticket for 25 paise only. Several persons had collected there and they acquired why the appellant was arrested. The police said that he was to be interrrogated. He has made a totally false statement that he purchased a platform ticket for 25 paise only. He also admitted his acquittance with the mother of the accused. That apart, no such suggestion was given to S. I. S. R. Tewari or the railway guard Sri J. C. Sachdeva that this appellant was apprehended when he got down from Jhelam Express. He was taken to the police station G, R. P. at 3. 30 p. m. when the F. I. R. was lodged which is corroborated by the entry in the G. D. Sri J. C. Sachdeva the guard (P. W. 6) and Sri M. P. Goswami (P. W. 14), the conductor of the train, could have no earthly reason to falsely implicate the appellant. Hence there is even no semblance of truth in the detence version that he was arrested at 6 p. m. after he got down from the Jhelam Express. 44. As regards the nature of the offence committed by the appellant in view of the medical evidence and testimony of Milin D. Patil (P. W. 10) it is established beyond doubt that the appellant had also committed rape with the deceased. Hence his conviction under Section 37o, I. P. C. has to be confirmed. 45. As regards the conviction under Section 302, I. P. C. prima facie there was no intention of the miscreants to commit the murder. That apart, the fact that according to the testimony of Milin D. Patil (P. W. 1) this appellant had tied the hands and feet of the deceased before leaving the compartment after the other miscreants had already got down is indicative of his fear that lest the lady might regain consciousness and then over power him or got down is indicative of his fear that lest the lady might regain consciousness and then over power him or got him arrested, he tied her hands and feet otherwise any person after having killed a parson would not tie his hand or feet. That appart, it is in evidence of Milin D. Patil that all the four persons had over-powered the deceased. That appart, it is in evidence of Milin D. Patil that all the four persons had over-powered the deceased. It is doubtful that Milin D. Patil P. W. 1 could have watched with minute details the entire occurrence and, therefore, his testimony that the appellant had strangulated the deceased can be accepted with a pinch of salt only particularly when his testimony that this appellant Akhilesh had also kicked the deceased in her belly is not corroborated by any external or internal injuries in the stomach. Moreover he also did not tell Sri Sachdeva, guard that Akhilesh had killed her. It would, therefore, be m the fitness of things to extend him the benefit of doubt regarding the offence of murder under Section 302, I. P. C. and we, therefore, as a matter of precaution, do not hold that the charge under Section 302, I. P. C. has been fully brought home to him. The appellant already stands acquitted under Section 394, I. P. C. and has also not convicted under Section 404, I. P. C. for want of framing of charge on that count and the State has not preferred any appeal against the acquittal. 46. The result, therefore, it that the appeal No. 1554 of 1985 of appel lant Akhilesh is partly allowed. He is found guilty under Section 376, I. P. C. only and not found guilty of the offence under Section 302, I. P. C. Hence his conviction under Section 376, I. P. C. is confirmed but his conviction and sentence under Section 302, I. P. C. are set aside. Considering his young age a sentence of 10 (ten) years R. I. under Section 376, I. P. C. would amply meet the ends of justice. Hence the sentence of life imprisonment is hereby altered to ten (10) years R. I. only. He is in prison and is directed to serve out his sentence. 47. Appeal No. 1778 of 1985 of Bhola appellant is allowed. His conviction and sentence under Section 302 read with 114, I. P. C. and under Section 376, I. P. C. are set aside. He shall be released forthwith if not wanted in any other case. Order accordingly .