JUDGMENT 1. - Appellants Chhitarlal and Banta have been convicted by the Additional Sessions Judge, Baran, by his judgment dated Jan. 18, 88, for offences u/ss. 364, 376/34 and u/s. 302/34, IPC; and for the first two offences, they have been sentenced to rigorous imprisonment for ten years each, with a fine of Rs. 1,000/- for each offence; and to imprisonment for life for the offence u/s. 302/34, IPC, and both of them have come in appeal against their convictions and sentences, to this Court. 2. Girjesh Kumari, a girl aged about 12 years and daughter of Dalchand PW 7, was the victim of the offences. The prosecution case is that the appellants and Ramchandra, non of Chhitarlal appellant No. 1, had Kidnapped Girjesh Kumari in order that she might be murdered, and in furtherance of their common intention they murdered her, after committing rape on her in a field where sugarcane crop was standing. The place of the incident is shown by mark 'B'in the site-plan (Ex P. 3). prepared by the SHO of PS-Kishanganj in District-Kota. The report of the incident was lodged at 1.05 PM on Nov. 5 86, by Dalchand. at PS - Kishanganj, though Memraj PW 2. It was mentioned in the First Information Report (FIR) (Ex.P.l) by D.I hand that at about 7 AM on Nov. 2, 86, his daughter Girjesh Kumari had gone to the well, to look after the crop of 'Rajka'. When Dalchand returned to his house from his field, his wife told him that Girjesh Kumari had gone to the field, and that she had not returned home. Dalchand in search of his daughter went over the field and called his daughter by her name. but, there was no response. Then, when he went towards the bushes, the appellants and Ram Chandra ran away from that place. They had 'Kuntiya' and 'Paraniya' in their hands. Dalchand stepped forward inside the bushes, and found his daughter Girjesh Kumari lying there dead with her underwear opened and loosened. He raised a cry. Thereupon, Arjun Ramkishan and some others came there; and they all took Giresh Kumari to the house of Dalchand. Ramchandra Sharma PW 19 was the SHO, PS-Kishanganj. He reached the place of incident and prepared the site-plan (Ex. P. 3), together with the memo of inspection. He also prepared an inquest-report (Ex. P. 4). He raised a cry. Thereupon, Arjun Ramkishan and some others came there; and they all took Giresh Kumari to the house of Dalchand. Ramchandra Sharma PW 19 was the SHO, PS-Kishanganj. He reached the place of incident and prepared the site-plan (Ex. P. 3), together with the memo of inspection. He also prepared an inquest-report (Ex. P. 4). Post-mortem examination of the dead body of Girjesh Kumari was conducted by a medical-board consisting of Dr. M.M. Singh; Dr. (Mrs.) Urmila Katiyal, and Dr. B.M. Soni of Government Hospital, Baran, Girjesh Kumari had 9 external injuries on her body. There were 5 marks of teeth-bite just over left eye-brow; and 6 teeth-bite marks on the left cheek of the girl. Apart from that, she had 5 incised wounds over left cheek, lateral side of neck, another wound 1" below the above injury another just right to midline of neck and ; and one another 1/2" below it; and there was linear scratch extending to mid-cheek; and one abrasion. According to the Medical Board the death of Girjesh Kumari occurred due to hemorrhagic shock caused by injury on left carteid artery and left Internal Jugalar Vein causing excessive bleeding. It appeared that she (Girjesh Kumari) had been raped before her death. Blood-stains were present over both labia majora, perimum and inner parts of thighs. Hymen was ruptured. Vaginal examination revealed longitudinal tear on the posterior walls, approximately 1/2" long. Two swabs from posterior vaginal fomix were taken for chemical-examination. The clothes which Girjesh Kumari was wearing, were seized by the police. After necessary investigation, a charge-sheet was filed against the appellants in the court of Additional Chief Judicial Magistrate, Baran, who committed the case on Jan 3 87, for trial, to the court of Additional Sessions Judge. Baran. The Additional Sessions Judge, Baran, charged the appellants with offences u/ss. 364, 376, or in the alternative, u/s 302/24/IPC; and u/s. 302, IPC, or in the alternative u/s. 302/34, IPC. Both the appellants pleaded not guilty and claimed to be tried. After trial, the Additional Sessions Judge found both the appellants guilty for the offence mentioned above and sentenced both of them as aforesaid. So far as Ramchandra was concerned, he was charge-sheeted in Children's Court as he was a child. 3. Both the appellants pleaded not guilty and claimed to be tried. After trial, the Additional Sessions Judge found both the appellants guilty for the offence mentioned above and sentenced both of them as aforesaid. So far as Ramchandra was concerned, he was charge-sheeted in Children's Court as he was a child. 3. The Additional Sessions Judge found that Girjesh Kumari was first raped and then murdered, and this finding is based on the evidence of the three doctors constituting the Medical-Board. The motive loading to the crime was held to be that some days before the incident. Roop Narain, brother of Dal Chand, had behaved indecently with the daughter-in-law of Chhitarlal appellant. Chhitarlal behaved indecently Dalchand and made a complaint about to him. Chhittarlal had threatened Dalchand that he would take revenge from him. The Additional Sessions Judge believed the statement of Ghanshyam Dhakar PW 1 that he had seen the appellants going towards Aklera, from the field of Dalchand, Gajanand Dhakar PW 10 also deposed that he had seen the appellants running away from the field of Dalchand soon after the incident. Similarly, Ramkishan PW 12, Arjunsingh PW 15 and Dalchand PW 17 also had seen the appellants going armed from the sugarcane field of Dalchand. The Additional Sessions Judge also relied upon the statement of Kalyan Bairwa PW 4, who is stated to have seen the appellants and Ramchandra lifting away Girjesh Kumari from the boundary-wall and taking her inside the bushes. The trial court also believed the evidence of Fateh Chand Meena PW 11, before whom, Chhitarlal appellant is alleged to have made extrajudicial confession of the guilt. The clothes of deceased Girjesh Kumari which were seized had the police and were sent for chemical-examination, were opined to be stained with human-blood of Group-B. The clothes of Chhitarlal which were seized, including the weapon, 'Kuntiya', recovered at his instance and they were also found to be stained with human-blood of Group-B The trial court held that there was no delay in lodging of the FIR, and that the contents of the FIR could not be said to be fabricated owing to appearance of the interpolation of the name of Banta appellant in Ex.P.l. It was thus held that the prosecution has been able to establish that the appellants committed rape on Girjesh Kumari and after having raped her, they murdered her. It was also held that the appellants had lifted away Girjesh Kumari, and she was taken to the field having crop of sugarcane. 4. The learned counsel for the appellants challenged their conviction and urged that Chhitarlal was aged 45-50 years and was an elderly mature man. One of the accused, Ramchandra (being tried in Children's Court) was son of Chhitarlal and was aged about 15 years, while Banta was about 17-20 years of age and was servant of Chhitarlal. It was argued to be highly unnatural that on elderly father ; along with his minor son and servant, would have committed rape on a girl aged 12 years and then murdered the girl in broad daylight. It was pointed out that appellant Chhitarlal and the complainant Dalchand belonged to the same community and had political rivalry inasmuch as they had contested the election of Sarpanch, in the last Panchayat Election. It was urged that sugarcane plants were standing in the field at a distance of about 9 inches between the plants and the leaves of the two plants were also joining each other. All that was found at the place of the incident was blood in the sugarcane field. Neither the plants were found lying on the ground nor there was found any blood marks or stains on the sugarcane plants. The height of the plants was 7 to l0 feet. The offence of rape could not have been committed by anyone when sugarcane plots were standing unless the plants were cleared from the surface of the earth to the minimum distance of 5 feet and 3 inches. If rape had been committed by three persons in the midst of sugarcane plants, both the victim as well as the accused were expected to sustain injuries on their persons and their clothes might have also torn, but, these were not so. Discrepancy was also pointed out with respect to the time of the incident. The presence of the witnesses who claim to have seen the appellants before or after the incident, is alleged to purely of per chance nature, quite unnatural and false. Statements of the witnesses u/s. 161. Cr.P.C. were recorded after an unexplained delay of three days. It was next urged that the prosecution case that injuries on the body of Giriesh Kumari were caused by 'Paraniya' and 'Kuntiya', dose not find support from the medical evidence. Statements of the witnesses u/s. 161. Cr.P.C. were recorded after an unexplained delay of three days. It was next urged that the prosecution case that injuries on the body of Giriesh Kumari were caused by 'Paraniya' and 'Kuntiya', dose not find support from the medical evidence. No independent witnesses have been examined to support the prosecution case. The statement of Fateh Chand PW 11, about the alleged extra-judicial confession by Chhitarlal, is told to be utterly wrong as well as unnatural. The setzure-memo (Ex.p.6) of the clothes of Chhitarlal did not mention that these clothes had (illegible) of staline of blood on them. The learned Public Prosecutrix has supported the findings of the Additional Sessions Judge on all the points arising for determination in the case. 5. At the outset, we may state that there is serious discrepancy in the prosecution case about the line of the incident. Dalchand PW 17 is the father of deceased Girjesh Kumari, According to him, Girjesh Kumari had gone to the well to look after the crop, at 7 Am. The well was at a distance of about 150 foot-steps from the house. He has stated in his cross-examination that Girjesh Kumari used to go to field at / A.M. and return to house at about 9 A.M. daily, as she had go to school at 10.30 A.M. He has also said that Girjesh Kumari used to take her breakfast at the field and that on the day of the incident also Girjesh Kumari had taken her breakfast to the field. However, she could not take it before the incident occurred as the commodities were lying scattered near the well. The Officer-in-Charge of PS-Kishanganj in the formal FIR (Ex.P.22), drawn by him, mentioned the time of the incident as between 8 A.M. & 9 A.M. on Nov. 5, 86. However, this time does not find support from any of the prosecution witnesses examined in the case. Ghanshyam PW 1 states to have seen the appellants and Ram Chandra going from the side of the field of Dalchand towards Aklera at about 11 A.M. or 12-noon, armed with 'Kuntiya' and Paraniya'. 5, 86. However, this time does not find support from any of the prosecution witnesses examined in the case. Ghanshyam PW 1 states to have seen the appellants and Ram Chandra going from the side of the field of Dalchand towards Aklera at about 11 A.M. or 12-noon, armed with 'Kuntiya' and Paraniya'. Hemraj PW 2 states that he had heard noise of weeping from the house of Dalchand at about 10.30 A.M. or 11 A.M. Jagannath PW 10 has deposed that it was at about 11 A.M. that he had heard the noise from the field of Madanmohan, and that when he went there, he saw the appellants running away. Mangilal PW 12 also gives the time of the incident as at about 10 A.M. or 11 AM. Even, Dalchand PW 17 has stated that he had returned from his field at about 10.45 AM, and then he learnt from his wife that Girjesh Kumari had not returned to house. He then went to the well and saw the appellants and Ram Chandra, running away from the place of the incident. Thus, while the normal house for return of Girjesh Kumari from the field were 9 A.M., and it is said that Girjesh Kumari had not even taken her breakfast, which she had taken to the field before the incident took place, and the FIR (Ex.P.22) mention the time of the incident as from 8 A.M. to 9 A.M., but, the prosecution witnesses drag on this line of incident to 11 A.M. to 12-noon. 6. The next important aspect of the case is that all the witnesses who profese to have seen the appellants and Ramchandra going from the place of the incident towards Aklera, or running away from the place of the incident mere Chance-witnesses, and it cannot be believed that they all had seen the appellants going from the place of the incident. Ghanshyam PW 1 only states that he had seen the appellants and Ramchandra going armed with 'Kuntiya' and 'Paraniya'towards Aklera. Having seen him, these persons left the usual path-way and ran away towards Aklera side. Kalyan PW 4 has stated that he had been the appellants lifting Girjesh Kumari from the 'Kot' (wall) and taking her behind the wall to the sugarcane field. However, he neither went to rescue the girl nor informed Dalchand about it. Having seen him, these persons left the usual path-way and ran away towards Aklera side. Kalyan PW 4 has stated that he had been the appellants lifting Girjesh Kumari from the 'Kot' (wall) and taking her behind the wall to the sugarcane field. However, he neither went to rescue the girl nor informed Dalchand about it. This inaction on the part of Kalyan PW 4 is so unnatural that we find no plausible explanation about his conduct. Jagannath PW 10 had also seen the appellants armed with weapons, and had heard the cry, but, he also took no steps to chase these persons and remained content only by reaching the place of the incident. Even Dalchand, the father of the girl, having seen the appellants at the place of incident and running away from there, took no steps to chase them and catch hold of them. The names of Ramchandra PW 12 and Arjun Singh PW 15 were mentioned in the FIR as the first persons to have reached the place of incident and they also took no steps to chase the appellants and Ramchandra. It would thus appear that despite the fact that so many persons profess to have seen the appellants lifting the place of incident, after committing rape and murdering Girjesh Kumari, none of them even rushed behind the appellants and Ramchandra, to catch hold of them. This conduct on the part of the witnesses including the father of the girl, was quite unnatural and it only indicates that they are not truthful witnesses about having been the appellants running away from the place of the incident, after committing the crimes alleged. Had there witnesses seen the appellants in the manner stated by them, they would have jointly proceeded to catch hold of the appellants and Ramchandra, and more so, when a young girl aged 12 years of Dalchand was found missing from the well, and was heard to be crying from the sugarcane field. We are not ready to accept the testimony of these witnesses that they had seen the appellants and Ramchandra, going away from the place of the incident, armed with weapons, assigned to them, after committing the offences. 7. We are not ready to accept the testimony of these witnesses that they had seen the appellants and Ramchandra, going away from the place of the incident, armed with weapons, assigned to them, after committing the offences. 7. As to the alleged motive behind the commission of the crime, it may be mentioned that if Chhitarlal appellant had any grievance, that was against Roop Narain, son of Madanmohan PW 3, because, it is alleged that it was Roop Narain, who had misbehaved with the daughter-in-law of Chhitarlal. If revenge had to be taken by Chhitarlal, it was to be taken by him as against Roop Narain or his father and not against Dalchand or his daughter. It has come in evidence that there was political rivalry between Dalchand and Chhitarlal, inasmuch as both of them had contested the election of Sarpanch as against each other. This fact is borne out from the testimony of Kalyan PW 4. 8. The prosecution evidence would go to show that according to the prosecution, Kalyan was the most material witness as he states to have seen the appellants lifting Girjesh Kumari from the wall and taking her behind the wall to the sugarcane field, but, his name was not at all mentioned in the FIR, lodged by Dalchand, through Hemraj. On the other hand, only the names of Arjun Singh and Ram Kishan were mentioned in the FIR. The name of Gajanand PW 2 who, according to Dalchand, was amongst the first persons to reach the place of incident, also does not find place in the FIR. It may also be mentioned that Ghanshyam PW 1 Hemraj PW 2 and Gajanand PW 10 are not independent witnesses and they were relates to each other and were interested in the complainant. Ghanshyam PW 1 and Hemraj PW 2 are real brothers, being sons of Kesarilal and Gajanand PW 10 the son of this witness. It is also clear that they were cultivating the laud jointly in profit with Madanmohan, father of Dalchand, Kesarilal, father of Ghanshyam and Hemraj, was witness against Chhitarlal in a murder-case, in which, Ramkishan's father, Mangilal, was murdered. Ramkishan PW 12 is the son of Mangilal, and it is alleged that Chhitarlal had committed the murder of Mangilal on account of some land-dispute. Arjun PW 15 is the servant of the complainant. Dalchand and his father Madan Mohan. Ramkishan PW 12 is the son of Mangilal, and it is alleged that Chhitarlal had committed the murder of Mangilal on account of some land-dispute. Arjun PW 15 is the servant of the complainant. Dalchand and his father Madan Mohan. The police-statements of these witnesses were recorded 3 day after the incident. 9. It is also important to note that there are certain interpolations in the FIR, inasmuch as the name of Banta, son of Solu, appellant; and the particulars about the weapons appear to have been inserted later on as a second thought. 10. Important also it is to note that Chhitarlal and Banta were arrested on Nov. 6, 86, vide arrest-memo Ex. P. 23 & P. 24. However, the clothes of Chhitarlal. like. Terrycot-Kurta, Banyan and Dhoti were seized only after 4 days, i.e., on Nov. 10, 86, vide seizure-memo (Ex. P. 16). The seizure-memo (Ex. P. 16) does' not mention that there were stains of blood on these clothes. No seizure-memo of the clothes of Banta, has been proved in this case. However, it appears from the report of the Serologist (Ex. P. 29) that 2 Kurtas, 1 Doti, 1 Banyan and Pajama were sent for chemical-examination. It is not clear as to whom the Pajama and the Kurta belonged. It may must be mentioned that the medical-evidence does not support the prosecution version that injuries were inflicted from the weapons of offence, recovered in this case. Er. B.M. Soni PW 13 has deposed that injuries Nos. 6 & 7 could not be sustained by the deceased by 'Kuntiya' and 'Paraniya' (articles 2 & 3 in the case). Injury No. 8 also could not be sustained by 'Kuntiya' (art. 3). Moreover, blood could not be detected on 'Paraniya'. 11. Dr. Urmila Katiyal PW 18 has said that none of the injuries was having curve like in articles 2 & 3. Then, there is evidence about the alleged extra-judicial confession having been made by Chhitarlal to Fatehchand PW 11. Fatehchand has stated that Chhitarlal and Banta come to his house at about 9-10 P.M. and that they had told him that they had killed Girjesh Kumari, daughter of Dalchand, and had asked him that he (Fatehchand) might assist them by money. Then, there is evidence about the alleged extra-judicial confession having been made by Chhitarlal to Fatehchand PW 11. Fatehchand has stated that Chhitarlal and Banta come to his house at about 9-10 P.M. and that they had told him that they had killed Girjesh Kumari, daughter of Dalchand, and had asked him that he (Fatehchand) might assist them by money. Fatehchand yielded no influence with the police and it is not understandable as to why Chhitarlal and would have made an extra-judicial confession of the crime before a person, who could not have served any useful purpose to them. Moreover, extra-judicial confession is a very weak type of evidence; and in the facts and circumstances of the case, no conviction can be based solely on this unbelievable extra-judicial confession. It may also be mentioned that according to the prosecution, the rape was also committed in the sugarcane field, where sugarcane were growing at a distance of 9 inches from each other. The crop was at a height of 7-10 feet. However, no part of the crop was found to have been damaged, and there were no stains of human-blood on any part of the crop. In such circumstances, it is not possible to hold that rape was committed at the place of the incident. Had rape on Girjesh Kumari been committed at the place of the incident, there would have been some damage to the crop and also injuries on the back of Girjesh Kumari, and further, also some stains of human-blood on the leaves of the crop. Therefore, it is not possible to hold that rape was commuted at the place of the incident. All that can be said is that the dead body of Girjesh Kumari was found lying amidst sugarcane crop, when Dalchand reached there. But, that alone is not sufficient to implicate the appellant, or connect them with the crime of rape or murder. 12. On a consideration of the entire evidence, produced in the case by the prosecution, we are of the opinion that there was no eye-witness to the incident, and the only piece of circumstantial evidence are entirely insufficient to connect the appellants with the crime of rape or murder. The appellants are entitled to be acquitted, of the offences for which they have been convicted. 13. We, therefore, allow DB Cr. (Jail) Appeal No. 79/88 and DB Cr. The appellants are entitled to be acquitted, of the offences for which they have been convicted. 13. We, therefore, allow DB Cr. (Jail) Appeal No. 79/88 and DB Cr. Appeal No. 80/88, filed by Chhitarlal and Banta, and set aside their conviction for offences u/ss. 364, 376/34 & u/s. 302/34, IPC, and also the sentences awarded to them; and acquit them of the said offences. So far as DB Cr. Revision Petition No. 43/88, filed by Dalchand complainant, is concerned, we dismiss the same. Both the appellants, Chhitarlal and Banta are in jail. They be immediately released from jail, if not warned in any other case.Appeals allowed and Revision Petition dismissed. *******