JUDGMENT - BRAHME P.S., J.:---This is an appeal by State challenging the judgment and order of acquittal of respondent Teju of the offence under section 376 of Indian Penal Code, and under section 3(1)(xii) of the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act. 2. Respondent was tried for committing rape and murder of prosecutrix Shalu (since deceased) daughter of P.W. 1 Leela under sections 376 and 302 of I.P.C and for offence under section 3(1)(xi) of Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act. The Additional Sessions Judge, Yavatmal by his judgment and order passed on 17-2-2003 in Special Case No. 2/1998 convicted the respondent for offence under section 302 and sentenced him to death while acquitting him of offence under section 376 I.P.C. and under section 3(1)(xi) of Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act. 3. The incident which gave rise to this prosecution against respondent took place on 20-9-1997 at about 5.30 p.m. within the limits of Police Station Ladkhed. The prosecutrix Shalu who had gone to graze she goats-towards the field had not returned in the evening on scheduled time. Her mother Leela (P.W. 1) returned to the field to search her. She was accompanied by her husband Narayan Ade and Shanti (P.W. 3). As per prosecution case, on 20th September, 1997 since 10.00 a.m. P.W. 1 Leela, alongwith her husband Narayan Ade and daughter Shalu aged 16 years had gone to Goki Nala to graze cattle (she goats) and collect firewood. P.W. 1 Leela and her husband Narayan after collecting firewood started for returning back to their home at about 3.30 p.m. and asked their daughter Shalu to follow them taking she goats. After they reached home till 5.00 p.m. daughter Shalu did not come home. Therefore, Leela accompanied by her husband went toward Nala to search their daughter Shalu. When they were approaching Nala, Leelabai found respondent Teju dumping stones in pit; where Shalu was lying in naked condition. On seeing her in that condition, Leelabai raised shouts and on hearing that respondent-Teju fled away. They found that Shalu was dead and rape was committed on her. Her underwear (Nicker) was found lying near her body. The clothes on her body viz. Kudta Gown (wrongly described as Salwar) and peticoat were found gathered near her neck. 4. On seeing her in that condition, Leelabai raised shouts and on hearing that respondent-Teju fled away. They found that Shalu was dead and rape was committed on her. Her underwear (Nicker) was found lying near her body. The clothes on her body viz. Kudta Gown (wrongly described as Salwar) and peticoat were found gathered near her neck. 4. Leelabai rushed to Police Station, Ladkhed and lodged report (Exhibit 39) at 6.00 p.m. narrating what she saw at the place of occurrence, alleging that respondent Teju committed rape on her daughter Shalu and killed her. A.S.I. Bhaurao Kawankhede (P.W. 10) on that report registered offence vide C.R. No. 140/97 and A.S.I. Madhaorao Deshmukh (P.W. 7) took up investigation and visited place of occurrence and on seeing dead body of Shalu made Inquest panchanama Exhibit 43 and dead body was sent to Cottage Hospital, Darwha, where Doctor Dudhe (P.W. 8) conducted autopsy and prepared postmortem report Exhibit 58. In his opinion cause of death was cardio respiratory arrest due to neurogenic and hemorrhagic shock on account of multiple injuries over scalp and hematoma in extradural shape. On external examination of genital, he found hymen ruptured but there was no injury to private parts and neither semen nor spermatozoa was detected in vaginal swab, public hairs, P.W. 1 Balokar (P.W. 13) after completing investigation, filed charge-sheet. 5. Before the trial Court respondent pleaded not guilty to the charge (Exhibit 12) and claimed to be tried. His defence was of total denial and false implication contending that Narayan Ade was facing trial for offence under section 307 I.P.C. in which his father was a witness and Leelabai asked his father to give evidence in her favour but his father did not give evidence in her favour, hence since then Leelabai and her husband Narayan were against them. He also contended that P.W. 2 Shantabai gave false evidence against him to save her son Shantaram as she knew that her son Shantaram was having illicit relation with Shalu who was suspected to be the person who killed Shalu. 6. At the trial prosecution examined in all 13 witnesses including Leelabai, Shantabai, Dr. Dudhe, A.S.I. Madhukar Deshmukh, Dr. Sudhakar Dehankar (P.W. 11) and P.S.I. Belorkars. 6. At the trial prosecution examined in all 13 witnesses including Leelabai, Shantabai, Dr. Dudhe, A.S.I. Madhukar Deshmukh, Dr. Sudhakar Dehankar (P.W. 11) and P.S.I. Belorkars. Considering medical evidence and attending circumstances, the trial Court found that the factum of forceful sexual intercourse is not proved and so respondent came to be acquitted of offence under section 376 I.P.C. and offence under section 3(1)(xii) of the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act. While on evidence it was established that respondent committed murder of Shalu and therefore, he was convicted for offence under section 302 of I.P.C. and sentenced to death. 7. We have heard Mr. Loney, the learned A.P.P. who did not press for challenge to acquittal of respondent for offence under section 3(1)(xii) of the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act, for appellant and Mr. Daga, learned Advocate for respondent, we have gone through the evidence with assistance of learned Counsel for parties. The learned A.P.P. submitted that trial Court has not properly appreciated the evidence. There was swelling on wrist and stains on private parts of the victim Shalu and scratches on her back which show that she was raped before she was killed. The trial Court ignored that there were radish clay stains on the cloths of the accused and there were whitish stains on his underwear. The victim was lying nacked in the pit while her nicker was placed by the side of her body and clothes on her person were found gathered upwards near her neck. These circumstances in all probability indicate that rape was committed on her. Accused on seeing P.W. 1 (Leelabai) ran away from there on dumping stone. This circumstances and conduct militates against his innocance. The fact that the doctor found her hymen ruptured goes to show that she was sexually abused by the accused. It is submitted that finding of acquittal recorded is perverse as on evidence it is established conclusively that accused committed rape on her. It is contended that mere absence of injury on her private part and non-detection of semen or spermatozoa in vaginal stains and swab, is no ground to discard other evidence which indicates that rape was committed. That victim was found naked, her clothes viz. gown and peticoat were found gathered upto her neck and her hymen was ruptured are circumstances which suggest that rape was committed. That victim was found naked, her clothes viz. gown and peticoat were found gathered upto her neck and her hymen was ruptured are circumstances which suggest that rape was committed. So he urged that the accused should have been held guilty and convicted. 8. As against that Shri Daga, Advocate submitted that in case of appeal against acquittal, though Appellate Court has power to reappreciate evidence, when two view are possible and the Court has taken view favourable to accused, the Appellate Court cannot interfere unless grave injustice is caused by acquittal of deceased. He further contended that Medical Evidence clinchingly goes to show that no rape was committed. Doctor candidly stated that if there has been recent rupture of hymen he would have certainly mentioned in report. Absence of injuries on genital, non detection of semen, spermatozoa in vaginal swab and public hair, totally ruled out possibility of rape as dead body lying in that condition was taken to hospital for postmortem. 9. Before embarking upon the submissions of the Counsel for the parties, we find it appropriate to refer to the decision of the Apex Court in 2003(3) Crimes 346 (State of Rajasthan, Appellant v. Rajaram, Respondent)1, while dealing with the powers of the Appellate Court, in an appeal against acquittal. The Apex Court observed "There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored a duty is cast upon the Appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. In a case where admissible evidence is ignored a duty is cast upon the Appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference". 10. Now coming to the case before hand at the trial the following circumstances were placed into service by the prosecution to establish the guilt of the accused for the offence under section 376 of I.P.C. 1) Dr. Narendra Dudhe on examining the accused-Tejsingh on 20-9-1997 at about 11.45 p.m. noticed one abrasion of size 1 cm. x 1 cm. over the lower part of right knee as noted in the medical certificate Exhibit 62. 2) Dr. Narendar Dudhe noted in Column No. 15 of the postmortem under Exhibit 58 that hymen ruptured and Yellowish oily stain were present alongwith yellow tiny grass leaves at perinal region. 3) Dr. Vasudha Dehankar on examining the accused on 22-9-1997 noted abrasion on the right and middle of his back 3 cm. x 1/5 cm. as noted in the medical certificate Exhibit 81. 4) In the postmortem report Exhibit 58 injuries were noticed on the hands of deceased Shalu. 5) P.S.I. Balorkar deposed that when he visited the place of occurrence and prepared spot panchanama, he noted that the earth on the spot displayed signs of scuffle. 6) Leelabai stated in her evidence that Jangiya (underwear) of deceased Shalu was sent removed and her private parts were necked. 7) Madhavrao Deshmukh (A.S.I. P.W. 7) deposed that when private part of the body was inspected with the assistance of lady panch semen stains were noticed on the private part. 8) One hole button which was found on the spot as per the spot panchanama Exhibit 44, tallied with the rest of the buttons of the shirt seized from the house of the accused under panchanama Exhibit 48; 9) As per the report of Chemical Analyser Exhibit 87, the earth seized from the spot of incident and earth like stains on the shirt of the accused are having physico chemical characteristics. 11. 11. The learned trial Court placed reliance on the decision of (Dilipkumar Tarachand Gandhi another v. State of Maharashtra)2, reported in 1992(1) Bom.C.R. 59 (Bombay High Court) in case of circumstantial evidence held that circumstances considered collectively must lead only to the conclusion of the guilt of the accused and, thirdly, they must exclude all hypothesis consistent with the innocence of the accused. The trial Court rightly found that Leelabai (P.W. 1) and Shantabai (P.W. 2) are not the witnesses to the incident of rape alleged to have been committed by the accused. All that has come out in their evidence is the presence of the accused when they arrived at the place of occurrence. According to the evidence of witness Leelabai accused was dumping stones in the pit where dead body of Shalu was lying and on seeing Leelabai when she raised shouts the accused fled away. So far as the witness Shantabai is concerned, she only saw the accused running away from there. Therefore, it is crystal clear that except presence of the accused nothing material comes out in the evidence of these witnesses. 12. The trial Court on scrutiny of the circumstances on which the prosecution placed reliance observed that it is obvious that the absence of medical evidence plays vital role in rejecting the circumstances relied upon by the prosecution. It was a matter of common prudence that had deceased Shalu been subjected to forcible sexual intercourse then in that case Dr. Narendra Duhe who conducted autopsy on the dead body would have definitely noted signs of rape on her private parts. The trial Court observed that as noted in the postmortem report Exhibit 58, no external injuries were seen upon external genitals, although there was presence of yellowish and oily stain on vagina and her hymen was ruptured. But then as per the report of the Chemical Analyser Exhibit 90 it shows absence of semen or spermatozoa in the cotton swab of vaginal stains and on public hair and therefore, according to the trial Court absence of medical evidence pertain to sexual intercourse is said to be a missing link in the chain of circumstances, which totally falsifies the prosecution case that rape was committed on the victim Shalu. On the conduct of the accused as regards the accused fled away on seeing witnesses Leela and Shantabai the trial Court observed that on this conduct it can not be stretched too far to presume that the accused committed rape. The accused might have attempted to have the victim Shalu but because of residence offered by her could not have succeeded. We may go a step ahead and say that the conduct of the accused running away on seeing witness Leelabai might raise strongest circumstances as to involvement of the accused, but it is well settled that mere suspicion how so ever strong can not take the place of proof. The Apex Court has held way back in the year 1957 in case reported in A.I.R. 1957 S.C. 637 (Swarnasingh v. State of Punjab)3, that suspicion how so ever strong, can not take place of proof. There is distinction between accused "must have committed offence" and "the accused might have committed the offence", is very thin but real one. 13. As laid down by the Apex Court in decision in 2003(3) Crimes 346 (supra) we are mindful that the Appellate Court has every power to reappreciate the evidence in case of appeal against acquittal. But it goes without saying that when the question of interference arises, it is only in case of miscarriage of justice which arises from acquittal of the guilty person and when it is found that the trial Court has ignored admissible evidence and that the appreciation of evidence is totally perverse, for the purpose of ascertaining as to whether the accused has committed offence, it is legitimate for the High Court to reappreciate the evidence and then it is said that there are compelling and substantial reasons for interference by the High Court in a judgment of acquittal. 14. So far as the medical evidence is concerned, we have found that the trial Court has committed no error in coming to the conclusion that the medical evidence is lacking to establish that the rape was committed on the victim. In this context, it would be very much interesting to note that the admission given by the Medical Officer on the basis of the finding noted in the postmortem report, that the hymen was ruptured. In his examination-in-Chief, Dr. In this context, it would be very much interesting to note that the admission given by the Medical Officer on the basis of the finding noted in the postmortem report, that the hymen was ruptured. In his examination-in-Chief, Dr. Dudhe, stated "1 agree with the preposition that the rupture of hymen is one of symptoms indicating sexual intercourse". In his cross-examination in this regard he stated that "there is difference between the term "torn and ruptured". There could be recent torn of hymen or old tear of hymen. He stated with emphasis that "I have not mentioned specifically as to whether the rupture of hymen noticed by him was old or recent. Had the rupture been recent, I would have certainly mentioned it with specific vital signs regarding the same". Admittedly, on external genitals of the victim no injury was found. It is admitted, that though the vaginal swab was taken as yellowish stains, were noticed in the vagina, as per the report of the Chemical Analyser neither the semen nor spermatozoa nor blood was detected in the swab. The position that is to be taken into consideration and it is of vital importance is that after the alleged act of rape was committed and deceased was killed, the dead body was lying there in that condition and it was removed to the hospital for carrying out autopsy. It is in that situation absence of semen or spermatozoa or blood in vaginal swab is totally derogatory to the accusation that the victim was subjected to forceful sexual intercourse before she was killed. In addition to that absence of any injury on the private part of the victim is a circumstance which militates against the claim that the victim was subjected to rape. In our opinion in the absence of medical evidence showing that rape was committed on the victim other circumstances of presence of the accused as also his conduct of running away, how so ever incriminating it may be, is not sufficient to infer that the accused had sexual intercourse with the victim. Therefore, the view taken by the trial Court that the factum of rape is not established, is correct and possible view. In other words, with the circumstances attending the case the other view indicating the commission of crime of rape by the accused is not at all possible, even if evidence as it is accepted. Therefore, the view taken by the trial Court that the factum of rape is not established, is correct and possible view. In other words, with the circumstances attending the case the other view indicating the commission of crime of rape by the accused is not at all possible, even if evidence as it is accepted. Therefore, there is no justification to interfere with the order of acquittal. 15. Much has been made by the learned A.P.P. about the other circumstances, particularly finding of nicker lying by the side of dead body, upper garments namely gown and petticoat, having gathered upward towards the neck and lower part of the body particularly private part found necked, indicate that the victim was subjected to sexual abuse. It is no doubt true that at the first blush in the situation that prevailed there, this circumstance may suggest of some sexual abuse on the victim. But on close scrutiny of the evidence in the background of absence of medical evidence, it on the other hand indicates that there must not have been sexual intercourse on her. This circumstance could be of no assistance to hold that the victim was subjected to sexual assault, much less by the accused. Therefore, the view taken by the trial Court in respect of this circumstance appears to be plausible and probable. 16. It is true that other circumstances namely finding of earth stains on the clothes of the accused and the button which tallied with the rest of the buttons of the shirt of the accused do speak of his presence, but again these circumstances are not sufficient and conclusive to hold that the accused committed rape. In that context absence of medical evidence of rape is a matter of paramount consideration which impairs incriminating nature of circumstances. 17. The learned A.P.P. has placed reliance on decision of the Apex Court (State of Karnataka, appellant v. Maniyappa and others, respondents)4, reported in 1994(5) S.C.C. 729. In that case as regards the absence of spermatozoa in vaginal smear, the Apex Court found that with regard to the vaginal smear examination the doctor stated that no spermatozoa was seen on it and absence of spermatozoa has been viewed against the version of the prosecutrix. It was never elicited from the prosecutrix as to whether two persons who committed rape on her had reached orgasm emitting semen in her private part. It was never elicited from the prosecutrix as to whether two persons who committed rape on her had reached orgasm emitting semen in her private part. No presumption can be made that penetration of penis in the private part of a rape victim must necessary led to a discovery of spermatozoa. It is a question of detail and has to be put to test by cross-examination. Therefore, that does not falsify the version for the prosecutrix wherein she has stated that rape was committed on her. There is no dispute as to the ratio laid down by the Apex Court. But in the case before hand, it is very difficult to hold that even though in the absence of semen and spermatozoa in vaginal smear it could be said that rape was committed on the prosecutrix. Had there been any cogent evidence indicating that rape was committed on the prosecutrix, then in that case absence of semen or spermatozoa in the vagina, would not have come in the way of holding that the rape was committed. 18. The reliance is also placed by learned A.P.P. on the decision of the Apex Court in A.I.R. 1995 S.C. 1926 (Narayan, appellant v. State of Tamil Nadu, respondent)5. In that case accused was tried for commission of rape. Conviction was based on circumstantial evidence. One of the circumstance was regarding the presence of the accused and victim in a room when the door of the room was forcibly opened by the police. It was held that guilty mind of the accused is reflected from his conduct and therefore, circumstances irresistibly pointed guilt of the accused of commission of rape. It is significant to note that in that case commission of rape was proved by the medical evidence. In the case before hand even though the conduct of the accused was that he was found running away from the place, by itself is not sufficient to hold him guilty for commission of rape when the factus of rape, is not established by the medical evidence on record. 19. Mr. Loney, also placed reliance on a decision reported in 1994(6) S.C.C. 29 (State of U.P., appellant v. Babul Nath)6, wherein the accused was committing rape on victim of aged 5 years. Doctor found that hymen was completely torn with laceration on all sides of vagina and fresh bleeding. 19. Mr. Loney, also placed reliance on a decision reported in 1994(6) S.C.C. 29 (State of U.P., appellant v. Babul Nath)6, wherein the accused was committing rape on victim of aged 5 years. Doctor found that hymen was completely torn with laceration on all sides of vagina and fresh bleeding. It was held that the victim was subjected to sexual assault. On behalf of the accused it was suggested that the injuries found on the private part of the victim could be possible and caused by instrument like a piece of glass. Apex Court rejecting the defence held that merely because the injuries could also be caused by instrument like piece of glass, cannot lead to conclusion that no rape was committed, unless there is material to support such conclusion. In the case before hand we do not think that decision is of any assistance, when medical evidence does not support the case of factum of rape. 20. To sum up, on careful assessment and reappreciation of evidence on record by us, independently and dispassionately, we are of considered view that the prosecution has failed to establish beyond shadow of doubt that respondent committed offence under section 376 of Indian Penal Code. The trial Court committed no error or illegality in acquitting him. We do not find that other view of holding guilty the respondent for offence under section 376 of I.P.C. could be taken, in all probability. Therefore, no case for interference is made out. Acquittal of respondent cannot be said to be unreasonable and unwarranted. Hence the order. ORDER 21. Appeal is dismissed. Appeal dismissed. -----