JUDGMENT - BRAHME P.S., J.:---Appellant Deepak s/o. Pandurang Bahekar was tried for the offences under sections 376 and 302 of the Indian Penal Code for committing rape and then murder of victim Ratna. The learned Additional Sessions Judge, Bhandara in Sessions trial No, 123 of 1997, by his judgment and order dated 15th December, 1998, convicted the appellant for the offences under sections 376 and 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for one year and to suffer life imprisonment and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for one year respectively. This judgment of conviction and sentence in under challenge in this appeal. 2. The incident, which gave rise to this prosecution against the appellant, took place on 2-9-1997 in between 10.00 a.m. to 6.00 p.m. within the limits of village Pardi which comes under the Police Station, Lakhandur, Dist. Bhandara. The victim of sexual assault and murder was one Ratnabai, aged about 20 years and she was daughter of Kawalu s/o. Maroti Hukare and Kamaljabai w/o. Kawalu Hukare and sister of Waman Hukare (P.W. 1). On the day of incident in the morning she left the house and had gone to the field for collecting grass. But, she did not return home on that day. That day happened to be a festival day commonly known as "Tanha Pola" festival. As Ratna did not return, her brother Waman and her parents on the next day, went towards their field to search her. In that effort to search her, her brother Waman saw Ratnabai lying dead in their field. He, therefore, went to the Police Station and lodged report (Exh. 13). 3. As could be seen from the report (Exh. 13), what was informed by witness Waman was the only fact that his sister Ratna was found lying dead in the corner of their field. Though waman, in his evidence before the Court, claimed that there was quarrel about a month before in which his sister Ratna was beaten by chappal by the accused, nothing has been disclosed to that effect in the report (Exh. 13), though Waman claimed in his evidence that he had stated before the police to that effect. Though waman, in his evidence before the Court, claimed that there was quarrel about a month before in which his sister Ratna was beaten by chappal by the accused, nothing has been disclosed to that effect in the report (Exh. 13), though Waman claimed in his evidence that he had stated before the police to that effect. Prosecution had placed on the record the evidence as regards the said incident that took place about a month before in which there was a quarrel and the accused came to be assaulted by the victim. But, no report to that effect was lodged either by the accused or by the victim or the parents of victim. But, prosecution led evidence on that aspect in the matter only to show that the incident provided motive for the accused to assault the victim. 4. The father of deceased Ratna also claimed that after seeing the dead body of Ratna lying in the field, he lodged report in the Police Station wherein it was alleged that Ratna was killed by the accused and to emphasize this, a statement was made by the witness before the Court that at the time when earlier incident took place, the accused had given threat to kill Ratnabai. Police Station Officer Mr. Gajanan Shelke (P.W. 13), on receiving the report (Exh. 13) visited the place of occurrence and drew spot panchanama (Exh. 37) and inquest panchanama (Exh. 22) and the dead body was sent to the Rural hospital, Lakhandur. He registered offence vide crime No. 98 of 1997 after issuing the first information report (Exh. 46). The accused was arrested on 3rd September, 1997 by making arrest panchanama (Exh. 25) and he was sent for medical examination. He was examined by Dr. Bhiva Kathane (P.W. 12), Medical Officer attached to the Rural hospital and certificate Exh. 41 was issued by him. During the course of investigation the clothes of the accused namely lungi (article No. 6) and baniyan (article No. 7) came to be seized. 5. In the rural hospital, Dr. Pramod Apture (P.W. 11) conducted autopsy on the dead body of Ratnabai and prepared post mortem notes (Exh. 39). In his report in Column No. 17, he has noted the external injuries found on the body. Those external injuries are in the nature of abrasion and the Medical Officer has opined that the injuries were ante mortem in nature. Pramod Apture (P.W. 11) conducted autopsy on the dead body of Ratnabai and prepared post mortem notes (Exh. 39). In his report in Column No. 17, he has noted the external injuries found on the body. Those external injuries are in the nature of abrasion and the Medical Officer has opined that the injuries were ante mortem in nature. He has also stated in his evidence that the injuries Nos. 4, 5, 6 and 7 are corresponding to the cause of death while injuries No. 1, 2 and 3 are corresponding to the incident of rape. He also noticed that there was slight blood discharge from vagina, volva oedemottus, hymen ruptured and according to him, these findings were definitely indicative of forcible intercourse before death. So far as the cause of death is concerned, in the opinion of the Medical Officer, the cause of death was asphyxia due to smothering. 6. The Investigating Officer sent the property seized including clothes of the deceased to the Chemical Analyser and after receiving the report of C.A. (Exhs. 28 and 49), as the investigation was complete, filed charge-sheet in the Court of Judicial Magistrate, First Class, Sakoli, who, in turn, committed the case to the Court of Sessions, Bhandara. Before the Sessions Court, the appellant pleaded not guilty to the charge and claimed to be tried. His defence was that of total denial. Prosecution examined in all thirteen witnesses including Waman (P.W. 1), Kawalu (P.W. 2), Kamlajabai (P.W. 3), Nanaji (P.W. 4), a person having field adjoining to the field of Ratnabai, Latabai (P.W. 5) a neighbour of Ratnabai, Mangesh (P.W. 7), who claimed to have witnessed the incident of assault by the accused on Ratnabai, Medical Officer Dr. Pramod Apture (P.W. 11), Medical Officer, Dr. Bhiva (P.W. 12) and Gajanan Shelke, P.S.O. (P.W. 13), who conducted the investigation. After prosecution closed its evidence, the accused was examined under section 313 of the Code of Criminal Procedure. In addition to that, the accused also filed his written statement which is at Exh. 56. In his statement, he has, of course, denied the charge and evidence and at the same time, he has stated as to how he came to be falsely implicated in this case and probably, as it appears, it was on account of enmity between his father and the father of Ratnabai. 56. In his statement, he has, of course, denied the charge and evidence and at the same time, he has stated as to how he came to be falsely implicated in this case and probably, as it appears, it was on account of enmity between his father and the father of Ratnabai. The learned Sessions Judge, accepting the medical evidence, mainly found that Ratnabai was assaulted sexually and then she was killed in the field. Having regard to the circumstances attending the case and probably the circumstance that the accused had gone to his field on that day and that he was seen there and there was quarrel and some incident had occurred about a month before, the learned Sessions Judge found that the appellant was the author of the crime and accordingly, he found the appellant guilty for the offence charged with and consequently, passed the order of conviction and sentence. 7. We have heard the learned Counsel for the appellant, who took us through the evidence recorded at the trial. He submitted that there is no direct evidence showing involvement of the appellant in commission of the crime. The circumstances that the appellant was found in the field on the day when the incident took place by itself was not an incriminating circumstance in the absence of positive circumstantial evidence. He pointed out that no blood was detected on the clothes of the appellant. No semen stains have been detected on the clothes of the victim. In the absence of that, the evidence of witnesses, who claim to have seen the appellant in the field, is not sufficient even to raise suspicion about involvement of the appellant in the crime. That apart, the learned Counsel submitted that the evidence in that regard is also discrepant. The trial Court has discarded the evidence of witnesses, more particularly that of witness Shiva s/o. Ramu Mankar (P.W. 8) who is claimed to have eye-witnessed the incident. He submitted that the factum of earlier incident is not at all proved by prosecution independently through the evidence of witnesses. He pointed out that, in that regard, the witnesses have made improvement by making statement in that regard before the Court when their evidence was recorded. The learned Counsel urged that prosecution has utterly failed to establish that the offence has been committed by the appellant. 8. Mr. He pointed out that, in that regard, the witnesses have made improvement by making statement in that regard before the Court when their evidence was recorded. The learned Counsel urged that prosecution has utterly failed to establish that the offence has been committed by the appellant. 8. Mr. Mirza, the learned A.P.P., on the other hand, vehemently submitted that the witnesses Kamlajabai (P.W. 3) and Kawalu (P.W. 2) have stated in their evidence about the earlier incident. The happening of that incident itself was a motive for the appellant. He also pointed out that witness Nanaji (P.W. 4) has seen the appellant in the field where the dead body of Ratna was lying. The trial Court has rightly accepted the evidence of these witnesses and the appellant has been found rightly guilty for the offences. 9. So far as commission of rape on the victim is concerned, in our opinion the medical evidence of Dr. Pramod Apture (P.W. 11) on the basis of his post mortem notes (Exh. 39) is crystal clear. It is true that though vaginal smear of the victim was taken, nothing incriminating has been detected and that is very clear from the report of the Chemical Analyser (Exh. 28). The report shows that neither semen nor spermatozoa is detected on Exhs. 1 and 3. In that Exh. 1 is vaginal smear while Exh. 3 is public hair. Even blood group of the blood of victim could not be determined, as a result it was inconclusive. So far as the accused is concerned, the report of Chemical Analyser (Exh. 49) shows that neither blood nor semen was detected on clothes of the appellant namely lungi (article No. 6) and baniyan (article No. 7) nor spermatozoa was detected. As per this report (Exh. 49), neither blood nor semen was detected on article 1 cut jangiya, saree (article 4) belonging to the deceased. However, blood has been detected on article Nos. 2 and 3 which are petticoat and blouse of the deceased respectively. The report also shows that the blood detected on article Nos. 2 and 3 is human blood. However, blood group of the blood detected thereon could not be determined as the results were inconclusive. The learned Counsel for the appellant vehemently submitted that because of negative finding it cannot be said conclusively that the victim was subjected to sexual assault and rape was committed on her. 2 and 3 is human blood. However, blood group of the blood detected thereon could not be determined as the results were inconclusive. The learned Counsel for the appellant vehemently submitted that because of negative finding it cannot be said conclusively that the victim was subjected to sexual assault and rape was committed on her. We do not, however, accept this submission having regard to other clinching medical evidence. We have already referred to the evidence of the Medical Officer Dr. Pramod Atpure. In the post mortem report in Column No. 15, he has specifically noted the finding that there was slight blood discharge from vagina and hymen was ruptured. It was on the basis of these findings that he has given definite opinion that forceful intercourse must have been done before death. This medical evidence has not been shaken by the defence. There is reason to accept this evidence and therefore, we have no hesitation in agreeing with the findings recorded by the trial Court that the victim was subjected to sexual intercourse and as such, rape was committed on her. 10. As regards homicidal death, again we fall back upon the medical evidence. It is not disputed that the external injuries which the Medical Officer noted on the dead body were in the nature of abrasion and though injuries were ante mortem in nature, the Medical Officer has rightly opined that those injuries were responsible directly for causing of death of the deceased. But, at the same time, the Medical Officer has found that the cause of death was asphyxia due to smothering. This evidence has also not been challenged by the defence. Therefore, it has to be said that the deceased died homicidal death. 11. The vexed question that remains for consideration is whether appellant is author of the crime. It is clear from the evidence so far recorded and through which we have gone with the assistance of the Counsel for the appellant, that there is no direct evidence showing involvement of the appellant. Witness Shiva (P.W. 8) though claims in his evidence that he was present there and he saw the appellant having assaulted the victim and in his evidence he went to the extent of saying that the appellant assaulted the victim with sickle and thereby both the eyes of the victim were broken. Witness Shiva (P.W. 8) though claims in his evidence that he was present there and he saw the appellant having assaulted the victim and in his evidence he went to the extent of saying that the appellant assaulted the victim with sickle and thereby both the eyes of the victim were broken. But, this evidence and claim of the witness is found to be not supported by the medical evidence, as admittedly, no injury has been caused to either of the eyes of the victim. That apart, the possibility of this witness having seen the incident has been totally ruled out having regard to attending circumstances in the matter. Therefore, in our assessment independently, the claim of this witness does not stand to the reasons. He is not a witness of truth. In addition to that, what we have found from his evidence is that he has candidly admitted that he has given evidence before the Court as he was told by the brother and father of Ratnabai. He has also candidly admitted that police had come to Dhabe Pauni and asked him to give evidence to the effect that Dilip had beaten Ratnabai. We also take note of the fact that this witness Shiva is a child witness aged about eight years. Therefore, his evidence cannot be believed. To crown this all, what we find is that the learned Sessions Judge has also not accepted the evidence of this witness. 12. Witness Nanaji (P.W. 4) has stated in his evidence that on that day he had gone to his field and he returned from his field at about 10.00 a.m. to 11.00 a.m. and he saw the accused where Ratnabai died at about 11.00 a.m. To emphasize his statement, he has further stated that the accused was wearing a baniyan and lungi. But in his cross-examination, his claim to have seen the appellant has been totally shattered. He admitted that he saw the accused from the distance of about 300 to 400 ft. and the accused was cutting grass. There is also evidence of Mangesh (P.W. 7) who has stated that the accused was going to his field. It is also borne out by the evidence on record that the accused was in his field. He admitted that he saw the accused from the distance of about 300 to 400 ft. and the accused was cutting grass. There is also evidence of Mangesh (P.W. 7) who has stated that the accused was going to his field. It is also borne out by the evidence on record that the accused was in his field. This witness has also admitted saying that it is true that if any person stands in the field of Dago Mankar the field of Kawalu is not visible. So, accepting even the fact that the accused was in the filed on that day in the morning, it is very difficult to say that the accused was the perpetrator of crime. It is clear from the evidence that the accused was working in his field. There is no evidence that the accused was seen in the field where dead body of Ratna was lying. As stated earlier, there is no evidence nor any witness has claimed that the accused was actually seen while committing assault on the victim in the field. No incriminating circumstance was available to prosecution so as to indicate even involvement of the appellant in commission of the crime. In the background of this, mere presence of the appellant in the field on that day by itself is not sufficient even to raise suspicion that the accused-appellant was the person who committed the crime. 13. Much has been made by the learned A.P.P. about the motive for the accused to commit the crime. It is, no doubt, true that motive plays vital rule in pointing out complicity of the accused in commission of crime; but, in the case before hand, the factum of motive is not at all established on the evidence on record. We have already referred to the claim of the witnesses who stated about this. We have pointed out that the witnesses have made improvements in that regard in their evidence before the Court. That apart, as regards the incident that has been taken place, there is no consistent version and no report has been made to the police in respect of the incident. Therefore, it has to be said that prosecution has failed even on the point of motive. 14. Having regard to the evidence on record, as discussed earlier, we have found that prosecution has failed to establish that the appellant committed the offence. Therefore, it has to be said that prosecution has failed even on the point of motive. 14. Having regard to the evidence on record, as discussed earlier, we have found that prosecution has failed to establish that the appellant committed the offence. The circumstances relied upon by prosecution are not clinchingly established. In addition to that, the circumstances and particularly, presence of the appellant on the day of occurrence in the field is not by itself sufficient to connect the appellant with the commission of crime. Even that is not sufficient to raise suspicion about involvement of the appellant in commission of the crime. That apart, it is well settled that suspicion howsoever strong, cannot take place of proof. No person could be indicted only on the basis of suspicion howsoever strong it may be. Therefore, the finding by the learned Sessions Judge holding the appellant guilty for the offence cannot sustain. Prosecution has utterly failed to bring home guilt of the accused. The order of conviction and sentence passed against the appellant will have to be set aside. The appellant is found to be not guilty. He deserves to be acquitted. The appeal will have to be allowed. Hence, the order. ORDER The appeal is allowed. The order of conviction and sentence passed against the appellant is set aside. The appellant is acquitted of the offences charged with. He be set at liberty, if not required in any other matter. If any amount of fine is paid by the appellant, the same should be refunded to him. Appeal allowed. -----