Judgment R. C. CHAVAN, J, J. ( 1 ) BEING aggrieved by the acquittal of the respondents recorded by the learned Additional Sessions Judge, Bhandara, for offences punishable under sections 376 and 302 read with section 34 of the Penal code, the State and the original complainant have preferred these appeal and revision. ( 2 ) FACTS, which led to prosecution of the respondents, are as under : ( 3 ) COMPLAINANT Ganpats daughter Mirabai, aged about 16 years, had gone to the field on 6-2-1989 at about 8 a. m. for harvesting Lakhori crop. She had a sickle and her lunch with her. Ganpat himself had gone to Tumsar. When he returned at about 2 p. m. , one Bholaram informed him that Mirabais dead body was lying in the field. Ganpat and other villagers rushed to the spot and found the dead body with number of injuries. On a report of Ganpat, police registered an offence and started investigation. ( 4 ) THE investigation revealed that the respondents/accused had taken contract of cutting of Babul tree for one Balkrushna and had kept their bicycle under the tree in the field of Ganpat. Ganpat suspected that respondent No. 1 balchand might be involved and hence enquiries were made by police with balchand, which revealed that respondent No. 2 also was involved in the offence. Eventually, two villagers - Hariram and Punabai - conveyed to the police their eye-witness account of the two respondents assaulting the victim, inviting her and doing her to death. The police had sought help from dog tracking unit in order to reach the miscreants. In the course of investigation, the police arrested the accused, seized incriminating articles, caused samples to be taken, performed necessary panchanamas as a part of investigation, sent incriminating articles to the Forensic Science Laboratory and on completion of investigation, chargesheeted the accused. The learned Judicial Magistrate First Class, bhandara, committed the case to the Court of Session. ( 5 ) THE learned Additional Sessions Judge, Bhandara, to whom the case was assigned, charged both the respondents of the offences punishable under Section 376 and 302 read with Section 34 of the Penal Code. Both of them pleaded not guilty and hence were put on trial. In its attempt to bring home the guilt of the accused, the prosecution examined in all 12 witnesses. Both of them pleaded not guilty and hence were put on trial. In its attempt to bring home the guilt of the accused, the prosecution examined in all 12 witnesses. The defence of the accused was that of denial. The accused too examined one witness in defence. Upon consideration of evidence tendered before him, the learned Additional sessions Judge (Shri S. K. Shinde) held that the prosecution failed to prove complicity of the accused in rape or murder of Mirabai and, therefore, acquitted both the respondents by judgment dated 31-12-1990. ( 6 ) THE original complainant victims father Ganpat preferred a criminal revision petition before this Court. The learned Single Judge of this Court, by judgment dated 24-3-1992, remanded the matter, with direction to re-hear the parties in the light of the observations made in the order of remand. Accordingly, shri P. B. Jadhav, Additional Sessions Judge, Bhandara, to whom the case was assigned, re-heard the parties and held that the prosecution had failed to prove involvement of the accused in the crime. He, therefore, proceeded to acquit them. Aggrieved thereby, the State has preferred this appeal and the original complainant has preferred revision petition. ( 7 ) WE have heard Shri A. G. Mujumdar, the learned Additional Public prosecutor for the State, and Shri V. G. Mohril, the learned counsel for the revision - petitioner. Both of them urged that the learned Trial Judge should not have rejected the evidence tendered by the prosecution. Instead of taking up of minute scrutiny of the matter, the learned Trial Judge ought to have taken a broad view based on probabilities and held that the complicity of respondents was duly established by the prosecution. With the help of both the counsel, we have, therefore, gone through the entire evidence and re apprised the same in order to find out whether the conclusions drawn by the learned Trial Judge were unwarranted. ( 8 ) VICTIMs father Ganpat was examined as PW1. He stated that on 6-2- 1989, his daughter had gone to the field with basket, sickle and tiffin. He had proceeded to Tumsar for some work and returned at about 1. 30 p. m. , when one bholaram came and told him that his daughter was lying dead in his field with injuries. This Bholaram does not seem to have been examined by the prosecution. He had proceeded to Tumsar for some work and returned at about 1. 30 p. m. , when one bholaram came and told him that his daughter was lying dead in his field with injuries. This Bholaram does not seem to have been examined by the prosecution. P. W. 1 Ganpat stated that he went to the field and saw dead body of his daughter. He suspected that somebody must have attempted to rape Mirabai and might have murdered because she offered resistance. He also saw a bicycle bearing name "c. T. Yelne" under a Babul tree. At about 3 p. m. , accused No. 1 balchand came to take bicycle and was questioned by Ganpat and others, when balchand told them that he had kept the bicycle at about 9 to 10 a. m. , and that he and accused Sudhakar had been to the field. Ganpat, therefore, suspected that balchand and Sudhakar may be culprits. Naming Balchand as a suspect, he gave report, which is at Exhibit 43. ( 9 ) THE police thereupon visited the spot and performed inquest panchanama, which is at Exhibit 19. This panchanama would show that there were several bleeding injuries on the person of the victim and these injuries were caused by means of sharp edged weapon. They had also noticed bleeding from the private parts. This panchanama was witnessed by PW 6 Bhojram. ( 10 ) THE police also drew up panchanama of the spot and among other things, seized a piece of cloth of vest, vide panchanama at Exhibit 54. Later in presence of this very witness, on 8-2-1989, accused No. 2 Sudhakar was arrested and arrest panchanama was drawn up vide Exhibit 55. A torn vest, which accused sudhakar was wearing, was seized vide panchanama at Exhibit 56. This panchanama mentions that the vest had a 5 inches x 3 inches hole on its lower side back portion. It was also observed in the panchanama that a piece of vest cloth seized at the spot tallied with the hole in the vest. These items were sent to the Forensic Science Laboratory by P. W. 11 P. S. I. Tripathi vide requisition at exhibit 35. In this requisition, the piece of vest is numbered as Exhibit 1 and the torn vest is Exhibit 12. The report of the Forensic Science Laboratory in respect of these items is at Exhibit 71. These items were sent to the Forensic Science Laboratory by P. W. 11 P. S. I. Tripathi vide requisition at exhibit 35. In this requisition, the piece of vest is numbered as Exhibit 1 and the torn vest is Exhibit 12. The report of the Forensic Science Laboratory in respect of these items is at Exhibit 71. It shows that article No. 1, the torn piece of vest, did not have any stains of blood. The torn vest had some stains of human blood, but the group could not be detected, since the results were inconclusive. Blood group of victim Mirabai was apparently "o", as could be seen from the results in respect of Article at serial No. 10 in the report at Exhibit 71. ( 11 ) BOTH the learned APP for the State and the learned counsel for the revision petitioner submitted that this torn vest unmistakenly points to complicity of accused Sudhakar in rape and murder. We are afraid that such a conclusion is not warranted from the facts established. Even if it is presumed for a while that a piece of vest was indeed seized at the spot, it cannot be forgotton that the piece did not have any stains of blood. Further, the seizure of vest itself from accused sudhakar, as deposed by PW 6 Bhojram and PW 11 PSI Tripathi is suspicious. It may be recalled that PW 1 Ganpat had categorically indicated involvement of accused Balchand in his report at Exhibit 43. His testimony would also show that he had come to know that accused No. 2 Sudhakar was also with accused balchand. Thus, Ganpat suspected complicity of both of them. If this was so, there would be no reason for the police not to know of involvement of respondent no. 2 on the day the report was lodged, that is 6-2-1989 itself. ( 12 ) ACCUSED Balchand was arrested on 6-2-1989 itself at 11. 45 p. m. vide panchanama at Exhibit 23. Seizures made from accused Balchand were proved by PW 6 Bhojram at Exhibit 22. ( 13 ) POLICE had sought help from dog squad and PW 10 Gurunarayan, trainer of dog Vijay, states about the dog tracking exercises carried out by the police. 45 p. m. vide panchanama at Exhibit 23. Seizures made from accused Balchand were proved by PW 6 Bhojram at Exhibit 22. ( 13 ) POLICE had sought help from dog squad and PW 10 Gurunarayan, trainer of dog Vijay, states about the dog tracking exercises carried out by the police. It seems that the dog was made to sniff sickle found at the spot, which was undisputedly the property of the victim and had nothing to do with the accused. According to the witness, the dog led the party to the house of accused sudhakar. This happened on 7-2-1989 in the afternoon or evening. Thus, by the evening of 7-2-1989, accused Sudhakar should also have an idea that finger of suspicion was being pointed to him by PW 1 Ganpat as also the dog tracking evidence. Yet PW 11 Ram Abhilas wanted the Court to believe that on 8-2-1989, accused No. 2 was arrested and was wearing a vest, which was torn on the back and which was seized under the seizure memo at Exhibit 56. ( 14 ) IN respect of this seizure memo, PW 5 Bhojram had a slightly different story to tell in the cross-examination. He stated that both the accused were arrested on 6-2-1989 itself, the clothes of victim were seized on 7-2-1989 and that he was not called after 7-2-1989. Thus, first, Bhojram does not corroborate pw 11 Ram Abhilas; secondly, it is inconceivable that the accused would continue to sport a blood stained vest on his body for almost two days after the incident and would walk in the Police Station wearing that vest. The evidence of pw 11 Ram Abhilas leaves us clueless as to why accused No. 2 Sudhakar could not be arrested till 8-2-1989. Was is that involvement of accused was not indicated till then? or was accused No. 2 absconding? It would be safe to conclude that even after involvement of accused Sudhakar was indicated, the police simply allowed accused Sudhakar to roam freely and then walk in the police Station with a blood stained vest having a big hole on the back, just to provide wanted evidence to the police. While PW 11 PSI Ram Abhilas stated in para 16 of his deposition that he drew arrest panchanama and then seized vest, the timings mentioned in Exhibits 55 and 56 are exactly opposite. While PW 11 PSI Ram Abhilas stated in para 16 of his deposition that he drew arrest panchanama and then seized vest, the timings mentioned in Exhibits 55 and 56 are exactly opposite. ( 15 ) THE learned counsel for the revision petitioner submitted that there may not be anything unusual in a person wearing a torn vest, given the poverty levels in village population. One can definitely understand that a person may continue to wear such a vest even if it has a small hole. But here the hole was 5 inches x 3 inches, on the prosecutions own reckoning. It is difficult to imagine that any person in his senses would continue to wear such a vest. ( 16 ) FURTHER, the conduct attributed to accused No. 2 by the prosecution belied the story of a vest with a hole being recovered from the person of accused no. 2 Sudhakar. PW 11 Ram Abhilas states that on 8-2-1989, when accused No. 2 Sudhakar was in custody, he agreed to lead the police to a place in his house where he had kept the clothes, which he wore at the time of incident. PW 7 tanba has attested this memorandum and the resultant seizure at Exhibits 59 and 57. The memorandum and panchanama recite that the accused wanted to produce washed clothes from his house and accordingly describes the clothes as those which were washed. Now a person, who takes precaution of washing the pant, shirt, and even the underwear, which he was wearing, cannot be believed to have allowed a blood stained vest to be on his body. Therefore, the entire story about seizure of vest with a hole and seizure of a piece of cloth from the spot, matching the hole, appears to be a cooked up story. ( 17 ) THE learned Additional Sessions Judge deciding the case after remand had the benefit of seeing the articles seized in the case. In para 30 of his judgment, he observed that Article No. 7 vest had a rectangular tear. He observed that if the vest was pulled in the course of scuttle, it would not have produced a rectangular tear. The tear would extend the edge of the vest and would not stop in the middle. In para 30 of his judgment, he observed that Article No. 7 vest had a rectangular tear. He observed that if the vest was pulled in the course of scuttle, it would not have produced a rectangular tear. The tear would extend the edge of the vest and would not stop in the middle. After duly considering the elasticity of the hosiery, the learned Trial judge found it difficult to accept that a scuffle would produce a rectangular tear in the vest and we see no reason to differ from him. ( 18 ) THUS, the circumstance about vest and a piece of cloth sought to be used to connect accused No. 2 Sudhakar to the crime, cannot be said to have been established. ( 19 ) AS regards the other clothes seized form accused No. 2 Sudhakar, it may be seen that his clothes were sent to the Forensic Science Laboratory at serial Nos. 13 to 15 vide requisition Exhibit 35. They are numbered as Exhibits 14 to 16 in the report of the Laboratory at Exhibit 71. Articles 15 and 16, namely an underwear and a torn shirt, were stained with blood group "o". Article No. 17 was in fact sample of blood of accused No. 2 Sudhakar, but the Laboratory found that the results were inconclusive. While remanding the matter to the Trial Court, the learned Single Judge of this Court had observed in paras 13 and 14 of the judgment that finding of stains of blood group "o" - the victims blood group - on a piece of vest and pyjama ought to have been considered by the Trial court. From the requisition at Exhibit 35 and the report of the Laboratory at exhibit 71, it appears that there was no blood on the piece of cloth seized from the spot and the pyjama in fact belonged to accused Balchand and not to accused sudhakar. We feel that had this factual position been brought to the notice of the learned Single Judge hearing the revision petition, the trouble of re-hearing the whole matter could have been avoided. ( 20 ) IN the absence of evidence about blood group of accused Sudhakar, finding of stains of blood group "o" on his shirt or underwear, may have to be ignored. ( 20 ) IN the absence of evidence about blood group of accused Sudhakar, finding of stains of blood group "o" on his shirt or underwear, may have to be ignored. We are pained to note that even after the receipt of inconclusive report from the Laboratory, the Investigating Officer did not think it necessary to take any steps to have a fresh blood sample of the accused taken, if necessary, with the permission of the Court, and have blood grouping done. Had this been done, the whole confusion could have been avoided. The net result, however, is that there is nothing to connect respondent No. 2 Sudhakar to the crime. ( 21 ) AS for the evidence of dog tracking where the police dog led the police party to the house of the accused, suffice it to say that the learned Trial Judge has comprehensively dealt with this aspect is para 30 of his judgment. He has rightly concluded that the evidence of dog tracking cannot be of much importance and that since the police party knew of complicity of accused, the dog tracking was a superfluous exercise. ( 22 ) THIS takes us to the question of presence of accused No. 1s bicycle in the field. This has been duly explained by PW 2 Balkrushna. Balkrushna stated that he had engaged accused No. 2 Sudhakar to cut a tree standing in the field of gondu Gaidhane. The witness, who was examined by the police to indicate that the accused had been to the concerned field, was declared hostile, because he claimed that he had not stated that the vest was torn or accused No. 1 Balchand was wearing a pyjama. Otherwise his evidence makes presence of bicycle of accused in the field natural. Further, while Ganpat states that accused No. 1 balchand had come to take bicycle, PW 2 Balkrushna states that accused No. 2 sudhakar went to bring his bicycle, making the circumstance relating to finding of bicycle shaky. ( 23 ) THE learned Additional Public Prosecutor sought to rely on injuries found on the person of accused No. 2 Sudhakar as a circumstance to indicate his complicity in the incident. This injury certificate is at Exhibit 66 and 52, which shows that accused Sudhakar had two small abrasions on the posterior aspect of his elbow and one abrasion to the tip of the left great toe. This injury certificate is at Exhibit 66 and 52, which shows that accused Sudhakar had two small abrasions on the posterior aspect of his elbow and one abrasion to the tip of the left great toe. According to the doctor, who was not examined, the injuries could have been caused by rubbing on hard and rough object. The location of injuries on the posterior aspect of elbow and the tip of left great toe themselves rule out the possibility of their having been inflicted in the course of struggle while overpowering the victim. It would be difficult for a victim to inflict injuries on the posterior aspect of elbow. Also it is inconceivable that in committing a sexual act, the posterior aspect of elbow would get rubbed against any surface. We could have understood had the posterior aspect of elbow of victim been so injured because she would be lying on the ground. But injury to posterior aspect of elbow of a rapist is simply beyond imagination. ( 24 ) THUS, the circumstances sought to be relied on by the learned additional Public Prosecutor were not individually established and cumulatively they do not point to complicity of the accused in the crime. ( 25 ) THE prosecution had sought to tender evidence of two eye witnesses in this case. They are PW 3 Hariram and PW 4 Punabai. The evidence of these witnesses has to be rejected outright because they did not disclose about the incident to anyone for about two months after the incident. Further, as observed by the learned Trial Judge, Hariram does not state about the presence of Punabai and Punabai does not state having spotted Hariram while watching the incident. Punabai states that she knows Hariram and claimed that Hariram was working as agricultural labourer with anybody who used to engage him. Hariram claims to be a vegetable vendor. His version that he saw the entire incident so coolly, itself makes his testimony unreliable. Punabai had denied the suggestion that before the incident, she used to reside with Ganpat himself. ( 26 ) TO disprove the story of Hariram, the defence had examined one mahadeo. In order to make his presence natural, PW 3 Hariram had stated that he was going to village Kusari from his village Roha to get the hub of the wheel of the bullockcart prepared from the carpenter of village Kusari. ( 26 ) TO disprove the story of Hariram, the defence had examined one mahadeo. In order to make his presence natural, PW 3 Hariram had stated that he was going to village Kusari from his village Roha to get the hub of the wheel of the bullockcart prepared from the carpenter of village Kusari. DW 1 Mahdeo, carpenter of village Kusari, stated that Hariram did not come to him for any such work. In any case, Hariram admitted that though this work could be done in his own village Roha, he still came to village Kusari, making his presence extremely unnatural and testimony thoroughly unreliable. ( 27 ) IN view of all this, we find that the learned Trial Judge has meticulously and correctly re-appreciated the entire evidence, bearing in mind the directions given by the revisional Court. The conclusions drawn by him are not only plausible, but possibly the only conclusion that could be drawn from the evidence tendered. We, therefore, see no merit in the appeal filed by the State as also in the revision petition filed by the original complainant. ( 28 ) THE appeal and the revision petition are, therefore, dismissed. The bail bonds, if any, furnished by the respondents shall stand cancelled. Appeal dismissed.