JUDGMENT Sheela Khanna, J. Appellant/accused has filed this appeal being aggrieved by the impugned judgment dated 19-1-2000 rendered by the Special Judge, Bhind in Special Case No. 306/97, whereby the accused has been convicted u/s 376 of Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine, he is further directed to suffer six months rigorous imprisonment. Undisputed facts of the case are that Guddi aged around 2-3 years is daughter of complainant Munnalal (PW 1). Ramkaran (PW 4) is brother-in-law, Ramprasad (PW 8) is father-in-law and Munnibai (PW 9) is wife of complainant Munnalal (PW 1). Briefly narrated the case of the prosecution is, that on 7-6-1997 in night, Munnalal (PW 1) was sleeping on the door of his house along with his daughter Guddi (hereinafter referred to as "girl"). His wife was sleeping inside the house. Next day, on 8-6-1997, when Munnalal got up in the morning at 5-30 O'clock, he found that the girl Guddi was not there. He searched for her. Chandrabhan Jatav (PW 10) came there after answering the call of nature. Chandrabhan told Munnalal that his daughter is lying on the hillock and was weeping. Thereafter, the father-in-law of the complainant namely Ramprasad (PW 8) brought the girl by lifting her. Munnalal and others noticed that the area of vagina and anus of the girl were badly torn and the bleeding was oozing. Munnalal (PW 1) along with the villagers went to the hillock to see the place where the girl was found lying. Near the spot, the accused was found sleeping keeping his Baniyan and Bushirt underneath his head. The blood stains were found in his underwear. On enquiry, the accused confessed that he committed "Bura Kaam" with the girl under the intoxication of liquor. The blood-stains were also noted by the complainant Munnalal and villagers on the Baniyan and Bushirt of the accused. The accused was thereafter beaten by the villagers for his act. Thereafter, Munnalal took his girl to the police station Malanpur and lodged the written report (Ex.P/1). The Investigating Officer M.S. Rawat reached on the spot and seized the Baniyan of the girl and the towel on which blood stains were found. The spot-map (Ex.P/3) was prepared. The blood was collected in a packet from the spot vide seizure-memo (Ex. P/4). Thereafter, Munnalal took his girl to the police station Malanpur and lodged the written report (Ex.P/1). The Investigating Officer M.S. Rawat reached on the spot and seized the Baniyan of the girl and the towel on which blood stains were found. The spot-map (Ex.P/3) was prepared. The blood was collected in a packet from the spot vide seizure-memo (Ex. P/4). The girl was sent for medical examination. Dr. Smt. M. Sharma (PW 6) medically examined the girl and found - IIIrd degree perineal tear, the vagina was lacerated, blood stains vaginal discharge was present, Hymen and anus were vertically torn. The vaginal swab and slide were prepared, sealed and handed over to the police. On the same day on 8-6-1997, the accused was arrested and was sent for medical examination. Dr. Ravindra Chaudhery (PW7) examined the accused and found - contusion with swelling on posterior medial aspect in middle part of his right forearm, lacerated wound on posterior medial aspect of middle part of right forearm, contusion with swelling on posterior aspect of lower part of left forearm, contusion with swelling on left sub scapular region, contusion with swelling on right scapular region, contusion with swelling on right sub scapular region, abrasion below the injury on right side of scapular region, abrasion over right leg and a contusion on right hip, vide his report (Ex.P/8). The doctor also opined that there is nothing suggestive that the person under examination is incapable to perform intercourse. The semen slides of the accused were prepared, sealed and handed over to the police. His pant was seized and handed over to the police. All the seized articles were sent to Sagar for FSL examination. According to FSL report (Ex.P/10) the blood stains were found on the seized articles and semen stains were found on a towel, swab and slides of the girl and on the slides of the accused. However, semen stains were not found on the Baniyan of the girl and on the alleged clothes-shirt, Baniyan, underwear and pant of the accused. The statements of the witnesses were recorded u/s 161 of Criminal Procedure Code. After investigation, accused was charge-sheeted. However, semen stains were not found on the Baniyan of the girl and on the alleged clothes-shirt, Baniyan, underwear and pant of the accused. The statements of the witnesses were recorded u/s 161 of Criminal Procedure Code. After investigation, accused was charge-sheeted. After committal of the case, the trial Court framed charge against the accused u/s 376 of Indian Penal Code and in the alternative u/s 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, as the girl was member of scheduled caste whereas the accused was Brahamin by caste. The accused abjured his guilt. At the trial, the prosecution examined in all eleven witnesses. No witness has been examined by the accused in defence. However, the accused denied all the circumstances appearing against him in the statements of the witnesses. After conclusion of the trial and hearing the arguments on both the sides, the learned trial Court held that the offence u/s 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act is not proved beyond doubt and acquitted the accused of the offence. But the trial Court held that the prosecution has successfully proved that the accused has committed rape on the girl and therefore convicted him u/s 376 of Indian Penal Code and sentenced him as mentioned aforesaid. Learned counsel appearing for the appellant/accused has contended that there is no direct evidence against the accused and the prosecution has failed to prove that the accused had made confessional statement before the witnesses and that the recovery of the alleged blood stained clothes from the accused is also not proved. It is submitted that there is no evidence against the accused to connect him with the alleged offence and only on the basis of conjectures and surmises, the accused has been convicted by the trial Court. Per contra, the argument of learned Public Prosecutor appearing for the respondent/State is that the accused has made an extra-judicial confession before the witnesses and the blood stained clothes were recovered from him and therefore, the learned trial Court has rightly convicted the accused. It is submitted that the rape is committed by the accused on the girl of 2-3 years of age and therefore, sentence of life imprisonment awarded to him, by the trial Court is proper. It is submitted that the rape is committed by the accused on the girl of 2-3 years of age and therefore, sentence of life imprisonment awarded to him, by the trial Court is proper. We have heard the learned counsel for the parties and perused the entire evidence on record and also the impugned judgment. Before we discuss the evidence of the witnesses, at the outset, it may be mentioned that this is indeed a gruesome offence of rape committed on a girl of 2-3 years of age. This Court is also cautious and careful about the observations made by the Apex Court in the case of Kashmira Singh Vs. State of Madhya Pradesh, that "it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law." Let us, examine the evidence on record. According to the version of complainant Munnalal (PW 1) on the day of occurrence, in night, he was sleeping outside his house and his daughter Guddi was sleeping on a nearby cot. When he got up in the morning, he found that the girl was not on the cot. Meanwhile, Chandrabhan Jatav (PW 10) came and asked as to where is his daughter Guddi. He told him (Chandrabhan) that she might be sleeping inside. Then, Chandrabhan told him that Guddi is lying on the hillock. Meanwhile, the father-in-law of the complainant Ramprasad (PW 8) came and brought Guddi by lifting her. Munnalal (PW 1) further stated that he caused her daughter to sit on a stone and when he lifted the girl he found blood at the place where she sat. At that time, other people of the village also assembled. He noted that the blood was oozing from her vagina and that the place from vagina to anus was torn. The witness further stated that then he went to answer the call of nature to hillock where he saw that accused Kailash was lying on a stone slab. When he went near the accused, he saw that his Bushirt and pant were stained with blood. Then; he came back and the villagers told him to report. Thereafter, he along with Ramkaran went to the police station and lodged the report (Ex.P/1). When he went near the accused, he saw that his Bushirt and pant were stained with blood. Then; he came back and the villagers told him to report. Thereafter, he along with Ramkaran went to the police station and lodged the report (Ex.P/1). He stated that the underwear and Baniyan of the girl were seized by the police vide seizure-memo (Ex.P/2). In cross-examination in para 8, this witness stated that the accused was sleeping on a slab in the Patore and that there was no talk with the accused and he came back leaving the accused in a sleeping state. In para 7 of his statement, the witness has stated that the accused was wearing Pant and Bushirt and he was having a bed sheet over his legs. Ramkaran (Pw 4) has stated that on 8-6-1997 at 6 A.M. when he got up and came out from his house he heard noise as to where is Guddi. Meanwhile, Chandrabhan (PW 10) came and informed that Guddi is lying in the Khaliyan and is weeping. Then, his father Ramprasad (PW 8) went and brought the girl. He saw that the vagina and anus of the girl were torn and blood was oozing. Thereafter, he along with 10-12 persons of the village went to see the place where Guddi was lying. Near that place, there was a Patore in which the accused was sleeping, keeping his clothes underneath his head. The witness further stated that he caused the accused to get up and found that the clothes kept underneath his head were stained with blood. He stated that when he asked the accused then he admitted that he committed a mistake. Then, his brother-in-law went to lodge the report. Ramprasad (PW 8) has deposed that he was going to answer the call of nature at around 5 O'clock in the morning. Chandrabhan (PW10) was also going to ease himself. Chandrabhan told him that a child is lying in the Khaliyan. Then, he and Chandrabhan went to Khaliyan and found that the child was a girl of his son-in-law Munnalal. He also stated that both the vagina and anus of the girl were torn and blood was oozing. He stated that in the nearby Patore, the accused was lying and his underwear and Baniyan were stained with blood. He stated that the accused Kailash admitted that he had committed a mistake. He also stated that both the vagina and anus of the girl were torn and blood was oozing. He stated that in the nearby Patore, the accused was lying and his underwear and Baniyan were stained with blood. He stated that the accused Kailash admitted that he had committed a mistake. Munnibai (PW 9) has stated that the girl Guddi was sleeping with his father and in the morning she was not found. She stated that his father Ramprasad (PW 8) brought the girl by lifting her from the Khaliyan of Balram. She also stated that his father told her that the girl was found lying in the Khaliyan of Balram and that her underwear and Baniyan were stained with blood. Chandrabhan (PW 8) states that he was going to answer the call of nature when on way Ramprasad (PW 8) met him near mustard field (Khaliyan). Ramprasad asked him as to who is that girl lying in the Khaliyan as the girl was lying overturned. Then, he came to the house of the complainant. Thereafter, Ramprasad also came and brought Guddi. But then the witness changed his statement and stated that he did not see Guddi. This witness has been declared hostile by the prosecution. Dr. Smt. M. Sharma (PW 6) was posted as Asstt. Surgeon in the District Hospital, Bhind, at the relevant time. She has deposed to have examined the girl Guddi and found IIIrd degree perineal tear. The vagina was lacerated and blood stains and vaginal discharge was present and her hymen and anus were torn. On the basis of this examination, the doctor opined that it cannot be denied that Vyabhichar was done with the girl. The vaginal swab and slides were prepared, sealed and handed over to the police. She stated that a towel was also seized and handed over to the police. Her report is Ex.P/7. From the evidence of the above prosecution witnesses, it is clear that the girl was around 2-3 years of age and from her medical report (Ex.P/7) and from the evidence of the witnesses it is clear that her vagina and anus were torn and the blood was oozing from them. Dr. Smt. M. Sharma (PW 6) has also stated that the blood stains vaginal discharge was present. All this evidence is suggestive of the fact that the rape was committed with the girl. Dr. Smt. M. Sharma (PW 6) has also stated that the blood stains vaginal discharge was present. All this evidence is suggestive of the fact that the rape was committed with the girl. Now, the crucial question for consideration is as to whether the accused had committed rape on the girl ? It is clear from the evidence of the prosecution case that there is no eye-witness of the incident. The prosecution has relied upon following circumstances to connect the accused with the alleged offence:-- (i) The extra-judicial confession made by the accused before the prosecution witnesses; (ii) The recovery of the blood-stained clothes from the accused; (iii) The accused was found sleeping in the Patore which is nearby the place where the girl was found lying on the hillock. The learned trial Court relying upon the above three circumstances, has held that the accused has committed the offence of rape on the girl. The learned defence counsel took us through the evidence of the prosecution witnesses and argued that the prosecution has utterly failed to prove all the above three circumstances. Let us consider these three circumstances. Circumstance No. 1-- According to the prosecution story, the accused has made confessional statement before the witnesses Munnalal (PW 1), Ramkaran (PW 4), Ramprasad (PW 4) and Chandrabhan (PW 10). But Munnalal (PW 1) has not stated anything about the confession made by the accused. On the contrary, in para 8 of his statement, he has clearly stated that the accused was sleeping in the Patore and he had no talk with him and he came back leaving the accused in a sleeping state. Nowhere in his statement, this witness disclosed about any confession by the accused. Chandrabhan (PW 10) is an independent witness and even he does not state about any confession made by the accused. This witness has been declared hostile. But in cross-examination by the P.P., he has not supported this fact that the accused made any confessional statement. Ramkaran (PW 4) and Ramprasad (PW 8) are brother-in-law and father-in-law respectively of the complainant. These witnesses have simply stated that when they enquired from the accused he said that he committed a mistake. Except this, these witnesses have not stated anything. These witnesses have not made it clear as to what was the confession made by the accused and about which mistake he was telling to them. These witnesses have simply stated that when they enquired from the accused he said that he committed a mistake. Except this, these witnesses have not stated anything. These witnesses have not made it clear as to what was the confession made by the accused and about which mistake he was telling to them. It is pertinent to note that these witnesses also disclosed that complainant Munnalal (PW 1) and other witnesses of the village were also present but Munnalal (PW 1) does not state about any confessional statement by the accused and no other witnesses of the village have been examined before whom the confession was made by the accused. The statements of Ramkaran (PW 4) and Ramprasad (PW 8) regarding alleged confession are not reliable and trustworthy in view of the fact that no independent witness and even the complainant Munnalal has not corroborated the fact of confession by the accused. Also Ramkaran (PW 4) has admitted in para 13 that he and the villagers had beaten the accused and that the accused sustained several injuries and blood was oozing from his injuries due to Marpeet by them. In the written report (Ex.P/1) lodged by the complainant, also this fact has been mentioned that the accused was beaten by the villagers. Dr. Ravindra Chaudhery (PW 7) has medically examined the accused and found as many as nine injuries on different parts of the body of the accused as per his report (Ex.P/8). These injuries have been discussed above in the statement of Dr. Ravindra Chaudhery (PW 7). Therefore, it is possible and probable that because the accused was bitterly beaten by the witnesses and by the villagers therefore under pressure and force or due to fear he could have said that he committed mistake. The said confession is neither in clear words, nor appears to have been made voluntarily nor any independent witness has supported. Therefore, no reliance can be placed on the alleged confessional statement. Circumstance No. 2 Another circumstance against the appellant as alleged by the prosecution and as relied upon by the trial Court is that recovery of blood stained clothes-shirt, Baniyan and underwear from the accused, who was wearing these clothes at the time of incident. The seizure-memo of these clothes is found along with the charge-sheet. But no witness has proved the seizure memo. The seizure-memo of these clothes is found along with the charge-sheet. But no witness has proved the seizure memo. The seizure-memo is alleged to have been prepared by the ASI M.S. Rawat and the two independent witnesses of the seizure-memo are Phool Singh and Vijay Singh. But all the three witnesses have not been examined by the prosecution. ASI M.S. Rawat is said to be dead but SDOP Santosh Gaur (PW 11) has been examined who could have proved at least the signature of M.S. Rawat in the seizure-memo. But even he has not stated anything about the recovery of these clothes from the accused. Thus, recovery of these clothes remained un-proved. It is pertinent to mention that at the time of examination of the witnesses before the trial Court, the alleged seized clothes were neither produced before the witnesses nor exhibited by the prosecution. According to the prosecution, when the accused was sent for medical examination, Dr. Ravindra Chaudhery (PW 7) has seized the pant of the accused and handed over it along with sealed packet of slides to the police. But Dr. Ravindra Chaudhery (PW 7) has nowhere stated in his statement before the trial Court that he got recovered the pant of the accused and handed over it to the police. Even the alleged seized pant has not been produced at the time of examination by the said doctor. So far as ocular testimony is concerned, Munnalal (PW 1) in his statement in para 7 has stated that he noticed blood stains on the Bushirt and pant of the accused which he was wearing at that time when he was sleeping in the Patore. But in his written-report (Ex.P/1) he has given a different statement that the accused was sleeping and his Baniyan and Bushirt were kept underneath his head. In the report (Ex.P/1), it is also mentioned that the blood-stains were found in his underwear also but before the trial Court he has not stated anything about it. Similarly he has not mentioned in his Court statement about having found any blood-stains on the Baniyan of the accused. Ramkaran (PW 4) in his examination-in-chief has simply stated that the accused was sleeping and his clothes were underneath his head. He has not made it clear as to what were the clothes kept by him underneath his head (Sirhana). Similarly he has not mentioned in his Court statement about having found any blood-stains on the Baniyan of the accused. Ramkaran (PW 4) in his examination-in-chief has simply stated that the accused was sleeping and his clothes were underneath his head. He has not made it clear as to what were the clothes kept by him underneath his head (Sirhana). In cross-examination in para 5, he has simply mentioned about the underwear of the accused on which blood stains were found. Ramprasad (PW 8) in para 2 has stated that blood was found on the Baniyan and underwear of the accused. He does not state about the pant and Bushirt of the accused whereas Munnalal (PW 1) has disclosed in his statement about only Bushirt and pant having stained with blood. Chandrabhan (PW 10) is an independent witness but he has not stated to have seen the accused on the spot nor he disclosed about the clothes of the accused. Thus, the ocular testimony of the three witnesses Munnalal (Pw 1), Ramkaran (PW 4) and Ramprasad (PW 8) who are closely related, is full of inconsistencies and infirmities. Thus, the alleged recovery of blood stained clothes of the accused is also doubtful. Circumstance No. 3. The next circumstance as alleged by the prosecution is that the accused was found sleeping in a Patore on a slab which is nearby the place of incident. The learned defence counsel has vehemently argued and submitted that the story of the prosecution is highly unnatural because after committing said offence of rape the accused would not go and sleep in the nearby Patore and that too with blood-stained clothes but would like to run away from the spot. The argument is not baseless but has substance. It is highly unnatural that after committing rape on a girl and when the clothes of the accused became dirty with the blood, he would go in the nearby Patore and quietly slept there. In such circumstances, the natural conduct appears to be that a criminal would try to escape his identity and run away from the spot without keeping the said incriminating articles like blood stained clothes. In such circumstances, the natural conduct appears to be that a criminal would try to escape his identity and run away from the spot without keeping the said incriminating articles like blood stained clothes. The learned trial Court in para 19 of the impugned judgment has observed that in the report (Ex.P/1), the complainant Munnalal (PW 1) has mentioned that the accused has confessed to commit the offence under the influence of the liquor and therefore it is possible that under the same influence of liquor, the accused could not escape and went in the Patore and slept there. But Munnalal (PW 1) in his statement before the trial Court has not disclosed any such confession made by the accused. He has neither stated that the accused confessed to have committed the offence under the influence of liquor nor disclosed that the accused was found under the influence of liquor. Even Ramkaran (PW 4) and Ramprasad (PW 8) do not disclose that the accused had confessed to have committed the offence under the influence of liquor. It has come in the evidence that many villagers had assembled there but not an independent witness has been examined except one Chandrabhan (PW 10), who has not disclosed to have seen the accused in the Patore or near the place where the girl was lying. The accused has been arrested on the same day and it has come in the evidence of the witnesses that he was beaten by the villagers. Dr. Ravindra Chaudhery (PW 7) who examined the accused found various contusions, bruises and abrasions on different part of his body. But even the doctor has not mentioned about any symptoms of consuming liquor by the accused. Under these circumstances, the conclusion of the learned trial Court that the accused could not escape and slept in the Patore under the influence of liquor is based on conjectures and surmises. So far as FSL report (Ex.P/10) is concerned, the blood stains were found on the Baniyan of the girl, towel, Sarsoda seized from the spot, on the swab and slides of the girl and on the shirt, Baniyan, underwear and pant of the accused, but in the report it has not been made it clear as to whether the stains of blood found on these articles were of human blood? Also no report of the Serologist has been produced to prove blood group on these articles. Thus, in the absence of the evidence regarding human blood and blood group on these articles, it cannot be concluded that the blood stains found on the articles were of the same origin and on this ground also, the presence of blood stains found on the seized articles, could not connect the accused with the alleged crime. In the report (Ex.P/10) the semen stains were found on towel, swab and slides of the girl and on the slides of the accused but no semen stains have been found on the seized shirt, Baniyan and underwear and on the pant. Thus, on the alleged clothes of the accused no semen stains were found. Otherwise also as discussed earlier, the prosecution has failed to prove beyond doubt that the clothes-shirt, Baniyan, underwear and pant were of the accused and seized from him. It is also important to note that from the report (Ex.P/10) it is clear that the seized articles were sent vide requisition-memo on 10-8-1999 to FSL, Sagar and the packet was received on 13-8-1999. Thus, it is clear that after two months these packets were sent to FSL, Sagar. There is absolutely no evidence that the articles seized were sealed. There is no evidence that after seizure where these articles were kept for two months and in what condition and in whose custody. This lacuna again casts doubt on the prosecution story. No other circumstance has been pointed out by the prosecution. Thus, all the three circumstances relied upon by the prosecution as also by the trial Court are highly suspicious and not reliable and trustworthy to connect the accused with the alleged crime. The learned trial Court has not considered the aforesaid facts and circumstances as discussed above. The findings of the trial Court is based on conjectures and surmises. There is no legal proof against the accused and therefore his conviction for the offence u/s 376 of Indian Penal Code and sentence thereon is not sustainable in law. In view of the foregoing discussions, the appeal deserves to be allowed. The conviction and sentence under the impugned judgment is set aside and the appellant/accused is acquitted of the offence u/s 376 of Indian Penal Code. The appellant is in jail since 8-6-1997. In view of the foregoing discussions, the appeal deserves to be allowed. The conviction and sentence under the impugned judgment is set aside and the appellant/accused is acquitted of the offence u/s 376 of Indian Penal Code. The appellant is in jail since 8-6-1997. He be immediately released, if not needed in any other case. Final Result : Allowed