JUDGMENT A. H. JOSHI, J.:- Heard both sides. 2. Perused the record. 3. The appellant was charged under Section 302, 376 and 354 of the Indian Penal Code in Sessions Trial No.13 of 2005 as follows:- (a) The appellant intentionally outraged modesty of deceased by holding her both breasts. (b) The appellant forcibly committed sexual intercourse with deceased against her will and consent. (c) The appellant committed murder of deceased by intentionally assaulting her by use of stone on her face and by strangulating with the help of ribbon in order to cause her death. 4. The learned 1st Ad-hoc Additional Sessions Judge, Chandrapur, has convicted the appellant accused for:- (a) outraging modesty of deceased by holding her both breasts, under Section 354 of the Indian Penal Code, and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/- in default rigorous imprisonment for 3 months; (b) forcibly committing sexual intercourse with deceased against her will and consent, under section 376 of the Indian Penal Code, and is sentenced to suffer rigorous imprisonment for ten years and shall pay fine of Rs.3000/- in default rigorous imprisonment for six months; (c) for committing murder of deceased, by intentionally assaulting her by means of stone on her face and by strangulating with the help of ribbon in order to cause her death, under section 302 of the Indian Penal Code, and is sentenced to suffer rigorous life imprisonment and shall pay fine of Rs.5000/- in default rigorous imprisonment for six months. 5. The prosecution has relied upon 11 eye witnesses. Out of these witnesses, PW-4 Shobha W/o Nanaji More, PW-5 deceased and PW-7 Vasantrao Dakhre are the eye witnesses. PW-2 Dr. Rameshwar Gaigol and PW-3 Dr. Hemant Puttewar are the medical witnesses, PW-6 Gajanan Rajurkar and PW-8 Vasant Kotpalliwar, and PW-9 Vitthal Bhadke are the panch witnesses. PW-1 Gitabai, PW-10 Madhukar Chandekar and PW-11 Suresh Nagorao Patil are the police witnesses. 6. The reliance of the prosecution is on circumstances namely: (a) the eye witness in the form of PW-7 Shri Vasantrao Ramuji Dakhre; (b) Last seen; (c) the circumstantial evidence in the form of circumstance of the blood which match with the group of blood of the deceased; 7. The points as urged by the defence are as follows: (i) Through the examination-in-chief, PW7 Vasantrao Ramuji Dakhre is posed as a worthy eye witness. The points as urged by the defence are as follows: (i) Through the examination-in-chief, PW7 Vasantrao Ramuji Dakhre is posed as a worthy eye witness. Testimony of this eye witness is rendered of doubtful credit in his cross examination. His evidence is not corroborated. Therefore, it ceases to be a case based on ocular evidence. (ii) The evidence of last seen is not proximate to the time of offence. Moreover, the field of the accused is next to that of father of the deceased. The presence of accused at the time when he is said to be seen passing nearby, may be considered probable, yet it does not establish the connection of the accused with the probable time of offence. (iii) The blood group found on the clothes of the victim matches with the blood group of the prosecutrix. This circumstance cannot be relied upon, on account of two grounds. (a) The blood group of the accused is not proved. (b) This adverse circumstance is not put to the accused in the statement under Section 313 of Criminal Procedure Code. (iv) Not on the sole point that the accused has not been confronted with adverse circumstances proved against him in the process of recording statement under Section 313 of Cr.P.C., even otherwise if the totality of the evidence is seen, the accused is being indicted on suspicion than on evidence. (v) However, strong the suspicion be, it does not substitute the need of primary evidence or unimpeachable circumstantial evidence. (vi) Considering the totality of evidence, the accused is entitled for acquittal. 8. The prosecution witness nos.1 and 3 are the medical witnesses. The cause of death is strangulation. The death is homicidal. 9. PW-3 is the Medical Officer who has examined the accused. He has found the accused to be fit, capable of sexual intercourse and that he did not see any fresh injury on the person of the accused. 10. PW-4 Shobha is the mother of the prosecutrix. Her evidence is worthy limited to the extent of identification of clothing of the prosecutrix are concerned. She does not render much help to the prosecution on the aspect of any other fact relating to the offence. 11. PW-5 deceased More is the sister of the deceased. She has deposed in examination-in-chief as to what she has seen. The relevant para of her testimony reads as follows: "2. She does not render much help to the prosecution on the aspect of any other fact relating to the offence. 11. PW-5 deceased More is the sister of the deceased. She has deposed in examination-in-chief as to what she has seen. The relevant para of her testimony reads as follows: "2. I and deceased at 12.00 noon, on the day of incident, had carried the bullocks to our field, for grazing. After reaching to field I returned back to the house, deceased remained in the field. When I was returning, I saw accused going on by bicycle, while going to his field near the school. The field of accused was adjoining to our field. I know the accused present in the Court". [Quoted from page 107 of the appeal paper book] 12. PW-5 deceased thus, proves that:- (a) While she (deceased) was returning from the field. (b) She saw the accused going on the bicycle. (c) Accused was going to his field near the School which is adjoining to the field of her father Nana. The time when deceased saw, the accused has to be speculated as nothing specific is evident from her testimony. 13. PW-7 is cited as an eye witness. He states that at 2 p.m. while he was returning from his field he has seen that the accused was sitting on the chest of deceased in the field. Relevant portion of his examination-in-chief reads as follows: "3. At about 2.00 p.m. I was returning to my house. When I reached in the field of Uikey, I saw accused sitting on the chest of deceased in the field. I was frightened. Hence, I went to my house. I took water then I went to the house of Kawadu Patil and narrated the incident to him. Then I alongwith Kawdu Patil and other villagers went to the field of Uikey. I saw deceased lying in injured condition in the field. That time she was dead. There was mark on her throat region and her tooth was dislodged". [Quoted from page 119 of the appeal paper book] 14. As is seen from the report of the Chemical Analyzer Exh.77 at page 165 & 166, evidence of blood stains on Article 16 the ful1 shirt belonging to the accused is described as follows: "Exhibits 8, 9, 10 and 10 are stained with blood group "R". [Quoted from page 119 of the appeal paper book] 14. As is seen from the report of the Chemical Analyzer Exh.77 at page 165 & 166, evidence of blood stains on Article 16 the ful1 shirt belonging to the accused is described as follows: "Exhibits 8, 9, 10 and 10 are stained with blood group "R". [Quoted from page 166 of the appeal paper book] ANALYSIS OF WORTH OF ORAL EVIDENCE: 15. It is seen that testimony of PW-4 mother of the deceased proves that at 12 noon Vasanta (PW-5), deceased went to the field. She states that after some time, deceased returned back and at 2 p.m. PW-4 went to the field with water. Thus, her testimony does not prove any fact except that she saw the dead body some time after 2 p.m. 16. The version of PW-5 deceased restricts her evidence about having seen the accused going on bicycle to his field without specifying exact time in that regard. 17. In so far as the testimony of PW-7 Vasantrao is concerned, he is shown as eye witness. He claims that he has seen the accused sitting on the chest of the prosecutrix. What he claims thereafter is pertinent. In the examination-in-chief, he states as follows: "2.....................Hence, I went to my house, took water, then went to the house of Kawadu Patil and narrated the incident to him." In the cross-examination he reveals as fol1ows:- "There was no person in the fields adjoining to the field of Uikey. School was at the distance of 400/500 feet from the spot of the incident. There was no watchman in the school being holiday. There used to be traffic on Chintal dhaba to Pombhurna road. Due to apprehension of beating, I did not give call to the accused in the field of Uikey. There were nobody by reaching near the school. There was a square near my house, but there was nobody present in that square. There was a bus stand while going to my house. There was a pan stall near the bus stand. That day pan stall was closed. House of deceased was on the back side adjoining to my house. I and deceased belonged to same caste. I am related to deceased. I am on talking terms with the family of Nanaji. I did not go to the house of Nanaji. There was a pan stall near the bus stand. That day pan stall was closed. House of deceased was on the back side adjoining to my house. I and deceased belonged to same caste. I am related to deceased. I am on talking terms with the family of Nanaji. I did not go to the house of Nanaji. We reached with the villagers on the spot of incident at 3.00 p.m. Many villagers gathered on the spot of the incident. Except Kawadu Patil, I did not disclose the incident to anybody. I was on the spot of incident upto 5.00 p.m." [Quoted from page 120 & 121 of the appeal paper book and sub-paragraphs are done for convenience.] 18. It is seen in the spot panchanama that:- (a) On the western side, (b) There is a row of tur (yellow gram) crop, on the southern side, (c) There is an embankment of the field. (d) The dead body was lying on the second row of Tur Crop from the southern embankment. 19. The prosecution did not prove:- (a) Height of embankment. (b) The height as well as density of row of Tur crop on those embankments. (c) The elevation of the place from where this witness had passed or was standing while he had witnessed the incident. In absence of evidence as regards heights as indicated the probability that the PW-7 Vasantrao has seen that the accused who was sitting on the chest of victim beyond a bandhi and two rows of Tur crops away from the path, seems to be improbable. 20. PW-7 Vasantrao admits that he is related to deceased and his family and of deceased are on talking terms, and deceased house is exactly on the backside of his house renders his conduct of failure to report the mater to the family renders the behaviour of PW-7 to be unnatural as well abnormal. His version/testimony becomes doubtful as truth. It is not convincing that a bus was standing, and yet there was nobody in whole stretch. The prosecution has not brought on record as to how and what was the reason of scare which PW- 7 Vasantrao had. The version of this witness about the scare and about between the spot and school to be 400 feet, the hut is 200 feet, renders version more improbable. 21. The prosecution has not brought on record as to how and what was the reason of scare which PW- 7 Vasantrao had. The version of this witness about the scare and about between the spot and school to be 400 feet, the hut is 200 feet, renders version more improbable. 21. The act of this witness in not reporting the matter to the family members of deceased renders the possibility that he has seen the accused sitting on the chest of the prosecurtix doubtful, rather highly improbable. 22. As per the report of Chemical Analyzer:- - There is no semen found on loose pubic hair near the thighs of the prosecutrix. - No sperms or spermatozoa is found. - Blood on the clothes of prosecutrix belonged to her own, and she was in the midst of menstruation. 23. These loose pubic hairs found on the corpus have not been sent for DNA analysis to identify the person to whom those belong. 24. There are no internal injuries to the genitals. The injuries on the thighs do not by themselves prove the act of rape. Stains of oil on thighs suggest many things, but necessarily not the conclusion as regards rape. Therefore, the finding as to rape can not be conclusively arrived at. 25. The circumstance blood stains on the person thus turns out to be the sole evidence, and it ought to have been proved strictly. If the sum effect of the worthiness of the version of the witnesses is seen, the prosecution case is not proved beyond reasonable doubt. Admittedly, when the case proceeds on circumstantial evidence, the prosecution would have collected the evidence with far more seriousness which has not been done. 26. In the background of total absence of evidence to connect the accused with the incident, exerting to convict the accused on sole piece of evidence of blood on his clothe without any corroboration turns out to be a difficult proposition. The Investigating Officer has either failed to explore all possibilities or has despite efforts failed in achieving to collect relevant and entire evidence. 27. In the result, this Court reaches the conclusion that the prosecution has failed to prove the involvement of the accused in the act of homicidal death and rape etc. of deceased beyond any room of doubt. 28. In the result, appeal succeeds. 27. In the result, this Court reaches the conclusion that the prosecution has failed to prove the involvement of the accused in the act of homicidal death and rape etc. of deceased beyond any room of doubt. 28. In the result, appeal succeeds. The Judgment and order of conviction and sentence is set aside. The accused be set at liberty forthwith unless required in any other case. Fine amount, if any, be refunded. Appeal allowed.