R.A. JAHAGIRDAR, J.
These four appeals arise out of the order passed by the learned Sessions Judge of Sangli in Sessions Case No. 75 of 1975. In the said sessions case, two accused, Suresh Anant Changule and Bapu Maruti Mandale, were prosecuted for offences punishable under section 302, 376 and 201 of the Indian Penal Code. We must straightaway proceed to mention the facts briefly which led to the prosecution.
2. Accused No. 1 is said to be a well-to-do agriculturist having lands at village Kasbe Digraj. He owns several pieces of lands amongst which Survey Nos. 1538 and 1536 are two. In Survey No. 1538 he has a residential house together with a cattle shed. In the year 1975 he had grown paddly and sugarcane in Survey No. 1536. Adjacent to Survey No. 1538 is Survey No. 1539 on which is situated what is called a Ganjikhana of the village. Next to this Ganjikhana there is Survey No. 1540 is which there is a water tank. Behind Survey No. 1539, there is Survey No. 1562 which belongs to one Gurling Teli. We are mentioning the locations of these survey numbers because it will enable us to appreciate the evidence which we do partly while narrating the prosecution case itself. The map at Exhibit No. 5 drawn by P.W. 1 Baburao Rangrao Suryavanshi gives the correct picture of the situations of these lands.
3. According to the prosecution, on 2nd of August, 1975 one Ratnabai, a widow of this village, was working in Survey No. 1536. Along with her, several other persons including accused No. 2 were working. At about 2.00 p.m. on that day, Mangala, the daughter of Ratnabai, brought food for her mother. After she delivered the food Ratnabai cut some sugarcane leaves and tied the same in a bundle. She gave the said bundle to Mangala for carrying i
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t to her house. Mangala thereafter returned in the direction of the village by a footpath. The prosecution alleges that sometime thereafter Accused No. 1 came on the scene and also left by the footpath with the intention to water the sugarcane crop. After finishing her day's work, Ratnabai returned to her house to find that Mangala had not returned with the bundle which she had given to her. She woke up the neighbourhood and several neighbours started a search for Mangala. In this search party, Dhondiram, the brother of Ratnabai and uncle of the girl Mangala, was one. The search led them to the filed of Guruling Teli where, according to the prosecution, a part of the green saree as also certain broken bangles were found. Since it was night time the search was suspended and thereafter it was resumed on 3rd of August, 1975. After digging some area in the field of Guruling Teli the body of Mangala was discovered. Dhondiram, the uncle of Mangala, went to Budhgaon Police Station, a place ten miles away from this village, and lodged a complaint at Exhibit 16. This set the investigating machinery into motion.
4. Investigations included the discovery of a pick-axe allegedly pursuant to a statement made by Accused No. 1. The body itself was exhumed on the 4th of August, 1975 on which day statements of various witnesses were recorded. The post-mortem was conducted at the site itself because the body was not in a position to be shifted to the hospital. Dr. Chopda, examined as P.W. 13, after conducting the post mortem examination has given an opinion that Mangala died as a result of strangulation. He was, however, not able to say that any sexual offence was committed on the body of Mangala. At the fag end of the first information report at Exhibit 16 lodged by Dhondiram, an allegation was made that Accused Nos. 1 and 2 had pursuant to a common intention committed the murder of Mangala after committing rape upon her. It is on these facts alleged by the prosecution that both the accused were put up for trial in the sessions case referred to above.
5. In support of its case the prosecution examined, among others, Dhondiram as P.W. 4 who, as already mentioned above, had filed the first information report at Exhibit 16. Sadashiv Ramu Ambole and Shankar Maruti Gaikwad who claimed to have witnessed the forcible abduction of Mangala by Accused No. 1 in the afternoon of 2nd August, 1975 were examined as P.W. Nos. 7 and 8 respectively. Panchas for the various panchanamas were also examined. We are refraining from referring to the same because the evidence that is otherwise collected in the course of the investigation has, in our opinion, not helped the prosecution case at all. Ratnabai, the mother of Mangala, was examined as P.W. 5. The soil found on the pick axe recovered from the house of accused No. 1 pursuant to the statement made by him under section 27 of the Evidence Act was sent to the Chemical Analyser along with the soil which was recovered from the place where the dead body of Mangala had been buried. The Chemical Analyser's report which is at Exhibit 38/1 mentions that these two soil samples tally with each other in physical properties and chemical composition.
6. In addition, a statement purported to be a confessional statement made by Accused No. 2 to the judicial Magistrate was tendered in evidence. In this statement accused No. 2 has mentioned that under the threat of accused No. 1 who had himself in turn confessed to him about the commission of the crime he had helped Accused No. 1 in burying the dead body of Mangala in the land of Guruling Teli.
7. The learned Sessions Judge relied upon the following circumstances for being convinced about the guilt of accused No. 1 in the commission of the murder of Mangala :---
In the first place he accepted the prosecution evidence that after Mangala left the working place of her mother, accused No. 1 followed her in the same direction and by the same footpath by which Mangala had preceded him. The learned Sessions Judge also accepted the evidence of Sadashiv Ambole and Shankar Maruti Gaikwad (P.W. Nos. 7 and 8) who swore that they had seen Accused No. 1 carrying Mangala in the land of Guruling Teli on the afternoon of 2nd of August, 1975. The learned Sessions Judge was also impressed by the similarity of the soil qualities and chemical composition of the samples of soil, to which we have already made a mention earlier. The learned Sessions Judge then proceeded to convict accused No. 1 of the offence of murdering Mangala under section 302 of the Indian Penal Code. The learned Sessions Judge, however, acquitted accused No. 2, though in the judgment itself we find that he was convinced of the voluntary statement of the confession allegedly made by Accused No. 2 to the Judicial Magistrate. The learned Sessions Judge, however, thought that the Act of Accused No. 2 in burying the body of Mangala was done under duress and threat emanating from Accused No. 1 and, therefore, Accused No. 2 could not be said to have committed the offence punishable under section 201 of the Indian Penal Code. In law we are not satisfied that the learned Sessions Judge is right in saying that Accused No. 2 committed the Act of burial under the threat of Accused No. 1 and, therefore, he did not commit the offence. The learned Sessions Judge awarded to Accused No. 1 the lesser of the two sentences that are meted out for the offence punishable under section 302 of the Indian Penal Code. This he did by his judgment and order dated 28th of June, 1976.
8. Accused No. 1 has preferred Criminal Appeal No. 788 of 1976 challenging the order of conviction and sentence recorded against him. The State has preferred Criminal Appeal No. 876 of 1976 for enhancing the sentence awarded to Accused No. 1 under section 302 of the Indian Penal Code. Criminal Appeal No. 1224 of 1976 has been preferred by the State challenging the order of acquittal passed in respect of the Accused No. 2. Criminal Appeal No. 790 of 1978 has been preferred by the State challenging the order of the learned Sessions Judge acquitting Accused No. 1 of the offence punishable under section 376 of the Indian Penal Code. Before we proceed to deal with the arguments advanced before us in the various appeals, it would be appropriate to dispose of Criminal Appeal No. 876 of 1976. We notice in paragraph 15 of the judgment that before the learned Sessions Judge it was not argued by the Public Prosecutor that Accused No. 1 deserved the capital punishment for the offence of murder for which he was convicted. It has not been shown to us that the omissions of the Public Prosecutor was unjustified. Even in the memo of appeal no ground has been taken challenging the statement in paragraph 15 of the judgment of the Court below which is almost recording a confession on behalf of the prosecutor. On this ground alone we would have dismissed this appeal, but since as we will show presently the order of conviction itself is being set aside, that appeal will be dismissed on that additional ground also.
9. Mr. Patel the learned Advocate appearing in support of Appeal No. 788 of 1976, has criticised the judgment of the learned Sessions Judge by pointing out that the reliance placed upon Sadashiv and Shankar (P.W. Nos. 7 and 8) by the learned Sessions Judge is not warranted. He showed us that though Sadashiv and Shankar say that they had seen the abduction of the forcible taking away of Mangala by Accused No. 1 in the afternoon of 2nd August, 1975 they did not speak about the same to anyone till 4th of August, 1975 when their statement were recorded by the Investigating Officer. For nearly forty eight hours these two persons, says Mr. Patel, kept their mouths shut though they witnessed what according to them was an unusual Act enacted before their very eyes. This conduct of these two witnesses must destroy their credibility when they say in the Court that they were witnesses to the incident that took place on the afternoon of 2nd August, 1975 and yet they did not disclose the same to anyone. Even in the first information report lodged by Dhondiram on the afternoon of 4th August, 1975 there is no mention of the fact that the these two witnesses or either of them had been Accused No. 1 committing the Act of abduction. These criticisms levelled by Mr. Patel are fully justified as we will show presently after briefly referring to the testimonies of Sadashiv and Shankar.
10. We may mention, at this stage that it is wholly unnecessary for us to refer to other prosecution evidence because, in our opinion, the prosecution case must stand or fall by the acceptability of the testimonies of these two witnesses, namely Sadashiv and Shankar. That Accused No. 1 could have gone after Mangala, after Mangala herself had left the place where her mother was working, cannot by itself be a circumstances against Accused No. 1. There is no other prosecution evidence even to suggest remotely that Accused No. 1 and Mangala were last seen together on the afternoon of 2nd August, 1975. There is no other prosecution evidence to show, again in the remotes way, that soon after Mangala was dead and was buried Accused No. 1 was seen going away from that place. This is especially so because there is no evidence to show that Mangala was murdered at a particular time and that she was buried in Guruling Teli's field at any particular time.
11. We may also straightaway mention that the absence of human blood on the clothes recovered from the house of Accused No. 1 is a circumstance which cannot be any stretch of imagination be used against him. The learned Sessions Judge's reliance upon the similarity of the quality of the two samples of the soil attached from the pick axe of Accused No. 1 and from the place where Mangala was buried is also, in our opinion, hopelessly inadequate to connect Accused No. 1 with the crime in question. That Accused No. 1 is the owner of several lands in the village is an admitted position. That the pick axe could be used in any of his lands is a matter of common sense. That Guguling Teli's land is adjacent to the land of Accused No. 1 is also an admitted position. If the two lands are adjacent to each other and if the samples of soils from the two lands are similar in nature, physically and chemically, one cannot use how that fact could be used as a circumstances against Accused No. 1. We reject this circumstances as a link in the chain of circumstantial evidence which could be forged around the neck of Accused No. 1.
12. We are thus left with nothing more than the testimonies of the two witnesses, namely Sadashiv and Shankar, to which we must now turn. Sadashiv says that on the day in question, which was a Saturday, he had gone to the Ganjikhana along with Shankar, the other witness. Both of them had gone by Bagani Road. While he was in the land in which the Ganjikhana is situated, he noticed accused No. 1 standing near the water chamber which itself is adjacent to the Ganjikhana. At that time, according to Sadashiv, a girl wearing a green saree and with a bundle of hay on her head came from the western side. On the western side is situated the land of Accused No. 1. She was, according to him, going by the footpath towards the village. When the girl came near accused No. 1, accused No. 1 snatched the bundle of hay from the girl, lifted her and took her in the sugarcane crop of Guruling Teli. Then the witness says that he himself went away. In other words after witnessing such an incident, which cannot by any stretch of imagination be called an incident of common occurrence, the witness still did not display an ordinary curiosity to find out as to why Accused No. 1 has taken the girl into the land of Guruling Teli. He did not report the matter to anyone, despite the fact that he noticed that there was something unusual in the whole Act. One commission with reference to his statement before the police which is significant has been brought out in the cross-examination of this witnesses and that is that he had mentioned before the police that he had gone along with the search party of Mangala on the night of 2nd August, 1975. He explains his unusual conduct by mentioning that since there were no shouts from the girl, he did not about. That the disappearance of a girl like Mangala was noticed in the evening of 2nd August, 1975 itself must be taken for granted. That there was a search for the girl must have been known to the villagers will also have to be accepted despite the fact that this witness refuses to admit that he had come to know of the incidence during the night. We are, therefore, reluctant to accept that this witness has witnessed what he says, he has witnessed because the conduct subsequent betrayed by him is totally inconsistent with the conduct of a normal human being.
13. Shankar, who was examined immediately after Sadashiv, also speaks on the same lines of his predecessor witness. In the cross-examination he has mentioned that neither he nor Sadashiv said anything and both of them left the place immediately after the girl was taken into the sugarcane crop. After giving all the careful consideration that these testimonies deserve we have no hesitation in rejecting them on ground among others, that they had not disclosed the happening of this incident to anyone for nearly 48 hours. This is wholly inconsistent with the conduct of normal persons. Also inconsistent in their conduct in going away from the place after seeing a girl of tender years being forcibly taken by Accused No. 1 to a nearby sugarcane land obviously with no honest intentions. Mr. Patel also questioned the capacity of these two witnesses to identify Accused No. 1 while thy are not able to identify the girl whom Accused No. 1 is said to have kidnapped, though that girl herself was not unknown to these two witnesses.
14. As we have mentioned earlier, the case of the prosecution must stand or fall by the credibility of the testimonies of these two witnesses. Since we are rejected their testimonies, the case against Accused No. 1 must necessarily fail and he is entitled to acquittal. Criminal Appeal No. 790 of 1978 preferred by the State challenging the order of acquittal under section 376 of the Indian Penal Code must also automatically fail. Since we are rejecting the prosecution evidence that Accused No. 1 forcibly tool away Mangala, the subsequent case of the prosecution that rape was committed upon her by Accused No. 1 also must be rejected. Apart from this, we also notice the absence of medical evidence relating to the commission of rape on the body of Mangala.
15. As far as Accused No. 2 is concerned, we refuse to interfere with the order of acquittal passed by the learned Sessions Judge, though the reasons given by the learned Sessions Judge may not be wholly acceptable to us. In the first place, the confession allegedly made by Accused No. 2 has not been legally proved in the Court below. Secondly, as the learned Sessions Judge says, the confession was subsequently retracted and the facts and circumstances of this case necessitated a corroboration to the retraced confession made by Accused No. 2. No such corroboration is available. Thirdly, we have seen the confession and we find that it is so artificial as to make the story contained in it totally probable. Moreover, the offence against Accused No. 1 is now held to be got proved. In the circumstances it is not possible to hold Accused No. 2 guilty of the offence punishable under section 201 of the Indian Penal Code.
In the result, we proceed to pass the following order :---
Criminal Appeal No. 788 of 1976 is allowed. The order of conviction and sentence recorded by the learned Sessions Judge of Sangli against the appellant (original Accused No. 1) in Sessions Case No. 75 of 1975 is set aside.
Criminal Appeal No. 876 of 1976 is dismissed. Also dismissed are Criminal Appeal No. 1224 of 1976 and Criminal Appeal No. 790 of 1978.
Bail bond of both the accused are cancelled