Judgment

PALEKAR, J.:- This is an appeal by special leave by the State from an Order of acquittal passed by the High Court of Bombay. The respondent Manglya Dhayu Kongil had been convicted under Section 302 and Section 376 r/w 511, IPC by the Second Additional Sessions Judge, Thana on April 27, 1968 and sentenced to death for the first Offence The High Court has acquitted him in appeal and hence the present appeal by the State.

2. The victim of the crime was an unmarried woman named Kamlabai Gangadhar Vaidya. She was about twenty six years old. She was working as a field Worker in the Family Planning Department and was attached, at the material time, to the Medical Dispensary at Kudus - a village in the interior of Thana District. This village has several hamlets, far flung from each other. Each hamlet consisted of a few huts belonging to Adivasi residents of the village. One such was Malanpada. The respondent is a resident of Malanpada. His father and brother Janu lived in one hut and the respondent himself lived in another hut. The deceased Kamlabai used to reside in another village named Chinchghar which is four furlongs away from Kudus. For the purpose of her work she had to visit several hamlets round about. A vasectomy camp was to be held at the Taluka place. Wada, 10 miles away on the 30th January, 1968 and Kamlabai had been instructed to collect as many cases as she could get for vasectomy or for insertion of loops. On the afternoon of January 26, 1968 at about 4.00 or 4.30 P. M. she was going to one of the hamlets to see one Pandu and his wife for telling them about the vasectomy camp. At that time she was accompanied by the respondent, the latter being her guide to the several houses. Their way lay along a foot track which passed near the cattleshed of one Balu Bhau Patil, P. W. 1. With Balu Bhau Patil, there were some other persons including Dagdu, P. W. 6. The uncle of the respondent. Dagdu asked Kamlabai were she was going and the latter told him that she was going to Pandu and his wife to book their cases. This Pandu happened to be in the service of Dagdu who knew that Pandu and his wife were not at home. So he told Kamlabai that Pandu and his wife were away and she would not be able to find them. Thereupon Kamlabai turned back and went towards the West with her guide the respondent. She had turned back either to go to Kudus or to some other place in order to book more cases. Their way to the West was through a hilly jungel area known as Aricha Dongar. The place is full of trees and bushes. Perhaps that was a short cut. Sometimes after they had departed, witness Balu Bhau Patil proceeded to another field of his which was to the North of the hill. He had gone there to fetch his bullocks. On the way he heard the cries of a female coming from the direction in which the respondent and Kamlabai had gone. The female was crying "Manglya leave me. Why are you catching" me. So Balu Bhau proceeded in the direction of the cries and from a distance of about 40 or 50 paces he saw that Manglya, the respondent was molesting Kamlabai. Kamlabai was lying on the ground and the respondent was attempting to lift her legs. Balu Bahu shouted to the respondent that he should leave the lady. The respondent then left her. He then picked up a stone with a view to throw it at Balu Bhau. So Balu Bhau rushed away from the place. Since the house of the respondent s father was at the foot of the hill hardly a furlong away, he ran towards that side to request the father to do something to prevent further molestation of the lady. At the house of respondent s father he met respondent s elder brother Janu Kongil and told him what was happening. Janu Kongli then went away in the direction indicated by Balu Bhau. Another Adivasi Ziparya who was living close by asked Balu Bhau what the matter was. On being told by him. Ziparya also went that side. Balu Bahu himself did not go because he felt tired by the effort.

3. While Balu Bhau remained below near t