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They returned to Ashoka Hotel by the same authorickshaw. They took key from PW 5 Mrs. Mubarak Sayyed Ali Husaini, the owner of Ashoka Hotel. They placed order for lunch with her. Then they went to their room at about 3-30 p.m. Within 15 minutes PW 6 Bharati Nadar, the waiter of the hotel went to the said room with boiled eggs as per the order. He knocked the door of the room, it was not opened. He went back to the counter and disclosed this to PW 5 Mrs. Mubarak Husaini. She tried to contact the room on intercom but there was no response from the room. Thereafter she told PW 6 to open the door of the said room with the help of duplicate key. He opened the door. PW 5 and PW 6 peeped into the room through the door. They found the deceased and the accused completely naked.

According to this witness he did not notice any dispute or bickering between the two.

20. One thing is certain from the above evidence that the accused and the deceased were no stranger to each other. They were to get married. They used to go fo picnics and movies. They had come to Lonavala with the consent of the parents and when they entered the hotel room they were happy. They were found completely naked in the room. In such circumstances, it is difficult to reach a positive finding that the deceased was raped.

examination that it was shown to him. Unfortunately Dr. Prabhane was not available for giving evidence because he was dead. As per Exh. 55, sexual intercourse took place 4 to 5 hours before death. But then evidence on record establishes that the couple came to the hotel at 12-45 p.m. and within 10 to 15 minutes they went out. They came back at 3-30 p.m. and went to their room. At 4 p.m. they were found in a naked condition in the room. The deceased was dead. If the opinion expressed by the doctor vide Exh. 55 that the couple had sexual intercourse 4 to 5 hours before the death is to be accepted, then the couple surely did not have it in the hotel room. Therefore, Exh. 55 does not help to ascertain the prosecution case. In such a situation for all the above mentioned reasons the accused will have to be given benefit of doubt so far as the charge of rape is concerned. We must, therefore, record our conclusion that the prosecution has failed to prove motive.

In any case, one thing is certain that PW-6 Bharati Nadar never said that the accused was unconscious.

35. We must now refer to evidence of PW-13 PC Sahebrao Warule.

Upon receipt of information about the incident at 4.00 p.m. on 27/7/2004, he went to the hotel. He found one boy and girl lying in naked condition. He stated that the girl was unconscious and the boy was conscious. In the cross-examination, he has denied the suggestion that when he first saw the situation inside the room, he noticed a naked boy and a naked girl lying in an unconscious condition on the floor. He has stated in his cross-examination that in his statement before the police, he had stated that the boy and the girl were lying in an unconscious condition in the room. We must note that the portion of his police statement to the above effect is not shown to him. Relevant portion is not marked. Investigating officer PW-15 PSI Borade has not brought on record any such portion from PW-13 Warule's statement. Therefore, when repeatedly Warule has stated that the boy was conscious and the girl was unconscious, a stray sentence in his cross-examination to the contrary cannot be taken into consideration to conclude that PW-13 has contradicted himself. The said alleged portion is not shown to him nor has PSI Borade marked it and brought it on record.