Kanta Bhatnagar, J.
1. This appeal has been preferred against the judgment passed by the Munsiff and Judicial Magistrate, Merta dated June 24, 1977 by which he acquitted the accused for the offenses under Sections 354 and 456, Indian Penal Code.
2. Briefly stated the prosecution case is that on February 5, 1975 Mst. Phuski was sleeping in the 'verandah' of her house with her youngest daughter. Mst. Kamli, her another daughter was sleeping near heron another cot. Tija, Mst. Phuski's another daughter with her husband Narayan are said to have been sleeping in a room in the same house At about 10 or 11 p.m. the two accused entered the house and touched the breast of Mst. Phuski and when she tried to raise a cry, they pressed her mouth with their hands. The cry of Mst. Phuski attracted the attention of Mst. Tija and Narayan, who came there and saw the accused pressing the neck of Mst. Phuski. The neighbourers Nimba. Baksha and Ghasi are also said to have reached there. The accused are said to have threatened all those persons with a knife and therefore they could not catch hold of them. On February 7, 1975 a report of this incident was lodged by Heera, husband of Mst. Phuski at the Police Station, Merta. A case against the accused was registered and the investigation started. After completion of investigation a charge sheet against the accused was filed. The learned Magistrate charge sheend the accused for these offences and recorded their plea. Both the accused pleaded not guilty and claimed to be tried. The prosecution examined ten witnesses in all. The accused in their statements under Section 313, Code of Criminal Procedure totally denied the allegations and the accused Astali Khan stated that the witnesses were deposing out of enmity, accused Prabhuram was his neighbourer and there was a quarrel between Heera and Prabhu Ram regaiding some 'Bada' and therefore this false case has been instituted. Three defence witnesses were examined. The learned Magistrate did not believe the prosecution evidence and held the accused not guilty and acquitted them of the charges framed against them.
3. The learned Public Prosecutor strenuously contended that the statement of Mst. Phuski stands duly corroborated by her two daughters Mst. Kamla and Mst. Tija and the independent witness Baksha, and, therefore, the learned Magistrate has legally erred in not convicting the accused for the offence. It has been urged by the learned Public Prosecutor that two days delay in filing the first information report stands duly explained by the complainant Heera, husband of Mst. Phuski that he had gone to Ajmer and on return filed the report According to the learned Public Prosecutor under this circumstance the reasoning given by the learned Magistrate that there was delay in lodging the first information report which goes against the prosecution case cannot be said to be justified. According to the learned Public Prosecutor the trend of the witnesses, who turned hostile appears to be to help the accused, who also happens to be the neighbourers and therefore the learned Magistrate should not have taken this point into consideration that most of the witnesses are not supporting the prosecution case. It has also been contended by the learned Public Prosecutor that no enmity between the parties has been brought on the record from the defence side or in cross-examination of the prosecution witnesses and, therefore, there is no reason why a false case would have been instituted against the accused.
4. I gave my anxious consideration to the material on record. This is correct that Mst. Kamla and Mst. Tija have supported the prosecution case It is also evident that Baksha has supported Mst. Phuski on material particulars, but a careful perusal of the statements of these witnesses disclose that all of them are contradicting ea:h other and their statements in themselves are also discrepant Mst. Kamla has deposed that the accused had gone out of the house, when her sister and brother-in-law and the neighboured reached there. This falsifies the version of Mst. Tija that she saw the accused sitting on the cot for a while and catching hold of the neck of her mother. Baksha's statement also stands falsified when he states that when he reached the house of Heera, he while standing in the door saw the accused inside the house trying to outrage the modesty of Mst. Phuski and making efforts to take her out. The two witnesses Nimba and Ghasi, who according to Mst. Phuski reached the site on her cry along with Baksha, have not supported her version and have deposed that no incident took place on that night at the house of Heera. The presence of Ramdeen and Sanki, wife of Padma has been admitted by Mst. Phuski and these two witnesses having been examined from the defence side have expressed their ignorance about any incident taking place. When there is abundant evidence to support the defence version about the accused not being there, the testimony of Mst. Phuski not duly supported by her two daughters even and Baksha, there is nothing illegal in the learned Magistrate holding that the prosecution could not substantiate the against the accused. There is two days' delay in lodging the first information report. Heera has tried to explain the delay by stating that he was out at Ajmer during those two days, but the explanation is not plausible because there was his son-in-law in the same house and the other neighboured also. Mst. Phuski is a grown up woman of about 50 years of age and therefore if there was any incident at all it would have been natural on the part of Mst. Phuski or her son in-law Narayan to go and inform the Police about the same, when the police station is only at a distance of about 5 miles from the village. Narayan is said to be present there in the same house, and to have reached immediately when the accused were still said to be there inside the house has not been examined by the prosecution for the reasons best known to it. Under these circumstances, by no stretch of imagination it can be said that the prosecution has succeeded to bring home the guilt to the accused. I, therefore, find no force in the appeal and it stands dismissed.