JUDGMENT

1. - This appeal arises out of the judgment of the learned Additional Sessions judge, Banswara, dated 3 7.1971. I have heard argument and seen the record.

2. The accused appellant Nisar Mohammed Patwari was alleged to have commuted rape upon the complainant Mst. Lakho on 20-2-70 in the evening at about 6 p.m. when she was grinding maize in her house in village Kotda of police station Khusalgath husband was away, She raised a cry which attracted witnesses Teeta PW 2 and Rangji PW 3, who caught the accused red handed. Husband of Mst. Lakho returned to his house village Kotda two days after the occurrence. They both started for the police station in order to lodge a report but the people of the village persuaded them not to make haste and promised to settle the matter in the village itself. However, a complaint was afterwards lodged by Mst. Lakho on 7-3-1970 in the court of Munsif-Magistrate, Kushalgarh. The Magistrate asked the police to conduct an inquiry and the Deputy Superintendent of Police submitted hit report to the Magistrate that a prima facie case was made out against the appellant. The learned Magistrate after inquiry committed the accused for trial under Section 376 and 451 IPC.

3. The learned Addl. Sessions Judge by his impugned judgment disbelieved the theory or house trespass and rape and acquitted the accused of both the offences. He, however convicted him under Section 354 IPC on the ground that "the minimum may be true" and "at least the accused committed an act which felt within the purview of Section 354 IPC."

4. It is very difficult to support the approach of the learned Additional Sessions Judge in the matter. It was either a case of rape or no rape at all. It was nobody's case that the accused committed only indecent assault upon the prosecutrix. It is not the finding of the learned Additional Sessions Judge that no rape was proved but only an indecent assault could be there. The conviction under Section 354 IPC was thus made merely upon a conjecture. Unfortunately, the State has not come in appeal against the acquittal of the accused under 376 IPC and therefore, I do not consider it fit to remand the case for retrial after a lapse of four years of the incident.

5. The learned public prosecutor submitted that the evidence of Mst. Lakho corroborated by the two eye witnesses established that the accused committed assault out-raging the modesty of Mst. Lakho I am unable to agree to fall in line with this submission Further the whole case is shrouded in doubt because no prompt report was lodged in the police station and the complaint to the Magistrate was also made after about 15 days of the occurrence. Still more, as pointed out by the learned Counsel for the appellant, the cause appears at the roost of intercourse with consent because the prosecutrix deposed that the accused continued the objectionable act for a time which will be taken up in grinding 21/2 seers of maize, and this falsifies the allegation that the prosecutrix began to cry so soon as the accused began his assault and the witnesses arrived on the scene. There is force in this contention.

6. I, therefore, accept this appeal, set aside the convection and sentence of the appellant. I acquit him of the charge under Section 354 IPC, The fine, if paid, shall be refunded. The appellant need not surrender to his bail bonds which are hereby cancelled.

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