JUDGMENT : S. Acharya, J. - This is an appeal u/s 417(3) Code of Criminal Procedure against an order of acquittal, passed by the Subdivisional Magistrate, Bargarh on 8-6-1970 in 1. C.C. No 44 of 1969/Tr. No. 320 of 1969. 2. The prosecution case in short is that on the date of occurrence by about 5 p.m. p.w. 2 had some quarrel with Nua Dei, wife of accused Mukta, as Nua Dei allegedly deposited some dirt in front of the some of p.w. 2. When they were quarrelling the accused persons came out of their house with Lathis in hand, abused p.w. 2 in filthy language and rushed at her to assault her. She drew the attention of the persons present there and went inside her house and closed the door. After some time p.w. 1, the husband of p.w. 2, who was away from the house, came back and found that the accused persons were standing near his house. On seeing p.w. 1 the accused persons abused him and rushed at him with an attitude to assault him. Out of fear p.w. 1 entered inside his house. On the above allegations the two accused persons (Respondents herein) stood their trial in the Court below. 3. The Court below, on its own appreciation of the evidence on record. found that the occurrence as alleged by the complainant was established on the evidence on record. I shall deal with the correctness of the said finding later in this judgment. But having arrived at the aforesaid finding, the Court on an erroneous view of the law on the subject, acquitted the accused persons of the offence u/s 352, Indian Penal Code on the finding that on the aforesaid facts the accused persons could not be convicted of the said offence. 4. An offence of assault, as defined in Section 351, Indian Penal Code is constituted when it is proved (i) that the accused made a gesture or preparation to use criminal force; (ii) that the same was made in the presence of the person in respect of whom the said gesture or preparation was made; (iii) that the accused intended or knew that his such gesture etc. would cause that other person to apprehend that criminal force would be used against him; and (iv) that such gesture or preparation did cause in the mind of the other person the apprehension that the accused would use criminal force against him. If the allegations of the complainant are accepted as correct, then on the said facts all the aforesaid necessary elements to constitute an offence of assault punishable u/s 352, Indian Penal Code are established. So as the Court below arrived at the finding that the complainant?s allegations were established, its conclusion that on the said facts an offence of assault punishable u/s 352, Indian Penal Code is not established is clearly erroneous. 5. Mr. Behura, appearing for the Respondents, seriously contends that the finding of the Court below that the allegations of the complainant have been established in this case is erroneous and is liable to be set aside on a proper assessment of the evidence on record. He took me through the evidence on record and on a perusal of the same I am convinced that the aforesaid finding of fact of the trial Court is not well founded. P.w. 1 admittedly was not present when the accused persons allegedly rushed at p.w. 2 to assault her, as stated by p.w. 2. According to p.w. 2 she at first had a quarrel with Nua Dei, wife of accused Mukta, as the latter deposited some dirt and refuse in front of her (p.w. 2?s) house. At this the accused persons armed with Lathis abused her and rushed at her with a threatening attitude. Seeing the accused persons running towards her she entered into the house. P.ws. 3 and 4 do not lend convincing corroboration to the evidence of p.w. 2 to the above effect. P.w. 3 admitted in his cross-examination that by the time he came out of his house he found that p.w. 2 had entered inside the house and at that time both the accused persons came out of their house with Lathis in their hands. This sentence in his cross-examination completely falsifies his evidence in examination-in-chief where he made an attempt to support p.w. 2?s case. This sentence in his cross-examination completely falsifies his evidence in examination-in-chief where he made an attempt to support p.w. 2?s case. With regard to p.w. 1?s allegation that the accused persons rushed at him when they found him near his house, p.w. 3 states that when p.w. 1 came to that place and asked the accused persons as to why they were creating trouble with his wife in his absence, and scolded them on that account, the accused persons started abusing p.w. 1 and then stated that they would assault p.w. 1. It has been elicited from him in cross-examination that the accused persons and p.w. 1 were abusing each other on the village lane standing at a distance of 8 cubits from each other P.w. 3 has admitted that he is some way related to p.w. 1. His evidence in cross-examination merely makes out a case of an ordinary quarrel between the complainant on one side and the two accused persons on the other. P.w. 4 in his examination-in-chief stated to have witnessed only the first part of the occurrence in which p.w. 2 was allegedly threatened to be assaulted. But in his cross-examination he stated that by the time he came to the spot p.w. 2 had already entered inside her house. From this sentence it is quite clear that he did not see if the accused persons really rushed at p.w. 2 with Lathis in hand to assault her. He did not speak that he witnessed the alleged occurrence between p.w. 2 and the accused persons from any other place. Thus analysing the evidence of p.ws. 3 and 4, the two eye-witnesses examined to support the allegations of p.ws. 1 and 2, it is seen that both of them (p.ws. 3 and 4) had not seen the alleged occurrence concerning p.w. 2. P.w. 4 did not see the occurrence relating to p.w. 1, and to that part of the occurrence, apart from the complainant himself, the only other witness is p.w. 3, a relation of p.w. 1. The gist and effect of p.w. 3?s evidence has been stated above P.ws. 1 and 2 admitted that they had previous enmity with the accused persons. P w. 1 in his cross-examination has himself created doubt about his evidence in the examination-in-chief. The gist and effect of p.w. 3?s evidence has been stated above P.ws. 1 and 2 admitted that they had previous enmity with the accused persons. P w. 1 in his cross-examination has himself created doubt about his evidence in the examination-in-chief. While in his examination-in-chief he stated that when the accused persons, who were standing near his house armed with Lathis, saw him they rushed at him and out of fear he entered into his house, in his cross-examination he stated that the accused persons were standing in the village lane when they threatened to assault him, and so he entered into his house. From his deposition in cross-examination it does not appear that the accused persons rushed at p.w. 1 in order to assault him. The prosecution evidence read as a whale does not inspire confidence. 6. On a thorough perusal of the evidence on record I find that the allegations on which this case was started have not been established beyond reasonable doubt and on the unconvincing evidence adduced in this case a case u/s 352, Indian Penal Code is not made out. So though the order of acquittal, on the ground and reason given by the Court below, is not correct, the same order has to be passed on the ground that the allegations of p.ws. 1 and 2 have not been established in this case beyond reasonable doubt. Accordingly, the order of acquittal, on the findings stated above, is upheld and the appeal is dismissed. Final Result : Dismissed