JUDGMENT 1. - This appeal by Asaram and Dhennaram is directed against the judgment of the learned Sessions Judge Bikaner dated 19th June. 1971, whereby hereby both the appellants have been convicted under Section 364, Indian Penal Code, and sentenced to one year rigorous imprisonment, and a fine of Rs. 100/-. The accused appellants have, however, been acquitted of the charge under Section 376, Indian Penal Code for which they were sent to stand their trial by the learned Addl. Munsiff Magistrate, Bikaner, to the Court of Sessions. 2. On 26th January, 1971, at about 5 PM, Mst. Jamna, wife of Moola Ram, when she was returning to her home from the field, was caught hold of by Asaram and Dhann ram, and it is sad that Asaram first committed rape on her, and therefore when Dhannaram was in the process of having intercourse with her they were seen by Sohan Singh and Mohan Das from a distance of about 2 pounbas. When the accused persons saw these witnesses coming towards them, they ran away from the spot. Both these witnesses then went near Mst. Jamna, and took her to her house in the village. Moola Ram had gone to village Sonyissar therefore, a message was sent to him next day, who returned to his village in the evening of 27h January, 1971. But the report of this incident was lodged at the police Station, Nokha on 30th January 1971. As a result of the investigation both Asaram and Dhannaram were challaned under Section 376, I.P.C. The learned Additional Munsiff Magistrate, Bikaner, who Conducted the inquiry sent, both of them to the Court of Sessions to stand their trial for the offence under Section 376, Indian Penal Code. 3. Besides Mst Jamna, Mohan Das PW 3 and Sohan Singh PW 2 were examined as eye witness to the scane of occurrence. Moola Ram the husband of Mst. Jamna was also brought into the witness-box and examined as PW 4. 4. The statement of Mst. Jamna was, however, not believed in toto by the trial Court, as the story of committing rape on her by the two accused-appellant was not found to be correct by the trial Court. However, the trial Court after looking into the circumstances of the case came to the conclusion that the modesty of Mst. 4. The statement of Mst. Jamna was, however, not believed in toto by the trial Court, as the story of committing rape on her by the two accused-appellant was not found to be correct by the trial Court. However, the trial Court after looking into the circumstances of the case came to the conclusion that the modesty of Mst. Jamna was outraged by the accused persons, and therefore, they were held guilty of the offence under Section 364, Indian Penal Code While arriving at this conclusion, the learned Judge observed that the statement of Mst. Jamna so far as it proved the outraging of her modesty finds corroboration from the testimony of PW 3 Sohan Singh, and PW Mohan Das. 5. The learned counsel appearing on behalf of the appellants urged that the report of this incident was lodged by Moola Ram on 30th January, 1971, after tour days of the incident, and for that delay no reasonable explanation is forthcoming. He also urged that there was enmity on account of election matters between the parties; and, therefore, absolutely a false case was foisted on the appellants involving the two lads in an offence of a heinous type. It is further urged that the testimony of Mst. Jamna does not find corroboration either from the medical evidence, or from other circumstances; and, therefore, the Court below has committed an error in finding the accused appellant guilty of offence under Section 364, Indian Penal Code 6. Mst. Jamna PW I has stated that when she was returning from her village to the field at about 5 PM in the evening. She was overpowered by the accused-persons, and she was fell down, and rape was committed on her first by Asaram, and then by Dhannaram. According to her statement, her mouth was gagged and she sustained injury on her lip when the gagging of her mouth was done by the accused persons. She further stated that when Asaram finished the rape on her and he got up, and Dhannaram started to commit rape on her. It is during this process that the cloth which was put in her mouth came out and she raised a cry, which attracted the attracted of the two witnesses Sohan Singh and Mohan Das. When Sohan Singh and Mohan Das rushed to the and to help her both the accused persons slipped away. 7. It is during this process that the cloth which was put in her mouth came out and she raised a cry, which attracted the attracted of the two witnesses Sohan Singh and Mohan Das. When Sohan Singh and Mohan Das rushed to the and to help her both the accused persons slipped away. 7. The place, where the rape is alleged to have been committed by the accused persons, was not a smooth place. It is stated that she was fell down on the ground much against her wishes with their suit that the grain that she was carrying from her field also fell down and scattered there. She was also carrying with her a six months old body in a 'Khariya'. She alto fell down and started weeping. First blow is alleged to have been given on her mouth, which started bleeding. Mst. Jamna as examined by a Doctor on the 31th January. 1971. But she was not found to have sustained any injury over the body, i. e. abdomen, back, perineum and thigh. Mst. Jamna states that her clothes were torn during this incident, Soon after the incident she went to Chhotsingh and Davi Singh, who were the village head. men, and reported the matter to them Chhotsingh has come in the witness box. But he did not say that be had seen the torn clothes of Mst. Jamna. He, however, corroborates the statement of Mst Jamna that the report was made to him about the incident. But making of the report by itself is not sufficient to prove the guilt of the accused persons. If really the clothes of Mst Jamna were torn during this incident there has no reason why this fact was not brought to the notice of Chhotsingh when the matter was reported to him, soon after the incident. Even if Mst. Jamna did not point out that her clothes were torn, there was no reason why Chhot singh could not himself see the torn clothes on the body of Mst. Jamna. 8. The Sub-Inspector came to the spot on the 31st January, 1971, and inspected the site. He state that he did not find the grain scattered on the place of occurrence which was pointed out to him, as the site where the rape was committed on Mst Jamna. It is worthy to note that this site was not pointed out by Mst. He state that he did not find the grain scattered on the place of occurrence which was pointed out to him, as the site where the rape was committed on Mst Jamna. It is worthy to note that this site was not pointed out by Mst. Jamna to the Investigating Officer. 9. The statement of Mst. Jamna was not found to be worthy of credence by the trial Court so far as it relates to the incident of commission of rape on her. The learned trial Judge did not place reliance on the testimony of the other two witnesses, i. e. PW 2 and PW 3 so far as the commission of rape was concerned. These two eye-witnesses, PW 2 and PW 3, however, did not say, nor can they depose to that effect because they had seen the incident at a latter stage as to how the modesty of Mst. Jamna was outraged by the accused-persons These two witnesses reached the place of occurrence when both the accused-persons had left that place. However, they say that they had seen Asaram putting on his Dhoti and Mst. Jamna was in a lying position. The learned counsel for the appellant criticised the statement of Mohan Das PW 2 as testimony of a chance witness, as he was a Pujari of a temple situated in the town of Bikaner. This witness has shown his residence at two places. Bikaner and Dasnu, His name does find place in the books of Devasthan Department for performing the 'Puja' of the temple at Bikaner. His presence on the spot of occurrence was, therefore, a matter of chance only PW2 Sohan Singh states that he had seen the blood on the Odhana of Mst. Jamna, and there was injury on her lips But this Odhana was not seized by the Investigating Officer; nor does this deposition that there was injury on her lips find corroboration from the medical testimony. In these circumstances, it will not be safe to place reliance on the statements of PW 2 and PW.3. Mst. Jimna's statement also cannot be believed as it does not find corroboration from the medical testimony. Delay in registering the case, which has not been properly explained by the husband of the prosecutrix also casts doubt on the correctness of the prosecution story. Mst. Jimna's statement also cannot be believed as it does not find corroboration from the medical testimony. Delay in registering the case, which has not been properly explained by the husband of the prosecutrix also casts doubt on the correctness of the prosecution story. When Moolaram returned to his village after getting the information of this incident on 27th January, 1971, there was no person reason why could not have lodged the report without any loss of time. First information oration Report Ex P 5 is dated 29th January, 1971, but it was produced at the police station on the 30th January, 1971. When the witness Moola Ram PW 4 explained the cause of delay in filing the First information Report on 30th January, 1971 he stated that the report was registered on the day it was got. Scribed is obviously false, as the date put on the report Ex.5 is 29/1/1971. The leisure way in which the husband of the prosecutrix proceeded to lodge the information at the Police station further weakens the case of the prosecution. 10. Looking to the overall circumstances, I find it difficult to sustain the conviction of the accused persons under Section 364, Indian Penal Code, specially when the story of rape as given out by the prosecutrix, & supported by the eye-witnesses has been discarded by the trial Court. The story of the prosecution so far as it relates to the commission of the offence under Section 376 Indian Penal Code was found to be false and therefore the testimony of the prosecution witness has also become doubtful to prove the prosecution case for an offence under Section 364, Indian Penal Code 11. For the reasons mentioned above, the benefit of doubt is given to the accused-persons, and they are acquitted of the offence under Section 364 Indian Penal Code They are on bail, they need not surrender their bail bonds which are hereby cancelled. *******