JUDGMENT 1. - This criminal appeal by appellant Bhanwar Lal arises out of the judgment and order dated 5.8.1985 passed by the learned Sessions Judge, Ajmer, by which the learned trial Judge has convicted the appellant for offence under Sections 366, 354 and 323 Indian Penal Code and sentenced him in the following manner : For offence under Section 366 Indian Penal Code : Rigorous imprisonment for three years with a fine of Rs. 200/-, in default thereof, to further undergo rigorous imprisonment for one month; For offence under Section 354 Indian Penal Code : Rigorous imprisonment for one year. For offence under Section 323 Indian Penal Code : Rigorous imprisonment for one month. The prosecution story, in nut shell, is that in the night of 13.8.1984 Smt. Santosh w/o complainant Munna Singh was sleeping with her husband in a room of the quarter in occupation of her father Mohan Singh, situated in Dak Bungalow, Ajmer. Her elder sister was sleeping with her husband in a Verandah. At about 2.00 A.M. when Smt. Santosh came out in the open place to urinate, the accused-appellant, an employee at the Perol Pump situated behind the Dak Bungalow, caught hold of her and forcibly took her to the Petrol Pump, made her to fall on the ground in a room of the petrol pump, bolted the door and then attempted to commit rape on her. In the meant-time, having found that Santosh has not returned, her husband aroused her brother-in-law Jethu Singh and then both of them left the quarter in search of Santosh. Having heard the weeping of Santosh, they went to Petrol Pump and entered inside the room through window which opened by push and brought out the appellant. It was further alleged that when they were trying to bring the appellant to the police station, he also belaboured them. 2. With the above allegations, complainant Munna Singh lodged an oral report at Police Station, Sadar Kotwali, Ajmer, upon which a case for offence under Sections 366, 376/511 and 323 Indian Penal Code was registered vide FIR Ex.6 and 3. In the course of investigation, site plan was prepared, a baniyan stained with blood, belonging to complainant was seized, the accused was arrested and prosecutrix was subjected to medical examination. After usual investigation the police submitted a charge-sheet against the appellant. 4. In the course of investigation, site plan was prepared, a baniyan stained with blood, belonging to complainant was seized, the accused was arrested and prosecutrix was subjected to medical examination. After usual investigation the police submitted a charge-sheet against the appellant. 4. The learned trial Court, on the basis of evidence and material collected during investigation, framed charges against the appellant for offence under Sections 366, 323 and 354 Indian Penal Code. The appellant denied the charge and claimed trial. 5. In order to prove its case, the prosecution examined 6 witnesses and got exhibited some documents. The accused was then examined under Section 313 Criminal Procedure Code He did not examine any witness in his defence. 6. At the conclusion of trial, the learned trial Judge found the prosecution case, as alleged proved and accordingly convicted and sentenced the appellant in the manner stated hereinabove. Hence the present appeal against conviction. 7. I have heard learned counsel for the parties and perused the impugned judgment, the evidence and material on record. 8. Having scanned the evidence both ocular and documentary brought on record during trial and taking into consideration the entire circumstances and the manner in which the incident happened, it cannot, by any stretch of imagination, be said that such incident took place. 9. PW1 Smt. Santosh has deposed that in the night of 13.8.1984 she alongwith her husband was sleeping in a room of the quarter in occupation of her father, situated in Dak Bungalow. Her father was chowkidar of Dak Bungalow. In the night at about 2.00 A.M. she came out of the Bungalow to urinate and the moment she sat the urinate, the accused-appellant gagged her mouth, lifted her in his lap, took her inside the room of the petrol pump, bolted the door, switched off the light, put off his clothes, over powered her by extending threat and then tried to commit rape on her. In the meantime, her husband and Jethu Singh her brother-in-law (Jeth) opened the window of the room and entered inside, Soon their reaching, quarrel started between the accused on the one side and her husband and Jeth on the other. While quarrel was going on, she left the place and came to her house, where she did not disclose the incident to any one present there. While quarrel was going on, she left the place and came to her house, where she did not disclose the incident to any one present there. According to her Jethu Singh was sleeping in a Verandah of the Dak Bungalow. Similar is the statement of PW2 Jethu Singh, her Jeth, Munna Singh, her husband has not been examined in evidence. 10. In cross-examination, the witness deposed that there is a chowk, two rooms, kitchen and a bath room in the quarter of Dak Bungalow. She had come out to urinate after informing her husband. She further stated that after the accused had lifted her, she tried to get rid of his clutches and in that process he fell down and went few steps. However the accused again caught hold of her. As a result of her falling on the ground, she sustained injury on her stomach and she had shown this injury to the doctor. According to her it was an internal injury and there was no sign of injury on her stomach. She stated that accused always used to watch her from the petrol pump and therefore her brother-in-law (Jeeja) had suspicion over the appellant and that being the reason, when she did not return, her husband got her 'Jeeja' awakened. She further stated that having caught her, the accused made her to sit at the boundary wall and kept on holding her hand and jumped the wall and went to the other side. Thereafter the appellant lifted her in his lap and took her to the petrol pump. She made it clear that she did not jump from the wall. Lastly, she stated in his cross examination that it is incorrect to say that no incident took place with her, but at the same time she admitted that it is true that her husband and Jeth went to the petrol pump, belaboured the appellant and then lodged a false report. 11. The evidence discussed above completely falsifies the allegation against the appellant. 11. The evidence discussed above completely falsifies the allegation against the appellant. The circumstances and the evidence on record clearly suggest that no such incident took place and if at all any such incident took place, the appellant cannot be made accused of such incident, inasmuch as it was PW1 Santosh herself who at her own accord went to the appellant to the Petrol Pump, which would be evident from the following salient features of the case : (1) PW1 Smt.Santosh had no reason to come out of the quarter for urination inasmuch as the prosecution evidence clearly disclose that there existed a bath room in the quarter itself. She herself has admitted the existence of a bath room in the quarter. (2) It is evident from the site plan and the statements of witnesses there is a boundary wall around the Dak Bungalow. The height of the wall is 4 feet. According to the victim when she came out to urinate, the accused came there, gagged her mouth, lifted her in his lap and then took her to the Petrol Pump. This statement of the victim puts a question mark whether the appellant was expecting that victim would certainly come at 2.00 A.M. in the late night for urinating and therefore, he should remain present inside the Dak Bungalow ? The answer would be in negative. In my firm view, it could only be possible when it is pre-decided between the two; (3) According to the victim she sustained injury on her stomach as a result of her failling from the lap of appellant. However, the doctor did not notice any injury on her person. Further, it is the categorical admission of victim herself that she did not sustain any external injury; (4) According to the victim, the accused first lifted her and then made to sit at the boundary wall of the height of 4 feet and thereafter by holding her hand, he jumped the boundary wall. Firstly, it appears to be highly improbable that appellant jumped the boundary wall while holding her hand. Further, the victim had an ample opportunity to ran away or to atleast raise an alarm at the time when appellant jumped the wall. Firstly, it appears to be highly improbable that appellant jumped the boundary wall while holding her hand. Further, the victim had an ample opportunity to ran away or to atleast raise an alarm at the time when appellant jumped the wall. It appears to be pre-decided between the victim and the appellant to meet at such time when all of the members of her family would be in deep sleep; (5) The victim has stated that "it is correct to say that no incident took place." But at the same time her admission is that her husband and 'Jeth' went to the Petrol Pump, belaboured the appellant and then lodged a false report. (6) Her statement that appellant used to watch her from the petrol pump and therefore, her brother-in-law (Jeeja) had suspicion on her, can also be one of the reasons for false implication of appellant. (7) It is established from the injury reports that Munna Singh and Jethu Singh went to the Petrol Pump and belaboured the appellant, inasmuch as there were 3 injuries on the person of appellant, whereas Munna Singh and Jethu Singh had one injury each on their persons. 12. For the reasons aforesaid, I have no hesitation in holding that the trial Court has not appreciated the evidence in true perspective and has fallen into error in arriving at a conclusion of guilt. Thus, the conviction of appellant cannot be sustained and is liable to be set aside. 13. Consequently, this appeal succeeds and is hereby allowed. The conviction of the appellant under Sections 366, 354 and 323 Indian Penal Code is set aside and he is acquitted of the charges. He is already on bail. He need not surrender to his bail bonds, which are hereby cancelled.Appeal allowed. *******