Rajendra Saxena, J.:— This appeal has been directed against the judgment dated 1.5.1993 passed by the learned Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, Cases, Dungarpur, whereby he convicted the appellant for the offence under section 354 I.P.C and sentenced him to undergo six months simple imprisonment.

2. Briefly stated the relevant facts are that on 25.4.1990, when prosecutrix P.W 2 Kumari Kalawati D/o Ram Charan, H.C, S.P Office, Dungarpur was returning from the house of her mother's sister (Mausi), her neighbours Raju Dhobi and Ajay took her in a hut and committed rape with her. Thereafter they took her in an abandoned house situated in the Housing Board Colony, Dungarpur, where she was kept till 27.04.1990, and repeatedly committed rape with her. On 27.4.1990, P.W.I Ram Charan, Head Constable, while searching her daughter in the Housing Board Colony, heard her screams. At that time he was accompanied by Laxman Katara, Jivat Ram and Lal Shanker. They went towards that house. Kalawati came out of the house and she did not told anything to her father but narrated her woeful tale to her mother in the night. It is alleged that Ram Charan, Head Constable went to Police Station, Kotwali, Dungarpur for lodging the First Information Report about that incident. At that time appellant Man Singh, A.S.I met him in the Police Station and asked Ram Charan about the whereabouts of Kalawati, Ram Charan thereupon informed that Kalawati was at his house. Appellant told Ram Charan that he would come to his house and interrogate Kalawati and thereafter register the case. It is alleged that the appellant went to the house of Ram Charan the same night at about 11 p.m and interrogated the prosecutrix, Kalawati upto 1 a.m, but she did not utter any word. Thereupon, the appellant told Ram Charan that he would take Kalawati at the Police Station for further interrogation, because she might be feeling shy and embarrassed before her parents. It is alleged that thereupon Ram Charan sent Kalawati alongwith the appellant, who brought her to the Police Station on his motor cycle. The appellant instead of taking her to the Police Station took her inside his residential quarter and committed rape with her. Thereafter the appellant brought Kalawati to her house next day at about 4 a.m and told Ram Charan that since he was proceeding on leave, therefore, he will not register the case and that asked him may be whatever he liked. It is the case of the prosecution that on 30.4.1990, Ram Charan met the Dy. S.P, who directed the S.H.O, Police Station, Kotwali to register the case against Raju and Ajay. It is further the case of prosecution that on 1.4.90, Kalawati disclosed to her mother that on 27.4.90 accused appellant instead of taking her to the police Station had taken her to his residential quarter, where he had committed rape with her. Therupon, Ram Charan submitted a written report dated 2.5.90 to the superintendent of Police, Dungarpur on 4.5.90 against the appellant, whereupon a case under sections 366A, 342 and 376 I.P.C was separately registered against the appellant. On rediological examination the doctor opined that the age of Kalawati was about 15 years. After usual investigation a challan was filed against the appellant before Chief Judicial Magistrate, Dungarpur, who committed the case. The trial Judge charged the appellant for offences under sections 342, 366-A and 376 I.P.C and under section 3(2) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, who denied the indictment and claimed trial. The prosecution examined as many as 15 witnesses. The appellant in his plea recorded under section 313 Cr. P.C denied the prosecution evidence and stated that on the day of alleged incident he was posted as Incharge of the Out Post, Manak Chowk, Police Station Kotwali, that on 27.4.90 about 8 p.m Ram Charan, Head Constable alongwith one junior Engineer had come to the said Out Post and enquired as to whether anybody had lodged a complaint against him. Ram Charan further told him that on 25.4.90 his daughter had eloped and come to his house in the evening of 27.4.90 for taking her clothes and that thereupon he locked her in his house, that he suspected that his neighbour Raju Dhobi had abducted her, that he went to Raju Dhobi's house and inquired from him and that thereupon Raju and his mother quarreled with him and threatened that they would make a complaint against him to the Superintendent of Police. The appellant further stated in his plea that the said Raju Dhobi had filed a complaint against Ram Charan on 28.04.1990, that since he and Ram Charan had undergone the police training together at Udaipur they were close friends, that he apprehended that the family members of Raju Dhobi may not go to the house of Ram Charan and quarrel with him, so he assured Ram Charan that he would be coming to his house. The appellant further stated that thereafter from the police out post he came to his quarter, where his wife was living with him and after informing his wife that he would late, he went to the house of Ram Charan at about 9 p.m and interrogated Kalawati, but she did not utter any word. Thereupon Ram Charan Told him that he was very much worried about the conduct of his daughter Kalawati, who had eloped many times and told him that she should be sent to rescue home (Nari Sadan). Ram Charan further told the appellant that Raju Dhobi and his family members may attack his house in the night, therefore he should take away Kalawati to his residence. The appellant in his plea further stated that thereupon he took Kalawati with him, to whom he treated as her foster daughter and came to his quarter, which was situated near the quarter of S.H.O Ajeet Singh, to whom he also narrated the said incident. The appellant also stated that he alongwith his wife slept in-a room while Kalawati was sleeping in another room, that in the night Kalawati started weeping, that he went to her and patting on the back asked her to sleep, that his wife also asked her to sleep, but Kalawati did not stop weeping, that thereupon at about 4.00 a.m he took Kalawati to her house and entrusted her to Ram Charan. The appellant further stated that at that time Ram Charan told him that Raju Dhobi will file a case against him and requested to arrest Raju Dhobi under sections 107 and 151 Cr. P.C Thereupon he informed him that no case for Raju Dhobi's arrest was made out under sections 107 and 151 Cr. P.C and that he has to go for the marriage of his daughter, he was proceeding on leave and asked him to go to S.H.O, Police Station Kotwali for seeking his remedy. The appellant further stated that on 19.4.90 he proceeded on leave. He also informed him that Ram Charan is in the Habit of blackmailing persons after lodging false cases against them. The appellant also filed a copy of the complaint dated 28.4.90 filed by Ashok Kumar, the father of Raju Dhobi against Ram Charan, copies of certain F.I.R.S lodged by Ram Charan, wherein final reports were given. In his defence, appellant also examined his wife, D.W 1 Smt. Ummed Kanwar, who supported his version. After trial the learned Sessions Judge acquitted the appellant for the offences under sections 366A and 376 I.P.C as also for the offence under section 3(ii)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, but found him guilty for the offence under section 354 I.P.C and sentenced him in the manner indicated above. Hence this appeal.

3. I have heard Shri Sanjay Mathur the learned counsel for the appellant and Shri R.S Rathore the learned Public Prosecutor at length and carefully perused the record of the lower court.

4. The contention of Shri Mathur is that even prosecutrix P.W 2 Kalawati has not supported that prosecution story and as such she has been declared hostile. However, she divorced her earlier version and inventing a new story stated that the appellant took her to his residential quarter and cought hold of her hand and tried to lay her down on the bed, that thereupon she started weeping, that the appellant asked her not to weep and assured her that he will not do anything with her and went away in another room. She further stated that at about 4.30, a.m the appellant again came to her and caught hold of her hand and tried to lay her down, that she again started weeping and thereupon the appellant took her to her house. Shri Mathur has contended that the learned trial Judge has disbelieved the major part of the prosecution story and acquitted the appellant of the offences, for which he was charged, but has placed reliance on the statement of the prosecutrix, which is positively against her initial version of the incident. According to him, the learned trial Judge has committed error of law and fact in convicting the appellant under section 354 I.P.C solely relying on the uncorroborated, inconsistent and untrustworthy testimony of prosecutrix. According to him, since the learned trial Judge has acquitted the appellant for the offence under section 376 I.P.C he could not be convicted for the offence under section 354 I.P.C

5. On the other hand, the learned Public Prosecutor has reiterated the reasoning given by the learned trial Judge and supported the impugned judgment.

6. I have given my thoughtful consideration to the rival submissions and carefully perused the evidence recorded in this case. The alleged offence qua the appellant took place on the night intervening 27th and 28.04.1990, while Ram Charan lodged the written report of this incident as late as on 4.5.1990 The explanation for this inordinate delay given by Ram Charan is that Kalawati disclosed the said incident to her mother on 30.04.1990 There is no explanation whatsoever for the delay from 30.04.to 3rd May, 1990 for not lodging the report against the appellant. Prosecutrix Kalawati also did not disclose the incident to that parents immediately after the appellant had left her at her house in the morning of 28.4.1990 This fact itself raises strong suspicion about the truthfulness of the initial story of the prosecution. Kalawati initially told her mother that the appellant had committed rape with her inside his residential quarter, but during trial she gave up that story and clearly deposed that the appellant did not commit rape with her. She admitted that the appellant had come to her house and interrogated her about the incident of her elopement with Raju Dhobi and Ajay upto 1 a.m in the mid night, but she did not disclose anything to him, that thereupon the appellant told her father Ram Charan that since she was feeling embarrassed and shy before her parents, he would take her to the Kotwali and further interrogate her, to which her father agreed and that thereafter the appellant took her on a motor cycle to his residential quarter situated behind the Kotwali. She specifically stated that the appellant wearing baniyan and under wear came in the court-yard of his quarter and caught hold of her hand and tried to make her sleep on the cot, that thereupon she wept, that the appellant asked her not to weep and assured that he would not do anything with her and went inside the rear room. She further deposed that she kept on sitting on the cot and the appellant did not come to her till 4.30 a.m, when he again caught hold of her hand to make her sleep, that she started weeping loudly, that thereupon he asked her not to weep and again assured that he would not do anything with her and thereafter he took her on his motorcycle to her house. She has clearly deposed that besides that the appellant did not do anything with her. Apparently Kalawati has invented an entirely different story which does not find mention in her police statement. Thus, she has given inconsistent statements at different stages. In my considered opinion Kalawati is not at all a reliable witness.

7. In Kaliya v. State of Rajasthan (1), facts were not disclosed in Police statement by a witness, but were state for the first time in trial and entirely a new story was given. Evaluating the evidence of such a witness, it was held that such a witness had no regard for truth and as such he was not a reliable witness.

8. In the instant case, there are serious infirmities in the statement of prosecutrix Kalawati. Her statement has not been corroborated by any evidence. Therefore, it is unsafe to convict the appellant on such bald, inconsistent and unreliable statement of Kalawati.

9. In Nisar Mohammed v. State of Rajasthan (2), the accused was tried for the offences of trespass and committing rape under sections 451 and 376 I.P.C, but was acquitted for those offences. He was, however, convicted for the offence under section 354 I.P.C on the ground that at least the accused had committed an act which fell within the purview of section 354 I.P.C It was held that the approach of the learned trial Judge was faulty, because it was either an act of rape or no rape at all and it was not the prosecution case that the accused had committed only indecent assault on the prosecutrix. There was delay in lodging the F.I.R This court therefore accepted the appeal and set aside the, conviction and sentence of the accused for the offence under section 354 I.P.C In the case on hand, in the F.I.R and the statements recorded under section 161 Cr. P.C, there is no allegation that the appellant had tried to out rage the modesty of Kalawati. Thus during trial entirely a new case had been put up by the prosecutrix, which can not be accepted to be true, because there is no corroboration.

10. In Jagmalsingh v. The State of Rajasthan (3), the prosecutrix was unsafe to rely upon her statement for indecent assault. It was further held that in an offence under section 354 I.P.C the intention of accused is the crux of the matter and that the appellant can not be convicted only on surmises and conjectures. In the case on hand, prosecutrix Kalawati has not stated that the appellant had made any indecent assault or tried to out rage her modesty, on the other hand she has simply stated that the appellant caught hold of her hand and tried to make her sleep and did not do anything with her. Thus offence under section 354 I.P.C is not made out.

11. From the prosecution evidence, it also stands well proved that the appellant and Ram Charan the father of the prosecutrix, had undergone the police training together and that they were good • friends, that Ram Charan had sent Kalawati alongwith the appellant for interrogation and that the appellant left her to her house next day morning at 4.30 a.m, but at that time Kalawati did not disclose anything about indecent assault made by the appellant. Therefore, in my considered opinion, the learned trial Judge has not correctly discussed, analysed and evaluated the evidence recorded in this case and committed an error of law and fact in convicting the appellant for the offence under section 354 I.P.C

12. In the result, I allow this appeal and set aside the conviction and sentence of the appellant for the offence under section 354 I.P.C