Nisha Gupta, J.

1. This revision petition has been filed against the order dated 7.3.2001 passed by learned Addl. Sessions Judge, Gulabpura District Bhilwara whereby the conviction of the present petitioner under Section 457 Indian Penal Code has been maintained and he has been sentenced for six months simple imprisonment and a fine of Rs. 100/- and in default of payment of fine, to further undergo 15 days simple imprisonment.

2. The short facts of the case are that Mahaveer Prasad has filed a written complaint that his daughter Mena Kumari is studying in local school in class IXth and the petitioner was a tuition teacher to her. About 15 days back, the petitioner while taking tuition of her daughter, used filthy language, hence the father of Mena Kumari discontinued the tuition and the present petitioner has also felt sorry for the above deed. Thereafter on 6.3.1993 at about 4 a.m., the present petitioner after breaking the kelus and bamboos of the roof, entered in the house of the complainant. He caught hold of neck of Mena Kumari. On cries of Mena Kumari, Puspa has awaken and the present petitioner fled away from the house. On this information, FIR has been lodged and after investigation, charge-sheet for the offences under Sections 457, 354 and 509 Indian Penal Code has been filed against the present petitioner. The present petitioner has been charged for the above offence. 10 witnesses have been produced in support of the case of the prosecution. The statement of the accused were recorded under Section 313, Criminal Procedure Code. Three witnesses were produced in defence and after hearing the parties, the present petitioner has been convicted for the offence under Section 457 and 354 Indian Penal Code. The present petitioner has preferred appeal. He has been acquitted for the offence under Section 354 Indian Penal Code but his conviction under Section 457 Indian Penal Code has been maintained and sentenced as stated above. Hence this revision petition.

3. Heard learned counsel for the petitioner and the learned Public Prosecutor for the State and perused the material available on record.

4. The contention of the present petitioner is that the story is quite improbable. The incident is of 6.3.1993, whereas the FIR has been lodged after a considerable delay on 10.3.1993 and no explanation has been placed and this delay is also fatal to the prosecution as prior to this information, the present petitioner has also lodged the FIR against complainant Mahaveer Prasad and the witnesses and just to pressurizer, this FIR has been lodged. No such incident has taken place.

5. The contention of the learned Public Prosecutor is that there is no infirmity in the orders of both the court below.

6. The case of the prosecution is that the present petitioner has entered in the house of the complainant after breaking kelus and bamboos of the roof and he jumped over the wall of adjoining neighbour, but the site plan does not corroborate the story. Per contra, the contention of the investigating officer PW-10 Satya Narayan is that there were no signs of jumping over the wall and bamboos were not broken at the spot. The contention of the present petitioner is that the witnesses can tell lie but not the circumstances and the statement of PW-10 Satya Narayan clearly speaks that no such incident has taken place.

7. It is true that Mahaveer Prasad, Mena Devi and other witness Pushpa Devi has narrated the story but as stated earlier, the story is quite improbable. The narrated incident is that at about 4 a.m. in the morning , the present petitioner has entered the house of the complainant after breaking the roof. He has been acquitted from the offences under Sections 354 and 509 Indian Penal Code and the prosecution has utterly failed to establish the intention of the present petitioner why he has entered in the house of the complainant at about 4 a.m. in the morning after breaking the roof. It has been admitted by the prosecution witnesses that the present petitioner was the tutor of Mena Kumari then there was no occasion to commit any offence with Mena Kumari.

8. PW-4 Sushil, PW-5 Prem Devi are not the eye-witnesses of the incident. They have stated that they saw the present petitioner running. PW-6 Bhag Chand has stated that he saw the present petitioner running but he is not residing in the vicinity of the place of incident as evident from site plan and, admittedly, the present petitioner has lodged FIR against this witness also. PW-7 Harnath has stated that he has not identified the person who was running. PW- Ratan Lal who is witness to the site plan has exceeded all limits and stated that the present petitioner has entered in the house of the complainant after keeping a table along with the wall, but no such fact has been narrated by any other witnesses and the site plan also does not suggest that the present petitioner has climbed over the wall by putting a table along with wall. PW-9 Trilok Chand who is other witness of the site plan has stated that there were signs of jumping over on the wall but the investigating officer has not supported this statement and the site plan(Ex.P.3) also contained no such assertion. This reveals that the prosecution witnesses are highly interested witnesses and want to implicate the present petitioner.

9. Looking at the above that all the witnesses are interested to the complainant, the prosecution story is quite improbable, the circumstances does not corroborate the story, FIR is delayed one, the witnesses have substantially improved their version and no mens rea could have been attributed to the present petitioner for entering the house at 4 a.m. in the morning. The whole prosecution story is improbable. The learned court below has not considered the evidence in right perspective. The defence of the present petitioner that he has also lodged report prior to the present FIR, has not been considered by the court below. Undue reliance has been placed on unreliable evidence and the conclusion and reasoning of the court below is perverse and liable to be rejected.

10. In view of above, this revision petition is allowed and the impugned order is hereby quashed and set aside. The petitioner is acquitted of the charge levelled against him. Since the petitioner is on bail, he need not to surrender to his bail bonds, if not required in any other case. His bail bonds are cancelled.