J.K. MOHANTY, J.

(1.) This appeal was filed by the complainant Smt. Sashi Rout after obtaining special leave of the Court as required under section 378(4), Criminal Procedure Code against the order of acquittal of the accused persons passed by the Judicial Magistrate First Class, Baramba.

(2.) The case of the prosecution is as follows: On 21-6-1978 respondent Gopal bandhu Sarangi, a Junior Engineer of the Telegraph Department, along with one Sibaprasad Behera (since acquitted), another Junior Engineer, came to the door of the complainant when her husband Managobinda Rout (P. W. 7), who was a Line Man in the said department, was absent. The accused persons wanted to search the house of the complainant alleging that P.W. 7 had committed theft of telephone poles and kept them inside the house. The complainant protested and suggested that they may search the house in presence of her husband. At this, it is alleged, accused-respondent Gopal bandhu Sarangi abused her in filthy language. The other accused directed Gopal bandhu to forcibly enter into the house and conduct the search. The complainant stood at the door and did not allow them to enter. Then accused-respondent Gopal bandhu gave a push to her right shoulder and forcibly entered into the house. However, nothing incriminating was recovered from the house. It is alleged that by such false accusation, the prestige of the complainant and her husband was lowered. So a complaint was filed on 24-6-1978 and the Magistrate took cognizance of offence under sections 448/352/500/34, Indian Penal Code.

(3.) The accused persons admitted to have gone to the village of the complainant on 21-6-1973 under the orders (Ext. D) of the S. D. 0. to make inquiry if Managobinda Rout had posted an electric pole in front of his house for taking electric line to his house. They, however, denied the allegations made by the complainant (P.W. 1). Their further case is that prior to the alleged occurrence, a departmental proceeding was started against P. W. 7 for misconduct and immoral activities arid they had inquired into the allegations and submitted report against P.W. 7, P.W. 7 was present in his house and seeing them he concealed his presence and apprehending that he might face another departmental proceeding for using the pole unauthorized, he has set up his wife to bring this false case against them.

(4.) Seven witnesses were examined on behalf of the prosecution. P. W. 1 is the complainant and P.W. 7 is her husband. P.W. 2, 3 and 4 are eye-witnesses to the occurrence and P. Ws. 5 and 6 are Dost-occurrence witnesses. On behalf of the defence, accused-respondent Gopal bandhu Sarangi examined himself as D.W. 1. The learned Magistrate, after considering the evidence on record held that the complainant has failed to prove the case beyond reasonable doubt and acquitted the accused persons. Hence this appeal.

(5.) Though appeal was filed against both the accused persons, the Court granted leave to appeal only against Gopal bandhu Sarangi. Now, a memo has been filed that appellant Sashi Rout is dead and the appeal has abated in view of section 394, Criminal Procedure Code.

(6.) Section 394, Criminal Procedure Code reads as follows: 394. Abatement of appeals-(1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall abate on the death of the appellant. Provided that where the appeal is against a conviction and sentence of death or imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal not abate. Explanation-In this section, near relative means a parent, spouse, lineal discendant, brother or sister. This section corresponds to Section 431 of the old Code. The old section is split into subsections (1) and (2) of the present section 394. The words and figures Section 377 or Section 378 are substituted in sub-section (1) of the present section in the place of words and figures Section 411- A sub-section (2) or Section 417 in the old Section. The proviso to sub-section (2) and the explanation are newly added. On a plain reading of the section it appears that an appeal abates only on the death of the accused. It does not state that such an appeal will abate on the death of the complainant. In a decision reported in Khedu Mohton and others v. State of Bihar1, it has been held: An appeal under section 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other. The same view has also been taken by the Rajasthan High Court in the case of Murari Lal v. Ram Swaroop and others2. As already indicated, Section 377 or Section 378 have been substituted in sub-section (1) of Section 394, Criminal Procedure Code (new) in place of Section 411- A sub-section (2) of Section 417 in Section 431, Criminal Procedure Code (old), and the proviso to sub-section (2) and the explanation has been newly added. So, I am of the view that this appeal will not abate.

(7.) In this case the complainant has examined herself as P.W. 1. The other eye-witnesses are P.Ws. 2,3 and 4. P.W. 1 has stated that when she asked the accused persons to search the house after her husband comes, the respondent abused her saying Choro Sala Hajatuni Maikinia ku Ebhali training Deichhi je Amaku Gharo Chhaduni. Thereafter, on the direction of the other accused, the respondent pushed her and entered inside the house. In explaining the delay in lodging the FIR. she has stated that the delay was due to the fact that her husband was not granted leave in order to come earlier for conclusion. In cross-examination she first stated that she had not known the accused persons prior to the occurrence, but then stated that she had seen both the accused persons at Nuapatna Telephone Office. She has also stated that when the accused persons attempted to enter into the rooms, she did not obstruct them by stretching her hands. She was standing against the door frame. She has admitted that the width of the door may be about three feet and one man can enter through the said door if the person standing against the door frame of a turn. By taking turn she meant Pakhei Gale, meaning moving away to some distance. P. W. 2 has stated that hearing hullah he came to the house of P.W. 1. At that time the complainant was standing on the door. Sarangi Babu pushed the right arm of the complainant and entered inside the house. Through the window he could see that Sarangi Babu, after searching the house of P. W. 1, went towards the Ban and abused P.W. 1. While pushing, Sarangi Babu told Gihali Bajatuniku training Deichhi Je Amaku Gharo Chhadi Debo Nahi. Chor Badmash Electric Khunti Aani Tikitiki Kari Ghare Puraichhi. P.W. 3 has stated that he found P.W. 1 standing on the door frame (first said on the wall) as a result of which no one could enter through that entrance. Sarangi Babu asked P W. 1 to allow him to search her house saying Sala Managovinda office Jinisha Chorikari Ghare Rakhichhi. In cross-examination he has stated that before entering into the rooms the accused did not utter Bajatuni etc.. P.W. 4 has also narrated the incident and has stated that accused Sarangi told, Sali, Bedha Maikinia Gharaku Chhadideuni. Then Sarangi Babu gave a push to the chest near right upper arm of the complainant and entered into the two rooms.

(8.) D.W. 1 has stated that on the written orders (Ext. D) of the S. D. 0., Phones, he went on 21-6-1978 to the house of P.W. 7 and took photograph of the pole which was placed in front of the house of P.W. 7. He has submitted his report (Ext. E). He has stated that earlier to this incident there were allegations against P.W. 7 regarding keeping of a woman inside the Telephone Exchange and Ext B is the complaint which he has signed. He suggested for transfer of Managovinda, which he proved as Ext. H. The S. D. 0., on receipt of the report, called for an explanation from P.W. 7 for compulsory retirement, which has been proved as Ext. 3. He has also stated that Managovinda was present at the time of occurrence, but he did himself.

(9.) In this case the fact that the respondent along with the other accused had been to the house of P.W. 7 on 21-6-1978 is not disputed. The allegation of the complainant is that she was abused in filthy language and respondent made forcible entry inside the house by pushing her. On the other hand, the plea taken by the accused persons is that they had been to the house of P. W. 7 on the direction of the S. D. 0. for making inquiry regarding the theft of telephone pole and they have only taken photograph of the pole which was there in front of the house of P.W. 7 and a false allegation has been made against them in order to harass them due to previous grudge. The learned Magistrate, after considering the evidence on record came to hold that the prosecution has not proved the case beyond reasonable doubt. The evidences of P.Ws. 1 to 4 are contradictory on material particulars. On this finding he gave the benefit of doubt to the respondent.

(10.) After hearing argument of both sides, considering the evidence on record and in the facts and circumstances of the case 1 do not see any reason to differ from the view taken by the learned Magistrate. The appeal has no merit and is accordingly dismissed. However, it is made clear that any observation made by the Magistrate or by this Court regarding this case shall not be taken into consideration in any subsequent proceeding, if initiated. Appeal dismissed.