ROHIT B. DEO, J.

1. Challenge is to the judgment and order dated 29.12.2005 rendered by the 2nd Adhoc Additional Sessions Judge, Amravati, in Special Case 2 of 2005, by and under which, the appellant-accused is convicted for offence punishable under section 452 of the Indian Penal Code (“IPC”) and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs. 500/- and is further convicted for offence punishable under section 354 of the IPC and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs. 500/-.

2. Heard Shri Anil Mardikar, the learned senior counsel for the accused and Shri V.P. Maldhure, the learned Addl. Public Prosecutor for the respondent-State.

3. The genesis of the prosecution lies in oral report lodged by the prosecutrix (PW-1) at Police Station Tivsa on 25.6.2004 at 8.45 a.m. alleging that on 24.6.2004 at 1.00 p.m. the accused entered her house and outraged her modesty. The prosecutrix, who then was aged 14 years states that she resided with her father. Her mother and two younger brothers reside separately due to a matrimonial dispute between her mother and father. She was sleeping in the house after having meals and her father had gone to graze cows. She felt some weight on her person, opened her eyes and saw the accused lying on her person. The accused was holding her by shoulders. She shouted, the accused did not get up from her person, on hearing her shouts, her paternal uncle's wife who is a neighbour arrived at the scene. The accused was pulled away by her aunt by the collar. The accused fled and was seen by Mandabai Ghorpade and Sunandabai Khadsare fleeing. Her father returned home in the evening, the prosecutrix disclosed the incident to her father and the next day morning the report was lodged.

4. The printed First Information Report is Exh.11 on the record of the trial court. On the basis of the report offence punishable under section 452 and 354 of the IPC was registered against the accused. Subsequently, the accused was also charged under section 3(1)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (Atrocities Act). Investigation ensued, upon completion of which, charge sheet was submitted in the Court of Judicial Magistrate First Class, Chandur Railway, who committed the case to the Sessions Court. The learned Sessions Judge framed charge (Exh.2) under section 354, 452 of the IPC and under section 3(1)(xi) of the Atrocities Act. The accused abjured guilt and claimed to be tried. The defence is of total denial and false implication. In response to question 24 in statement recorded under section 313 of the Code of Criminal Procedure, the accused states thus:

“Question 24: Why the prosecution witnesses are deposing against you?

Answer: I use to sell vegetables. Rs. 144/- was due towards Padmabai as she purchased vegetable on credit. I made demand of Rs. 144/- to her. She refused to give the same. I use to go at the house of Prakash Nagle. There was disputed terms between Padmabai and Prakash. Hence she lodged false report through Savita and deposing false.”

The accused examined DW-1 Prakash Nagale in defence.

5. The learned senior counsel Shri Anil Mardikar submits that the delay in lodging the First Information Report is destructive of the credibility of the prosecution case. Sunandabai and Mandabai, who according to the prosecutrix saw the accused fleeing, were not examined. The failure of the prosecution to examine material witnesses casts a shadow of doubt on the reliability of the evidence of the prosecution witnesses, is the submission. The defence of false implication, is more than probabilized on the touchstone of preponderance of probabilities, is the further submission.

Per contra, the learned Additional Public Prosecutor Shri V.P. Maldhure submit that the defence that some amount was due and payable by PW-2 Padmabai to the accused and the resultant dispute is the cause of false implication, is not even