The absence of penetration negates conviction under Section 376/511, but the act of attempting to outrage modesty warrants conviction under Section 354 IPC.

JUDGMENT :

This appeal is directed against the judgment of conviction and order of sentence dated 19.12.2018 and 21.12.2018, respectively, passed by the learned Additional Sessions Judge, F.T.C-IInd, Bettiah, West Champaran in S.Tr. No. 379/2015 (arising out of Bhangaha P.S. Case No. 34 of 2013) whereby and whereunder the appellant has been convicted U/s 376/511 of the Indian Penal Code, and has been sentenced to undergo R.I. for five years and to pay a fine of Rs. 5,000/- under Section 376/511 of the Indian Penal Code and in default of payment of fine, he shall have to undergo further R.I. for one month.

2. The prosecution case, in brief, is that on 29.08.2013 in the midnight, the informant, namely Jayanti Kumari aged about 18 years was sleeping inside her room, and her family members including mother, father, and brother had gone to attend the Kirtan. The accused-appellant entered inside the house by breaking the Tatti and tried to outrage the modesty of the victim-informant and on halla, her mother and brother came there but the accused fled away.

3. After investigation, the police submitted charge-sheet under Sections 341, 323, 504, 376, 511 and 506 of the Indian Penal Code and the learned C.J.M., Bettiah took cognizance. The case was committed to the Court of Sessions vide order dated 27.07.2015. In support of the case, the prosecution has examined five witnesses and they are P.W-1; Jayanti Kumari (the victim-informant), P.W-2; Arun Kumar Das (brother of the informant), P.W-3; Surdhani Devi (mother of the informant), P.W-4; Bimal Chandra Das (cousin of the informant) and P.W-5; Naresh Chandra Das (father of the informant). The written report of the informant is marked as Ext-1 and the signature of P.W-2 over the written report is marked as Ext-1/B. The I.O. of the case has not been examined, which seriously prejudiced the appellant’s case, since contradiction could not be drawn, where the informant had tried to develop her case from the fact what she had stated in her written report and none of the prosecution witnesses except the P.W-1 can be the eyewitness to the occurrence.

4. It has been submitted by the learned counsel for the appellant that the trial court ought to have considered the fact that the alleged time of occurrence is of at 12 night and the informant has not stated in her written report that there had been any source of light or lantern to what she has said in her evidence. In the written report, the informant says that the appellant caught hold and teased her which does not make out a case of attempt of rape. The informant P.W-1 has stated that she was alone in the house since her parents and brother had gone to attend a Kirtan and as such the story of arrival of Arti Devi and Bimal Chandra Das, without opening the door becomes improbable since it is being stated by the witness that the accused had entered into the house by breaking the “Tatti”.

5. Learned counsel for the appellant next submitted that the alleged occurrence is of midnight and there was no occasion for anyone to see or to identify the alleged offender, even in fleeing, whereas there was no occasion for anyone to witness the incident of an attempt of rape when the informant was alone in the house. The I.O. of the case has not been examined in the case which has caused prejudice to the case of the appellant since the contradiction could not be drawn especially where the prosecution witnesses and even the informant P.W-1 have developed the case different from what they have stated before the police during investigation. P.W-1 has stated that all the family members reside in one room hut which was closed from inside. She has not stated in the F.I.R. that the “Tatti” was even damaged but subsequently the story of breaking the Tatti was brought in existence but the none examination of I.O. makes the same to be worthless.

6. Learned APP for the State has supported the conviction and supported the punishment awarded to the appellant. The defence of the