Conviction under Section 354 of IPC upheld when testimonies of victim and witnesses were consistent and reliable, distinguishing preparation from an attempt in sexual offences.

JUDGMENT :

Ramesh Chand Malviya, J.

Heard Mr. Ajit Kumar, learned counsel for the appellant assisted by Mr. Dinkar Kumar and Mr. Anita Kumari Singh, learned APP for the State.

2. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure Code, 1973 (hereinafter refereed as ‘Cr.P.C’) against the judgment of conviction and order of sentence dated 21.12.2013 respectively passed by the learned Additional Sessions Judge, Sheikhpura in Sessions Trial No. 468 of 2012 arising out of Shekhopursarai P.S. Case 02 of 2012 / G.R No. 18 of 2012 whereby and where under the appellant has been convicted for the offences punishable under Sections 354, 341 and 323 of the Indian Penal Code (hereinafter refereed as ‘IPC’) and sentencing him to undergo simple imprisonment for two years for the offence punishable under Section 354 of the IPC, one month imprisonment for the offence punishable under Section 341 of the IPC and further six months for the offence punishable under Section 323 of the IPC and to pay fine of Rs. 2,000/- and in default of non-payment of fine he shall undergo simple imprisonment for one month. All the sentences shall run currently.

3. The case of prosecution in brief is that on 05.02.2012 at 7:45 pm when the informant Priti Kumari came out from her defecate room situated in her land then the accused caught her hand and after knocking her down opened his lungi and forcibly remover her salwar and tried to assault her sexually. She raised alarm then her grand father Chamari Ram and mother came there and he assaulted to her mother and grand father causing fracture injury on his hand and also used filthy language. Due to late hours she could not go to police station and on next day she lodged the present case.

4. On the basis of the above, case was registered and after completing the investigation, the investigating officer submitted charge sheet under aforesaid Sections. After taking cognizance the learned CJM committed the case to the Sessions Court.

5. On behalf of the prosecution, altogether 8 witness were examined to substantiate the charges leveled against the accused/appellant Raj Kumar @ Seni Mahto. Out of them, PW-1 Chamari Ram (injured), PW-2 Babita Devi (injured), PW-3 Priti Kumari (informant), PW-4 Dr. Mohd. Vasim, PW-5 Prabhu Sao, PW-6 Basant Mahto (declared hostile), PW-7 Janardan Mandal (IO) and PW-8 Ganesh Singh (IO).

6. PW-1 in his examination-in-chief stated that Priti Kumari is her granddaughter and this incident happened nine months ago at 7:30 in the evening. When he was at home, his granddaughter went to defecate. Rajkumar caught his granddaughter and tried to rape her. When his granddaughter screamed, he reached there and started to scream, the accused broke his hand by hitting him with a stick. When he stopped the accused with his hand, it broke in defence. The injury is visible in the hand which is hanging below the elbow and is bent from its natural position. The accused hit and run away. 6.i. In his cross-examination, he stated that in the month of Magh, in the village, people have their dinner and go to sleep by 9-10 pm. He was at home and her daughter-in-law was inside the house. The toilet is also built at his own land at a distance of 4 feet. When he reached there after hearing the commotion. Stick was in the hand of Rajkumar and hit him the moment he came there. He was saved by his daughter-in-law. His granddaughter also saved her. The accused hit him with a stick and on screaming, accused hit him twice again. He also went to the police station and called the police. The inspector came the same day. At 12:00, after the police verification was over, he was treated at the village hospital and was admitted there overnight. Around 2-3 o'clock in the night, a plaster was put on his hand and then he was sent home. It is not that no such incident happened or he used to buy goods from his shop and he was filing a case against him for not paying the money. He had not filed any case against the