JUDGMENT :

(Bibek Chaudhuri, J.)

1. In the instant appeal under Section 373(2) of the Code of Criminal Procedure (hereinafter described as the Code), the convict/appellant has assailed the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Khatra in Sessions trial No. 3 (10) of 2014 corresponding to Sessions Case No. 10(7) of 2013 thereby convicting and sentencing him to suffer rigorous imprisonment for three years and also to pay fine of Rs. 1,000/-with default clause for committing offence under Section 354 of the Indian Penal Code.

2. At the outset it is pertinent to note that though the trial Court framed charge against the appellant under Section 376/511 of the Indian Penal Code, the learned trial Judge on appreciation of evidence , both oral and documentary found that the prosecution failed to bring home the charge under Section 376/511 of IPC against the accused. However, there is sufficient material to hold that the accused committed offence under Section 354 of the Indian Penal Code and accordingly the learned Court below convicted and sentenced the accused to suffer imprisonment for three years under the provisions of Section 222 of the Code.

3. Prosecution case germinated with lodging of an FIR by the daughter of one Anil Lohar (hereinafter described as the victim ). In the written complaint she alleged that on 10th July, 2012 at about 5.30 a.m. she went to an open place near a pond to attend nature’s call. While she was returning, the accused caught hold of her, touched her breast and other parts of body, then forcibly laid her down on the ground with the intention to commit rape upon her.

4. However, the victim somehow managed to get out of the clutches of the accused and returned home. She could not tell the incident to any of her family members out of shame on the date of occurrence and also on the following days . Only on 13th July, 2012, she informed the incident to her parents and other relatives considering her future safety and subsequently lodged complaint in the local P.S. In the FIR it was stated by the de facto complainant that she was a student of class X at the relevant point of time , aged about 16 years.

5. On the basis of the said complaint Indpur Police Station case No. 60 of 2012 under Section 376/511 of the Indian Penal Code was registered, police took up this case for investigation. During investigation statement of the victim girl was recorded under Section 164 of the Code of Criminal Procedure. She was also examined by a Medical Officer. The Investigating Officer also examined and recorded statement of available witnesses, prepared sketch map of the place of occurrence and on conclusion of investigation submitted charge sheet against the accused under Section 376/511 of the Code of Criminal Procedure.

6. It appears from the lower Court record that in order to bring home the charge against the appellant, prosecution examined in all nine witnesses. Amongst them the P.W. 3 is the victim and prosecutrix. P.W. 1 and P.W.2 are the father and mother of the victim respectively. P.W. 4 is the uncle of the victim. P.W. 5, P.W. 6, P.W. 7 and P.W. 8 are all members of Lohar family. P.W.9 is the Investigating Officer of this case.

7. On careful perusal of the evidence on record it is ascertained that except the victim all the witnesses are in the nature of hearsay. They did not see the occurrence. It is pointed out at the very beginning argument by the learned counsel for the appellant that according to the FIR date of occurrence was 10th July, 2012. But the FIR was lodged after three days, that is on 13th July,2012. There is no explanation of delay in lodging the FIR. On the contrary, it is found from the evidence on record that the father of the prosecutrix is a member of village committee. A criminal case was initiated against the members of the village committee for committing murder of the brother of the accused. In the said case some members of the village