The central legal point established in the judgment is the interpretation of the offense under Section 376 read with 511 IPC and the consideration of evidence to establish an attempt of rape based on the appellant's actions.

JUDGMENT

Swarana Kanta Sharma, J. The instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (`Cr.P.C.') has been filed on behalf of appellant seeking setting aside of judgment dated 07.11.2008 and order on sentence dated 11.11.2008 passed by the learned Additional Sessions Judge, Dwarka, New Delhi (`learned Trial Court') whereby the appellant was convicted under Section 376 read with 511 of Indian Penal Code, 1860 (`IPC') and was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- and in default of the fine, to further undergo simple imprisonment for six months. The appellant was also convicted under Section 342 IPC and for the same, he was sentenced to undergo rigorous imprisonment for one year.

2. Briefly stated, facts of the present case are that the present FIR was registered on the complaint of the complainant Malti, i.e. the mother of victims `X. and `Y. aged seven years and five years respectively, wherein it was stated that the appellant/accused Rahul was their neighbour and used to visit their house regularly. It was alleged that on 12.07.2006, when the complainant was not at home, accused Rahul had taken `X. and `Y. to a room, and had forcibly established physical relations with `X', and had tried to do the same with `Y'. Thereafter, when the complainant had returned to her home, she had been informed by her younger son `S' that accused Rahul had confined her daughters`X. and `Y' in a room, and that she also heard the weeping sounds of `X'. Thereafter, the accused had fled from the spot after seeing the complainant. The accused was arrested by police on 13.07.2006.

3. During the course of trial, prosecution had examined 17 witnesses. The material witnesses were PW-9 i.e. Complainant/mother of the victims, PW-4 i.e. `X', PW-10 i.e. `Y', and PW-16 i.e. husband of the complainant.

4. After completion of trial, the appellant was convicted by the learned Trial Court vide judgment dated 07.11.2008 and order on sentence was passed on 11.11.2008. The concluding portion of judgment dated 07.11.2008 reads as under:

"47. In view of the above discussion, it is proved on record that the prosecution has been able to prove beyond all reasonable doubts that the accused confined 'X' in his house and committed the offence of attempt to rape and as such accused Rahul is convicted for the offence punishable u/s 342 IPC as well as u/s 376 read with Section 511 IPC. So far as victim 'Y' is concerned, no offence u/s 342 of confining her or u/s 354 is made out against the accused..."

5. Aggrieved by the aforesaid judgment and order passed by the learned Trial Court, the present appeal was filed. The appeal was admitted vide order dated 11.02.2009 and the sentence of appellant was suspended vide order dated 24.07.2009.

6. Learned counsel for the appellant argues that the appellant/accused has wrongly been convicted by the learned Trial Court. It is stated that the learned Trial Court has failed to take note of the contradictions in the statements of witnesses, and that the prosecution could not prove its case beyond reasonable doubt. It is contended that the complaint was filed by the mother of victims who had stated that the appellant had induced PW-4 and PW-10 to come to his room by offering biscuits, which she had not mentioned in her statement recorded under Section 164 Cr.P.C. As argued, this is an instance of complete contradiction from the version given in the FIR and the statements recorded under Section 164 of Cr. P.C. where it is said that PW-10 was also taken inside the room. It is further submitted that in her statement under Section 164, PW-4 had stated that a wrong act was committed on PW-10 too but in cross-examination of PW-4, there is a contradiction since PW-4 states that PW-10 was outside the room. It is argued that a new detail had emerged in the testimony of PW-10 that the victim's other brother was outside the room where the incident had occurred, which was