JUDGMENT :

Nelson Sailo, J.

1. This appeal is filed by the appellant from Jail against the Judgment & Order dated 07.05.2018 passed by the Court of Addl. Sessions Judge, Siaha in S.R. No. 6/2018 convicting him under Section 448/376(1) r/w 511 of the Indian Penal Code (JJPC) and under Section 3 of the Bengal Eastern Frontier Regulation, 1873 (BEFR) and also against the Order of Sentence dated 08.05.2018 sentencing him to simple imprisonment for 3 (three) months under Section 448 IPC with fine of Rs. 1,000/-, with a default clause rigorous imprisonment for a period of 8 (eight) years with a fine of Rs. 10,000/- under Section 376(1) r/w 511 IPC with a default clause and simple imprisonment for 6 (six) days and fine of Rs. 500 under Section 3 of BEFR with a default clause. All the sentences have been directed to run concurrently.

2. The case of the prosecution is that on 11.09.2017 at around 2:00 AM, a written FIR was lodged by the prosecutrix stating that at around 1:00 AM, the appellant entered her house from the broken skirting of her rented house and he caressed her body and touched her breast. The officer-in-charge of Siaha Police Station therefore registered Siaha P.S Case No. 99/2017 dated 11.09.2017 under Section 451/354 IPC r/w Section 3 of the BEFR and endorsed the case to the appointed Investigating Officer (I.O) for investigation. During the investigation, the I.O visited the place of occurrence and she drew a rough sketch map of the place, examined witnesses and recorded their statements including the complainant. Upon concluding her investigation, the I.O found a prima facie case well established against the accused person under Section 448/376(1)/511 IPC r/w. Section 3 of BEFR and submitted the charge-sheet before the Court. After the charge-sheet was received by the Court, charge was framed against the accused under Section 448/376(1) r/w Section IPC and under Section 3 of the BEFR on 21.02.2018 and to which, the accused pleaded not guilty and claimed for trial. Accordingly, trial was conducted against the accused and in the process, the prosecution examined as many as 4 (four) prosecution witnesses. Upon conclusion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. Thereafter, the accused examined 1 (one) defence witness. After hearing the parties, the learned Trial Court passed the impugned Judgment & Order convicting the appellant and sentencing him in the manner already indicated herein above. Being highly aggrieved with the same, he has filed the instant appeal from Jail.

3. I have heard Mr. Vanlalnghaka, learned Amicus Curiae for the accused appellant and Mr. C. Zoramchhana learned Public Prosecutor for the State-respondent. The learned Amicus Curiae submits that from the deposition of the prosecution witnesses, more particularly the prosecutrix herself, there is no evidence of commission of rape upon the prosecutrix. In fact, there was neither an attempt nor an intention on the part of the appellant to commit rape upon the prosecutrix. He submits that had there really been an intention, the appellant would not have stopped when the prosecutrix awoke from her sleep. Referring to the evidence of the sole defence witness, the learned Amicus Curiae submits that the prosecutrix used to visit the appellant in his workplace to ask him to buy liquor for her. Therefore, it is clear that there was an unnatural relationship between the appellant and the prosecutrix.

4. The learned Amicus Curiae further submits that although the learned Trial Court was of the view that Section 375(c) IPC was attracted in view of the appellant having allegedly caressed the body of the prosecutrix as well as touch her breast, but the fact remains that there was no penetration of the penis of the appellant into the vagina of the prosecutrix or an attempt to do so in order to attract the said provision. Therefore, the conviction of the appellant under Section 376(1) r/w Section 511 IPC is misconceived and cannot be s