The main legal point established in the judgment is the requirement of proof beyond a reasonable doubt for a charge under Section 376/511, I. P. C. and the court's discretion to convict under a lesser offence based on the evidence.

( 1 ) THIS appeal has been preferred by the convict-appellant being aggrieved by the judgment and order dated 27-2-97 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh whereby the accused-appellant has been convicted under Section 376/511, I. P. C. and has been awarded a sentence of four years R. I. and a fine of Rs. 400/- and, in default of payment of fine, one months S. I.

( 2 ) BRIEFLY stated, the facts giving rise to the prosecution of the appellant are that P. W. 3 Madan Lal is resident of Village Tamlao while P. W. 4 Smt. Sampat is his wife. P. W. 8 Kum. Sugani is his daughter. Kum. Santosh, who was aged about four years at the time of the alleged occurrence, is their younger daughter. On 2-3-96, Madan Lal along with his wife Smt. Sampat as well as their son P. W. 5 Badri Lal lodged a verbal report at the Police Station, Rawat Bhata that on 1-3-96 at about 8 P. M. they were present at their house. Their children along with Kum. Santosh were playing outside their residence. The appellant, who is also resident of their village, used to visit their house in connection with lifting of dead cattle. The accused came to their house and was sitting outside their residence. Kum. Sugani shouted that the accused had lifted and taken away Kum. Santosh towards their enclosure. On this, both Madan Lal as well as Smt. Sampat came out of their house and ran towards their enclosure. They found that the accused-appellant had become naked by taking out his male-organ from the wearing clothes and Kum. Santosh was felled on the ground and was attempting to insert his penis into private part of Kum. Santosh. They immediately started throwing stones at the accused-appellant and threatened him and this made the accused-appellant to escape from the place of occurrence. Kum. Santosh was taken to her house. There was no mark of injury on the vaginal part of Kum. Santosh. This incident was reported to Kana and Jagannath Bheels. Due to night, they could not reach the Police Station in the night and so the matter was reported at the Police Station on the next day. Consequently, FIR No. 42/96 was registered and the investigation was completed resulting in filing of charge-sheet under Sections 363, 366-A and 376/511, I. P. C. in the court of Civil Judge (JD) and Judicial Magistrate, Rawat Bhata and, on commitment, the trial court charged the accused-petitioner under Section 376/511, I. P. C. only to which the accused pleaded not guilty and claimed to be tried and hence the trial was commenced and, consequently, after examination of as many as 8 prosecution witnesses, examined the accused-appellant under Section 313, Cr. P. C. who denied this incident in toto and further stated that since the prosecution witnesses wanted to extort money from him and he did not oblige them and, as a result, they had falsely given testimony against him. He did not lead any defence evidence.

( 3 ) THE learned trial Judge, after hearing both the sides, convicted and sentenced the appellant resulting in this appeal, as above.

( 4 ) I have heard the learned Amicus Curiae for the appellant as well as the learned P. P. and have also gone through the impugned judgment along with the record of the trial court and considered the same carefully.

( 5 ) THE learned Amicus Curiae, while pointing out towards some of the discrepancies and contradictions in the statements of P. W. 3 Madan Lal, P. W. 4 Smt. Sampat, P. W. 5 Badri Lal and P. W. 7 Kum. Sugani, submitted that all these witnesses of the alleged occurrence are close relations and inter se interested and, therefore, in absence of medical evidence, it becomes quite doubtful whether any incident, as alleged by the prosecution, took place and that it was the accused-appellant who had attempted to commit offence of rape. Alternatively, his further submission is that, though the prosecution has failed to prove beyond reasonable manner of doubt that it was the appellant who committed such an offence but, at any