The judgment established the distinction between an attempt to commit rape and outraging modesty, emphasizing the need for evidence of the accused's intention and determination to gratify his passions despite resistance.

The present criminal appeal has been preferred against the judgment of conviction and the order of sentence dated 06.02.2006 passed by the learned Sessions Judge, Hazaribagh in S.T. No. 321/2003 whereby the appellant has been convicted for the offences under Sections 376/511 of IPC and has been sentenced to undergo R.I for 5 years with a fine of Rs.5,000/- and in default of payment of fine, to undergo further S.I for five months.

2. The prosecution case in brief, as stated in the fardbeyan of the informant/victim (Gita Devi) recorded on 09.07.2002, is that she had gone to the clinic of the appellant situated at Village-Sondiha along with her husband Mangru Mahto at about 10 A.M. The appellant called her inside the clinic and her husband was told to stay outside. The appellant told her to take out her dress. Though she restrained, yet the appellant started taking out her ‘Saree’ and ‘Blouse’ and molested her breast. The appellant also took out his ‘Paijama’. When she raised Hulla, her husband rushed inside the room and caught the appellant. Thereafter, several persons gathered there, they assaulted the appellant and took him to the police station.

3. On the basis of the fardbeyan of the informant, the police registered an FIR being Mahuatand P.S. Case No. 22 of 2002 under Sections 376/511 of IPC against the appellant. After investigation, the police submitted the charge sheet on 31.08.2002. The case was committed to the Court of Session for trial. The charge was framed under Sections 376/511 of IPC against the appellant.

4. In order to substantiate the charge against the appellant, the prosecution examined altogether three witnesses. P.W.1 (Kishun Mahto) is a hearsay witness. P.W.2 (Mangru Mahto) is the husband of the informant. P.W.3 (Gita Devi) is the informant/victim.

5. The defence has also examined three witnesses. D.W.1 (Durga Prasad), D.W.2 (Md. Safiullah) and D.W.3 (Israil).

6. The learned Trial Court, after appreciating the evidence of the prosecution witnesses and the materials available on record, convicted the appellant under Sections 376/511 of IPC and sentenced him to undergo R.I for 5 years with a fine of Rs.5,000/- and in default of payment of fine, to undergo further S.I for five months.

7. The learned counsel for the appellant submits that the prosecution has failed to prove the charge under Sections 376/511 of IPC. There is no material on record to suggest that the appellant made an attempt to commit rape upon the informant. The prosecution witnesses are highly interested persons and their evidence was required to be examined very carefully. The testimony of P.W.1 also does not help the prosecution, as he is a hearsay witness. The non-examination of the investigating officer has caused serious prejudice to the defence and as such the benefit of doubt may be given to the appellant.

8. Per-contra, the learned APP submits that the prosecution has sufficiently proved the allegation against the appellant and as such he was rightly convicted by the learned Court below. Merely due to non-examination of the investigating officer, the entire case of the prosecution does not vitiate, if otherwise, the prosecution witnesses have sufficiently proved the prosecution case. It is further submitted that in case of rape, the evidence of the victim is sufficient to punish the accused and the burden of proof lies on the accused to contradict her testimony by adducing sufficient evidence.

9. Heard learned counsel for the parties and perused the materials available on record.

10. To appreciate the contentions of learned counsel for the parties, I have gone through the evidence led by the witnesses in support of their case. P.W.1 has stated that on hearing ‘Hulla’, several persons gathered at the place of occurrence and found the victim in half-naked position. The victim told that the appellant was trying to commit rape on her. Thereafter, the people assaulted him and took him to the police station. During his cross-examination,