The conviction for attempted rape was reversed due to unreliable witness testimony and lack of corroborative evidence.

JUDGMENT :

KUMAR SRIVASTAVA JUDGEMENT, J.

1. Present appeal has been filed for setting aside the judgment of conviction and order of sentence dated 26.09.2006 and 27.09.2006 respectively passed by learned Additional Sessions Judge-FTC, Koderma in Sessions Trial No.405 of 1997 arising out of Jainagar P.S. Case No.18 of 1997 (G.R. No.16 of 1997) whereby and whereunder, the appellant has been held guilty for the offence under sections 376 r/w 511 of Indian Penal Code and sentenced to undergo R.I. of 5 years.

FACTUAL MATRIX

2. Factual matrix giving rise to this appeal is that on 04.04.1997 at about 8:30 P.M., the informant-victim went out from her house to fetch water from the government hand pump and after taking water, as the victim set to return back to her house, the accused Kallu Mian uplifted her from behind. Upon raising alarm, other co-accused Faguni Mian gagged her mouth while the accused Minhaj Mian was watching the movement of villagers. In course of uplifting the victim, the bucket fell down from her hand, then hearing the sound of falling bucket, father of victim came out from the house and started shouting calling who is there, meanwhile, all accused persons took the victim in the field and laid down her on earth and lifted her saree with intention to commit rape, in the meantime, her father reached at the place of occurrence and raised alarm, on which all the accused persons fled away.

3. On the basis of above information, FIR being Jainagar P.S. Case No.18 of 1997 was registered for the offence under sections 376/511 r/w Section 34 of IPC . After completion of investigation, charge-sheet was submitted against the appellants. After taking cognizance, the case was committed to the court of Sessions, where S.T. Case No.405 of 1997 was registered.

The trial was proceeded against the present appellants. They denied from the charges and claimed for trial. In the course of trial, altogether 8 witnesses were examined by the prosecution including the victim lady. No documentary evidence has been adduced on behalf of the prosecution.

4. On the other hand, the defence has also examined D.W. 1 Raj Kumar Singh and D.W. 2 Abdul Hakim. However, no documentary evidence has been adduced by the defence. The specific plea of defence is denial from occurrence and false implication due to previous enmity regarding cutting of tree.

5. Learned trial court after appreciation of oral evidence adduced by the parties has held the appellants guilty for the offence under sections 376 r/w 511 ofIPC and sentenced as stated above, which has been assailed in this appeal.

6. Learned counsel for the appellants has submitted that the learned trial court has failed to properly appreciate the evidence of the witnesses rather convicted the appellants on hypothetical grounds. Learned trial court has failed to consider that the victim girl herself was a married lady and the accused persons are close door neighbours having their own property adjacent to the house of the informant. Admittedly, it was dark night as time was 8:30 P.M., the victim girl has clearly admitted that she was not acquainted with any of the accused persons prior to the incident. Therefore, she was not able to identify the accused persons behind the dock. The father of the victim has also claimed that it was a dark night and after hearing the sound of fall of bucket, he went towards the field and saw from a distance of 15 meters that the accused persons were fleeing away. The source of identification of the accused persons is not convincing and reliable. This witness also admits that there was previous enmity with the accused persons for a tree. Therefore, the entire prosecution story is out and out a false and manipulated incident. Other witnesses examined in this case as well as the defence witnesses have also proved that no such type of occurrence has taken place on the relevant date and time rather the appellants have been falsely implicated in this case due to previous enmity between the i