Insufficient evidence for intended crime led to the modification of conviction from Section 457 to Section 456 of IPC.

JUDGMENT :

ARUN KUMAR RAI, J.

1. Heard Mr. Pankaj Verma, learned counsel appearing on behalf of the appellant and Mr. Fahad Allam, learned A.P.P. for the State.

2. This appeal is directed against the judgment of conviction dated 09.12.2003 and order of sentence dated 11.12.2003 passed by learned Additional Sessions Judge, Fast Track Court No. VI, Hazaribagh in Sessions Trial No. 210 of 2003 whereby and whereunder, the appellant has been convicted under Section 457 of the INDIAN PENAL CODE and has been sentenced to undergo R.I.for four years.

3. The case of prosecution is based upon the fardbeyan of father of the victim who has stated therein that in the intervening night of 02-03.03.2003, victim 12 years of age and her grand-mother were sleeping in a room and at about 01:30 A.M. in the night the victim and mother of the informant (grand-mother of the victim) raised alarm that somebody entered into room for the purpose of commission of rape. On such alarm, number of people of nearby assembled and mother of the informant and victim came in courtyard locking the door by putting chain from outside of door.

It is also alleged that daughter of informant i.e. victim told that in the night they did not lock the door of the room and victim along with her grand-mother sleeping on a cot, in the meantime she woke up, as someone put pressure on her breast and she also found that her underpant was also opened and said person was rubbing her private part.

It is further alleged that after making arrangement of light, door was opened and it was found that Md. Ayub Ansari (appellant herein) was inside the room and he trespassed the room for the purpose of commission of rape on the person of daughter of the informant and is still in the room and several nearby persons were present there.

4. On the basis of aforesaid Fardbeyan Mandu Charhi P. S. Case No. 69 of 2003 dated 03.03.2003 for the offence punishable under Section 376 /511 IPC got registered and after due investigation, charge-sheet was submitted and cognizance was taken for the offence punishable under Sections 376 /511 IPC.

5. The case was further committed to Court of Sessions and amended charge has been framed under Sections 376 read with Section 511 , Section 354 , Section 457 of IPC and the same was read over and explained to accused in Hindi to which he pleaded not guilty and claim to be tried.

6. Record further reveals that, accused-appellant filed an application for discharge under Section 227 which was dismissed by the learned trial court, against the said dismissal, accused- appellant preferred a revision petition before the High Court and the same was rejected the Hon’ble High Court and it made an observation that prima facie Sections 354 /376 read with Section 511 and 457 of IPC are attracted in the present case as such charge was amended.

7. The trial court after analyzing the evidence available on record exonerated the accused for charges under Sections 376 /511 and 354 of IPC, however, found accused guilty under Section 457 of IPC.

8. Learned counsel for the appellant, at the outset, submitted that except the grand-mother of the victim, all other witnesses got hostile in the present case and learned trial court has not appreciated this fact and relying mainly on fardbeyan which is not a substantive piece of evidence held guilty accused under Sections 457 of IPC which is not permissible under the law.

9. Learned A.P.P. for the State submitted that of course number of