The court held that the appellant's actions, which fell short of commission of the alleged offence of rape, amounted to indecent assault under Section 354 IPC.

C. R. PAL, J.

( 1 ) THE appellant assails the order of conviction and sentence passed by the learned Additional Sessions Judge, Parlakhemundi in Sessions Case No. 30 of 1992 convicting and sentencing Sessions Case No. 114 of 1992 under Section 376, IPC read with Section 511, IPC to undergo rigorous imprisonment for seven years.

( 2 ) THE case against the appellant, in brief, is that on 29-3-1991 at about noon while the victim was returning to her house on the jungle road from the work site of her son at Atersingh road after providing him with his meal the appellant caught hold of her and made her naked and forcibly performed sexual intercourse with her. The victim came to her house, but being apprehensive of mal-treatment by her husband for her involvement in such an affair she went away to her mother's house. On 11-4-1991 she was brought back by her husband when the victim narrated about the occurrence. Therefore, she lodged a written information at the Police Station.

( 3 ) THE case of the appellant is a denial of the allegations levelled against him.

( 4 ) IN order to establish its case the prosecution examined as many as five witnesses out of whom P. W. 1 is the victim and P. W. 2 is her husband. P. W. 3 is one of the village gentry and P. W. 4 is a witness to the seizure of the Saree belonging to the victim lady and the P. W. 5 is the Investigating Officer. The trial Court relying mainly on the evidence of the prosecutrix has convicted and sentenced the appellant as aforesaid.

( 5 ) THE learned counsel appearing for the appellant contended that the delay in lodging the F. I. R. and the substantial variation in the F. I. R. case and the case deposed to in the Court by the prosecutrix make prosecution case doubtful. The learned Addl. Standing Counsel, on the other hand submitted that the delay caused in lodging the F. I. R. having been explained the same may not affect the prosecution case adversely. It is also submitted that the evidence on record clearly establish the commission of the offence by the appellant and as such, the conviction is well founded. In this context, it is noticed that the prosecutrix lodged the written report, Ext. 2, on 10-4-91 at 10. 00 A. M. After receiving the Ext. 2 the I. O. also recorded her statement and prepared Ext. 3 on the oral version of the prosecutrix. It appears from the judgment of the trial court that the court below has treated Exts. 2 and 3 as F. I. Rs. From the evidence of the I. O. it appears that though he has treated Ext. 2 as the F. I. R. still he recorded the oral version of P. W. 1 and treated the same (Ext. 3) as a part of the F. I. R. In this context, the I. O. (P. W. 5) has deposed :" At 10. 00 A. M. on that day, I received a written report of the complainant Hnama Singh. I treated that report as F. I. R. Ext. 2 is the F. I. R. and Ext. 2/1 is my endorsement. The informant gave thumb impression in my presence. Besides written report I have reduced the oral report of the complainant into writing. Ext 3 is that report. . . . . "the above testimony of the I. O. shows that the Ext. 3 is a statement given to the I. O. in course of investigation and as such, the same cannot be treated as F. I. R. and cannot be used for any purpose other than the purpose mentioned under Section 162, Cr. P. C. From Ext. 2, it appears that the incident occurred on 29-3-91. The F. I. R. was lodged on 10-4-91 at 10. 00 A. M. The prosecutrix has deposed that after the alleged incident she left her house for her mother's house. She has also deposed that being ashamed she could not tell about the incident to the villagers. She has deposed that after her husband's return to the village he came and took her back to his house when she narrated about the incident to him. Her husband who has been examined as P. W. 2 has deposed that after he brought his wife to his village the prosecutrix narrated about the incident to him. From his evidence it appears that he got a report written by one Anutap Pani an