The court upheld the conviction under Section 376 read with Section 511 of IPC based on the intention and act of the accused in attempting to commit the offence of rape.

Jitendra Chauhan, J.

1. The present criminal appeal has been filed against the judgment of conviction and order of sentence dated 5.5.2001 (hereinafter referred to as the `impugned judgment) whereby the learned Additional Sessions Judge (I), Kaithal (hereinafter referred to as the `trial Court), has convicted the appellant for the commission of offence punishable under Section 376 read with Section 511 of IPC and awarded him sentence to undergo rigorous imprisonment for a period of three years.

2. Brief facts of the present case as set up by the prosecution, are that on 15.11.1999 at about 4.00 p.m., the prosecutrix along with her daughter, Geeta Devi, was going towards the fields of Joga Singh for fetching fodder. When they reached near the field of Dharma son of Faquiria, the accused-appellant, namely, Dharma son of Lal Chand, suddenly came out of the sugarcane field and dragged the prosecutrix in the field after gagging her mouth with his hands. Thereafter, he broke open the string of her salwar and forcibly tried to commit rape upon the prosecutrix. However, the prosecutrix resisted. On seeing this, her daughter, Geeta Devi, raised alarm and ran towards the nearby Dera. However, one Rajbir, son of the brother-in-law (jeth) of the prosecutrix, met Geeta Devi on the way and both of them entered the sugarcane field. On seeing them, accused-Dharma, who was lying over the prosecutrix, ran away from the spot. In the meantime, Sukhbir, another son of the jeth of the prosecutrix. Both Rajbir and Sukhbir chased the accused and apprehended him after covering a distance of 6-7 killas. They brought the accused to the Dera of Joga Singh, where many other villagers had also collected. However, the accused managed to slip from the Dera. After some time, the father of the accused along with other co-villagers, reached the Dera and attempts were made to compromise the matter. However, the Panchayat failed to get the matter compromised and the prosecutrix along with her husband, approached the Police and got recorded the complaint, Ex. PE, on 16.11.1999, on the basis of which, formal FIR, Ex.PE/1, was recorded.

3. On completion of investigation, challan was presented against the accused. Learned CJM, Kaithal, on finding a prima facie case against the accused, committed the same to the Court of Sessions whereupon, the accused was charge-sheeted for the commission of offence punishable under Section 376/511 IPC, to which the accused pleaded not guilty and claimed trial.

4. In order to substantiate its case against the accused, the prosecution examined as many as nine following witnesses :-

PW1-Dr. S.S. Dahiya, medically examined the prosecutrix on 16.11.1999 and proved a copy of the medico-legal report as Ex.PD. He also medically examined the accused-Dharma on 19.11.1999 and proved a copy of the medico-legal report as Ex.PA. He also deposed that the injuries No. 1 and 2 suffered by the prosecutrix and the injuries suffered by the accused could not be self inflicted.

PW2-HC Vijender Singh, recorded the formal FIR Ex.PE/1, on receipt of memo Ex. PE from SI Rameshwar Dass.

PW3-Constable Kamal Rattan is a formal witness.

PW4-Hemant Kumar, Patwari, Halqa Pharal, prepared the scaled site plan, Ex. PH, of the place of occurrence.

PW5-the prosecutrix reiterated the entire prosecution version.

PW6-Geeta Devi, daughter of the prosecutrix; and PW7- Rajbir, son of the jeth of the prosecutrix, also supported the case of the prosecution.

PW8-ASI Jogi Ram, arrested the accused on 19.11.1999 and got him medically examined from the Government Hospital.

PW9-SI Rameshwar Dass, deposed about the steps taken by him during the investigation of the case.

5. Statement of the accused under Section 313 Cr.P.C. was recorded while putting him all the incriminating circumstances and material appearing against him in the prosecution case. He denied the allegations and pleaded innocence. In his defence, the accused examined Raja son of Kadmu as DW-1.

6. After heari