Hon’ble Prafulla C. Pant, J.

This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 28.01.2000, passed by II Additional Sessions Judge, Dehradun, in Sessions Trial No. 17 of 1999, whereby said court has convicted accused/appellant Setu Thapa under section 376 read with section 511 IPC (i.e., attempt to commit rape), and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 5,000/- .

2. Heard learned Amicus Curiae for the appellant, learned counsel for the State, and also perused the lower court record.

3. Prosecution story in brief is that Smt. Surema Rana (P.W.1) is a widow who lives in Shiv Nagar, Ajabpur Kala, within the limits of Police Station Dalanwala, Dehradun, alongwith her minor daughter Suman Rana (P.W.2). On 23.12.1998, at about 4:00 p.m, accused/appellant Setu Thapa said to have enticed away Suman Rana (P.W.2), aged eight years towards jungle near her house, and attempted to commit rape on her. The girl told about the incident to her mother. Next day, P.W.1 Surema Rana went to the house of accused/appellant Setu Thapa and complained about his conduct to his parents. On 25.12.1998, family members of the accused/appellant Setu Thapa came to the house of Surema Rana and requested her not to complain about the matter to the police and requested for compromise. However, Surema Rana did not agree for compromise, and gave first information report (Ex. A1) on 25.12.1998, to Senior Superintendent of Police, Dehradun. On the basis of said report crime no. 460 of 1998, was registered at Police Station Dalanwala. Investigation was taken up by Sub Inspector G.S. Manola, who interrogated the witnesses, inspected the spot and submitted charge sheet against accused Setu Thapa for his trial in respect of charge of offence punishable under section 376 read with section 511 IPC.

4. The Additional Chief Judicial Magistrate I, Dehradun, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. Learned II Additional Chief Judicial Magistrate, Dehradun, on 23.03.1999, after hearing the parties, framed charge of offence punishable under section 376 read with section 511 IPC, against accused Setu Thapa who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Surema Rana (informant), P.W.2 Suman Rana (victim), P.W.3 Sewa Singh Thapa and P.W. 4 Constable Mahendra Singh. The oral and documentary evidence was put to the accused under section 313 Cr.P.C, in reply to which the accused pleaded that he has been falsely implicated.

However, no evidence in defence was adduced. After hearing the parties, the trial court found accused Setu Thapa guilty of charge of offence punishable under section 376 read with section 511 IPC, i.e., attempt to commit rape. Thereafter, the parties was heard on sentence, and the convict was sentenced to rigorous imprisonment for a period of five years, and directed to pay fine of Rs.5,000/-. Aggrieved by said judgment and order dated 28.01.2000, passed by learned II Additional Sessions Judge, Dehradun, in Sessions Trial No. 17 of 1999, this appeal was filed before Allahabad High Court by the convict. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal.

5. P.W.2 Suman Rana, a child witness aged nine years told that on the day of incident she was called by accused Setu Thapa from her house and he took her to nearby jungle. The witness has further narrated that the accused took out her under garments, and thereafter put out his underwear. The girl was made to lie down on the ground. It is further stated by P.W.2 Suman Rana as soon as accused attempted to commit rape, she got up whereafter accused asked her not to tell about the incident to anyone.

6. P.W.1 Surema