The main legal point established in the judgment is the distinction between evidence of rape and attempting rape, leading to the affirmation of the conviction under IPC 457 and sentencing for attempting rape.

Heard Mr. N. Majumder, learned legal aid counsel appearing for the appellant as well as Mr. A. Ghosh, learned public prosecutor appearing for the state.

2. This is an appeal by the convict against the judgment of conviction dated 16.12.2011, delivered in S.T.14(NT/KMP)/2011, by the Addl. Sessions Judge, North Tripura, Kamalpur (now Unakoti Judicial District, Kamalpur), convicting him under Sections 457/376(1) of the IPC. As consequence of that conviction, by the order dated 17.12.2011, the appellant has been sentenced to suffer three years rigorous imprisonment alongwith fine of Rs. 1,000 with default sentence under Section 457 of the IPC and further the appellant has been sentenced to suffer rigorous imprisonment for seven years alongwith fine of Rs. 2,000 with default sentence under Section 376(1) of the IPC.

3. The genesis of the prosecution is rooted in the written ejahar filed by one Nirmal Deb (PW.1), husband of the prosecutrix, to the Officer In-charge, Ambassa police station, disclosing that on 12.01.2010 at about 9.00 pm, the appellant stealthily entered in their kitchen and forcibly raped her wife. On hearing her screams, people from the neighbourhood rushed to the place of occurrence. He has stated in the ejahar that, he himself saw the incident.

4. Based on the said written ejahar filed on 12.01.2010, Ambassa P.S. Case No.2/1010 under Sections 457/376 of the IPC was registered and taken up for investigation. Having completed the investigation, the final police report, chargesheeting the appellant, was filed by Smt. Shiuli Deb, Sub-Inspector of Police (PW.10), as from the police papers it appeared prima facie that the offence was committed by the appellant. Since the offence of rape is exclusively triable by the court of Sessions, the police papers were committed to the court of the Addl. Sessions Judge, North Tripura, Kamalpur.

5. On taking cognizance of the offence punishable under Sections 457/376(1) of the IPC, the Addl. Sessions Judge, North Tripura, Kamalpur, framed the charge against the appellant for committing those offences. The appellant however, pleaded total innocence and claimed to face the trial.

6. In order to substantiate the charge, the prosecution adduced as many as eleven witnesses including the victim (PW.5), the informant (PW.1), the medical officer who conducted the medical examination of both the appellant and the victim (PW.11) and the witnesses from the neighbourhood. It is to be noted that the victim was examined under Section 164(5) of the Cr.P.C. after ten days of the occurrence, on 22.01.2010. But, the prosecution has failed to introduce that statement as recorded under Section 164(5) of the Cr.P.C. in the evidence though the victim was examined in the trial. As a result, that report will be of no avail.

7. After recording the prosecution evidence, the appellant was examined under Section 313 of the Cr.P.C. for having his response to the incriminating materials those surfaced in the evidence. But the appellant reiterated that he has been falsely implicated in the case.

8. Mr. N. Majumder, learned counsel appearing for the appellant, has categorically stated that there is no legal evidence of rape as defined under Section 375 of the IPC. Moreover, he has submitted that if the transaction as surfaced from the prosecution evidence is keenly scrutinised, it would be apparent that both the victim and her husband have made mutually destructive statements or they stated in the trial, contrary to what they had stated to the police officer during the investigation. Mr. Majumder, learned counsel, has submitted that there was a dispute on account of realising a petty amount, for which the appellant had been insisting the informant (PW.1) and for harassing him, he had been implicated in that false case. He has continued to submit that the victim is a collaborator in his design and it may so happen that when the appellant visited the house of PW.1, his wife raised alarm for no cause and the persons