The court maintained that actions by the accused demonstrated intent to commit rape, establishing a clear distinction between mere indecent assault and attempted rape.

1. This appeal is directed against the judgment of conviction and order of sentence dated 31-12-2008 passed by the Sessions Judge, Raipur in Sessions Trial No. 70/2008, whereby learned Sessions Judge after holding the accused / appellant guilty for commission of offence under S.376 read with S.511 of the IPC , sentenced him to undergo RI for five years and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for three months.

2. Judgment of conviction is challenged on the ground that without any evidence relating to attempt to commit rape against the appellant the Court below has convicted and sentenced the appellant and thereby committed illegality.

3. Case of the prosecution, in brief, is that on 30-9-2007 at about 9 a.m. the prosecutrix, aged about 8 years, was playing near the house which was under construction, the accused went near the prosecutrix, took her inside a vacant room, undressed himself and the prosecutrix, lay her down on the land and was attempting to commit rape on her. While the accused was taking the prosecutrix towards the room, Takeshwar (PW 4) objected him and immediately ran away and informed to the brother of the prosecutrix namely, Asha Ram (PW 3). Asha Ram (PW 3), Takeshwar (PW 4) and Mantram reached towards the place of incident and saw that the accused was attempting to commit rape on the prosecutrix. They caught hold of the accused. Asha Ram (PW 3) immediately lodged the report, same was written in Dehati Nalishi Ex. P2 and on the basis of Dehati Lalishi, FIR Ex. P5 was registered. The prosecutrix was sent for medical examination vide Ex. P6 and she was examined by the doctor. No injury was found on the prosecutrix. Her secondary sexual characters were not developed, hymen was intact, no internal injury was found over her private part and vagina does not admit even one finger. Two slides were prepared from the vagina of the prosecutrix and handed over to the police. The accused was taken into custody vide Ex. P11. He was sent for medical examination. He was examined by Dr. V. Dutta (PW 1) vide Ex. P1 who opined that the accused is capable for committing sexual intercourse. Spot map was prepared vide Ex. P3. Caste certificates Exs. P9 and P - 10 were seized vide Ex. P8.

4. After completion of investigation, charge sheet was filed before the Special Judge, Raipur who sent the case to the Court of Session.

5. In order to prove the guilt of the accused / appellant, the prosecution has examined as many as six witnesses. Statement of the accused was recorded under S.313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication. The accused has examined Dr. M. K. Sahu (DW 1) and Pawan Chanchlani (DW 2) - brother of the accused, in his defence, who have deposed that the accused is suffering from psychotic disorder as a result of consumption of liquor, he was admitted in Mekahara and was discharged vide Ex. D1.

6. I have heard learned counsel for the parties and perused the judgment impugned as also the record of the Court below.

7. Mr. B. P. Sharma, learned counsel for the appellant, submits that appellant Rajesh Chanchlani is a patient of psychotic disorder and he was under treatment in the Medical College and Hospital under Dr. M. K. Sahu from 30-1-2008 to 2-2-2008. He is suffering from alcohol dependence having history of alcohol induced psychotic disorder. Learned counsel further submits that the evidence adduced on behalf of the prosecution is not sufficient for drawing any inference that the accused has attempted to