Insufficient evidence for conviction under IPC Section 376(1) necessitates conviction for attempted rape under Section 376/511 due to partial penetration.

CAV JUDGMENT

1. This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure , 1973 against judgment dated 06.04.2005 passed by learned Additional Sessions Judge, Dhamtari, Camp- Raipur (C.G.) in Sessions Trial No. 217/2004, whereby the appellant stands convicted and sentenced as under:-

2. The case of the prosecution, in brief, is that on 21.05.2004, the victim was alone in her house and at that time, the accused came there and asked her whether she would go to shop and when the victim asked him for money to go to the shop, the appellant caught hold her hand, forcibly dragged her to his house where he removed his own clothes as well as the victim clothes and committed sexual intercourse with her without her will and thereafter, he locked her inside the room of his house, tied her hands and legs and stuffed cloth into her mouth. The information regarding the incident was lodged at Police Station Arjuni, upon which an offence was registered and investigation was conducted. After completion of investigation, the charge-sheet was submitted before the Court of Chief Judicial Magistrate, Dhamtari. The case was committed to the Court of the Sessions Judge, Raipur for trial. Learned trial Court vide its judgment dated 06.04.2005, convicted and sentenced the appellant as mentioned in paragraph No. 1 of the judgment.

3. The prosecution, in order to bring home guilt of appellant, has examined 19 witnesses namely the victim (PW-1), Kalendri Bai (PW-2), Kartikram (PW-3), Pusauram (PW-4), Rameshwar Kurre (PW-5), Ramkrishna (PW-6), Fulsai Uraon (PW-7), Dhavalram (PW-8), Krishna Kumar (PW-9), Satyanarayan (PW-10), Smt. Aasha Tripathi (PW-11), Angeshwar Netam (PW-12), Tukaram Sahu (PW-13), Hridayram Devdas (PW-14), Bhagatram (PW-15), Sanjay Lanje (PW-16), Anil Yadu (PW-17), Dr. C.B.S. Banjare (PW-18) & U.R. Diwan (PW-19) and exhibited documents namely FIR (Ex. P/1), consent letter (Ex. P/2), property seizure memo (Ex. P/3), map (Ex. P/4), memorandum (Ex. P/5), property seizure memo (Ex. P/6), crime detail form (Ex. P/8), property seizure memo (Ex. P/9 to P/11), doctor’s report (Ex. P/12), property seizure memo (Ex. P/13 to P/14), dakhil kharij register (Ex. P/15C), memo of P.S. Arjuni (Ex. P/17 & P/18), memo of P.S. Arjuni (Ex. P/19), doctor’s report (Ex. P/20), memo of P.S. Arjuni (Ex. P/21 & P/22) & FSL report (Ex. P/23).

4. The victim (PW-1) was examined before the trial Court wherein she has narrated the incident that the appellant caught hold her hand and dragged her to his house, committed sexual intercourse with her and thereafter he left the victim by locking her inside the room. She has further stated that on the date of incident at about 7:00 p.m., when her mother returned to home, she took her out of the room and brought her to home. The victim was extensively cross-examined wherein she has stated that when the appellant has caught hold her hand and removed his pant then he has penetrated his private part in her vagina. She has further stated that the appellant had kept his private part above her vagina for about 10 minutes and she has affirmed that the appellant has kept his private part above her private part but he has not penetrated. She has also stated that she could not open her mouth as the appellant had tightened her both hands. She has admitted that she remained in the closed room for eight hours and when her mother entered into the room, she untied her hands and mouth.

5. Kalendri Bai (PW-2) who is mother of the victim has been examined before the trial Court wherein she has stated that