The court found that lack of corroborative evidence for conviction under Sections 376 and 511 IPC necessitated a modification to Section 354 IPC, reflecting insufficient evidence for an attempted rape charge.

ORAL JUDGMENT

Date: 20-11-2017

This appeal arises out of the judgment of conviction dated 26.6.2015 and order of sentence dated 1.7.2015 passed by learned Sessions Judge, Begusarai in Sessions Case No. 49 of 2006 whereby appellant has been convicted under Sections 376 and 511 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and imposed a fine of Rs.10,000/- and in case of default in payment of fine, to undergo simple imprisonment for six months.

2. Prosecution case, in short, is that the victim informant Sanju Kumari (P.W.4) has lodged fardbeyan stating, inter alia, therein that while she was going to school on 28.8.2014 at about 8 A.M. and when she reached southern side of bamboo clumps of Fathi Mian, a boy caught her and forcibly brought her in the Maize field of Shiv Sah and after removing her undergarments, attempted to commit rape upon her and also molested her. On alarm raised by her, villagers, namely, Rajendra Poddar, Sudhir Singh and school teacher Ashok Singh came there and appellant fled away from the place of occurrence.

3. On the basis of aforesaid fardbeyan Bhagwanpur P.S.Case No. 99 of 2004 was registered under Sections 376 and 511 IPC against the appellant and after investigation charge sheet has been submitted against the appellant, on which cognizance of the offences has been taken and the case was committed to the court of sessions, which was kept by the learned Sessions Judge to his own file for trial and disposal.

4. On behalf of prosecution altogether 12 witnesses have been examined, they are : P.W.1 Ram Pravesh Poddar (brother of victim), P.W.2 Urmila Kumari @ Urmila Devi (mother of victim), P.W.3 Bhagwan Poddar (father of victim), P.W.4 Sanju Kumari (victim and informant), P.W.5 Rajendra Poddar (hostile), P.W.6 Vijay Sah (hostile), P.W.7 Ashok Kumar (teacher of school), P.W.8 Sudhir Singh (hostile), P.W.9 Dr.Gopal Mishra (Medical Officer, Sadar Hospital, Begusarai), P.W.10 Dr.Ram Pravesh Rai (Surgeon, Sadar Hospital, Begusarai), P.W.11 Dr. N.K.Choudhary (Medical Officer, P.H.C. Saraiya Garha, Supaul) and P.W.12 Dr.Shashi Prabha (In-charge Medical Officer, Birpur Primary Health Centre, Begusarai).

5. Apart from the said oral evidence the prosecution had brought the following documents : Ext.1 Signature of victim Sanju Devi on fardbeyan and Exts. 2 to 2/4 Medical Board Reports.

6. Defence has not adduced any evidence either oral or documentary in support of its case but plea of defence is simply denial of the occurrence and of false implication.

7. After trial learned trial court has convicted the appellant under Sections 376 and 511 IPC and sentenced him as stated above.

8. Against the aforesaid judgment and order the appellant has preferred this appeal on the ground that the victim (P.W.4) claims that Rajendra Poddar (P.W.5) and Sudhir Singh (P.W.8) had disclosed the name of appellant, whereas Rajendra Poddar and Sudhir Singh had not supported the prosecution case, being identified by them and so far P.W.7, Ashok Singh, is concerned, his evidence shows that he had not seen the occurrence and he saw the victim crying. It has also been submitted that the evidence of P.W.7 discloses that other teachers and 400 to 500 students were present but it looks absurd that they have not heard the hulla and only P.W.7 rushed to the placed of occurrence. Further submission of learned counsel for the appellant is that identification of the appellant in court is not admissible as her fardbeyan shows that name of appellant has been disclosed by Rajendra Poddar, Sudhir Singh and Ashok Singh to the informant and she was not knowing the name of the appellant but in the court she claimed that she was knowing the appellant from be