A conviction for an attempt to commit rape under Section 376/511 IPC requires cogent evidence of attempted penetration or clear overt acts. Without such evidence, merely acting to outrage modesty falls under Section 354 IPC, rendering a conviction for attempt to rape unsustainable.

Heard Mr. Ajay Mukherjee along with Mr. Ganesh Sharma, learned counsel appearing on behalf of the appellant and Mr. Abhay Kumar, learned APP for the State.

2. The present appeal has been filed under Section 374 (2) and 389(1) of Code of Criminal Procedure, challenging the judgment of conviction and order of sentence dated 31.10.2013 and 01.11.2013 passed by the learned Adhoc. Addl. Sessions Judge-I, Banka in S. T. No. 450/2009 arising out of Amarpur P.S. Case No.14/2008,, whereby and whereunder the appellant has been convicted for the offence punishable under Section 376/511 and 342 of the Indian Penal Code and has been sentenced to undergo Rigorous Imprisonment for a period of three years under Section 376/511 of IPC along with a fine of Rs.5,000/- and in default of payment of fine, to undergo further simple Imprisonment for one month. The appellant was further sentenced to undergo Imprisonment for a period of six months under Section 342 of the Indian Penal Code. Both the sentences were directed to run concurrently.

BRIEF FACTS OF THE CASE

3. The prosecution case, in brief, is that the informant has alleged that on 19.01.2008 at about 4:30 p.m., she accompanied her father to Amarpur for photography. The accused/appellant, who was the owner of Chhaya Studio, took the informant inside the studio and clicked her photograph. Thereafter, he asked her father to view his daughter's photograph on the computer and closed the door of the studio from inside. It is alleged that the accused then started touching the informant's body and attempted to remove/open her salwar with the intention to commit rape. On the informant raising an alarm, her father came to the door and attempted to open it. Thereupon, the accused opened the door and fled from the studio. Many people gather there after hearing the Hulla.

4. On the basis of the statement of the informant, the F.I.R being Amarpur P.S. Case No.14 of 2008 dated 20.01.2008 was registered for the offences under sections 342, 376/511 of the Indian Penal Code. After institution of the FIR, the police proceeded with the investigation and after completion of investigation, charge-sheet was submitted. Thereafter, the trial court took cognizance against the appellants and the case was committed to the Court of Sessions for trial, whereby he was convicted against which the present appeal has been filed.

ARGUMENT ON BEHALF OF THE APPELLANT

5. Learned Counsel appearing on behalf of the appellant submitted that the impugned judgment of conviction dated 31.10.2013 and order of sentence dated 01.11.2013 passed by the learned Adhoc Additional Sessions Judge- I, Banka in S.T. No. 450/2009 is illegal, perverse and unsustainable in law. Learned counsel further contended that the alleged occurrence took place on 19.01.2008 whereas the FIR was lodged on 20.01.2008 and the prosecution failed to offer any satisfactory explanation for such delay.

ARGUMENT ON BEHALF OF THE STATE

6. Learned APP appearing for the State while opposing the appeal submitted that the trial court after considering all the evidences on record and exhibits held that the offences alleged against the appellant appears to be serious in nature.

7. Heard the parties.

8. I have perused the lower court records and proceedings and also taken note of the arguments canvassed by learned counsel appearing on behalf of the parties.

9. The learned trial court, on the basis of materials as collected during the course of investigati