Criminal Appeal (SJ) No. 55 OF 1995 ******** Against the judgment and order of conviction dated 9.2.1995 passed in Sessions Trial No. 255 of 94 by the learned Sessions Judge, Darbhanga. ****** AIYUB KUJRA @ AJUBA S/O JALIL KUJRA R/O VILLAGE-KHEBA, TOLE AFZALA, P.S.- BIRAUL, DISTRICT- DARBHANGA ……..….. Appellant Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : Md. Abu Haider Adv. For the State : Choubey Jawahar APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellant has been convicted under Section 376, 511 I.P.C. and sentenced to rigorous imprisonment for 7 years by the judgment dated 9.2.1995 in Sessions Trial No. 255/1994 by the Sessions Judge, Darbhanga. 2. The case of the prosecution is that on 27.1.1993 when P.W.8 the prosecutrix had gone to tube well to have bath, the appellant appeared there and attempted to commit rape upon her but caught. He was got freed by two other accused persons who were put on trial but have been acquitted of the charges. 3. The prosecution in all examined 9 witnesses out of whom P.W.3 is the doctor who examined the prosecutrix whereas P.W.8 the prosecutrix herself, P.W.5 her mother-in-law has been tendered and P.W.1 is her husband whereas P.W.4 is sister-in-law and P.W.7 is the brother-in-law. Apart from prosecutrix P.W.6 is also an alleged eye- witness. The Investigating Officer has been examined as P.W.9 who fully corroborated the objective evidence on the place of occurrence. 4. The defence on its behalf examined 4 witnesses, D.W.1 is on the point of accused Lalua Kujra being a minor on the day of occurrence whereas D.W.2, 3 and 4 are on the point that no such occurrence had taken place on the day alleged.. 5. Since the prosecutrix has been well supported by the other independent witnesses including the Investigating Officer who found objective evidence in support of the prosecution case, the same cannot disbelieved in its entirety. However, even accepting her version as true, it is difficult to hold that the prosecution has satisfactorily proved its case that it was a case of attempt to rape. Since the allegations is merely that when she was preparing herself to have a bath and sitting down to urinate the appellant caught her and pinned her down and mounted her In the facts of the case at best it would be an offence under Section 354 I.P.C 6. In the result the appeal is dismissed but with modification in conviction to one under Section 354 I.P.C. and sentenced to the period already undergone. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 21st April, 2011 NAFR/ Fahad.