Criminal Appeal (SJ) No. 143 of 2007 -------- Against the judgment and order of conviction and sentence dated 9.11.2006 and 10.11.2006 passed by Shri Nand Kishore Gupta, Additional Sessions Judge, Fast Track Court I, Saran at Chapra in S.T. No. 58 of 2003 ---------- Raju Manjhi, son of Man Chand Manjhi, resident of village – Karnpura, Police station – Marrouhra, District – Chapra ………….. Appellant Versus The State of Bihar …………. Respondent ------------ For the Appellant : Shri S.N. Prasad, Advocate (Amicus Curiae) For the State : Shri Ajay Mishra, APP --------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The present appeal is directed against judgment of conviction dated 9th November, 2006 passed by Fast Track Court I, Saran in Sessions Trial No. 58 of 2003 by which the appellant was held guilty of committing offence under sections 376/511 IPC and was directed to suffer RI for four years as also to pay a fine of rupees five hundred. In case the appellant had not paid the fine, he had to undergo RI for a further period of two months. 2. The prosecution case is that P.W. 6 Meena Kumari, the daughter of the informant (P.W. 5) had gone out into the maize field of one Raj Narayan Singh to attend to the call of nature where the appellant is alleged to have gagged her so as to undressing her for committing rape upon her. It is stated that P.W. 5 raised a halla and came to her house to inform her parents. The villagers also heard about the occurrence. 3. After investigation of the case, the appellant was sent up for trial during which course, seven witnesses were examined. The evidence of P.W. 6, the 2 victim of the offence, is that she had gone to the field of Raj Narayan Singh for attending to the call of nature early at 6 A.M. when this appellant attempted to undress her for committing rape upon her, but she raised a cry and as a result of which the appellant attempted to gag her mouth and in that attempt her nose pin injured her nose and it started bleeding. When the appellant saw her bleeding, he fled away from there. She came and stated about the incident to her family members and her mother lodged the report. It is stated by P.W. 6 that hearing her halla, Renu Kunwar (P.W. 4) and Raj Narayan Singh came but by that time the appellant had run away. Thus, P.W. 4 may not be an eye witness to the occurrence. P.W. 5, the informant of the case who is also the mother of the victim, has stated that P.W. 6 came and stated to her that this appellant attempted to undress her so as to commit rape and she was injured by the nose pin and started bleeding. P.W. 5 also does not appear to be an eye witness and on hearing details of the occurrence from her daughter, she filed the case. So is the statement of other witnesses, like, P.W. 1 Sita Ram Prasad, who is the grand father of the victim and father of the victim, namely, P.W. 2. P.W. 3 has also stated the same thing as do P.Ws 1 and 2. P.W. 4 was a witness, who was working in the neighbouring field and she also appears as a hear say witness. 4. The contention on behalf of the appellant is that even accepting the evidence to be true which has come on record of the case from the prosecution witnesses, no offence under section 376/511 IPC was made out. It was further submitted that it might be in the realm of preparation of committing an offence, but, could not be said to be an attempt as there is no further act complained of than an attempt of undressing the victim. 5. The evidence of P.W. 6, the victim, indicates that the appellant came and attempted to undress her. It has not been stated that she was fully undressed or she was laid on the ground for committing the act of rape. In fact, in course of examination, P.W. 6 has stated that one day prior to the occurrence the appellant had apprehended the she-goat of the victim and had kept it tied at his 3 house and when the victim had objected to it, he had assaulted her. Thus, what appears is that there might be some element of annoyance and ill will towards the family members of the victim that they were coming forward to support the charges. The police officer has not been examined and it is stated that there is nothing on record to show that any occurrence indeed had taken in the maize field as the incident which has been described, must have left some marks at the place of occurrence. Thus, on due consideration of the evidence of prosecution witnesses, what appears to this Court is that the prosecution did not succeed in bringing the charge home. In fact, the evidence on record did not constitute the offence for which the appellant has been convicted. 6. In the result, the appeal succeeds. The appellant is acquitted of the charges for which he has been convicted. The appellant is in custody. He shall be released forthwith if not wanted in any other case. 7. Shri S.N. Prasad, learned amicus curiae has assisted this court and, as such, he deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee, for which purpose, let a copy of the first and the last pages of the judgment be made over to him. (Dharnidhar Jha, J.) Patna High Court, The 23rd September, 2011, NAFR/Anil/