Criminal Appeal (SJ) No.116 of 1999 Against the judgment and order of conviction dated 21. 04. 1999 and order of sentence dated 22. 04. 1999, passed by Roshan Lall Sharma, 5th Additional Sessions Judge, Nalanda at Biharsharif, in Sessions Trial No. 382 of 1993. Kishore Yadav @ Raj Kishore Yadav @ Wakil Sah, son of Dev Saran Yadav, resident of Harnaut, P.S. Harnaut, District-Nalanda. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. Ajay Kumar Thakur, Advocate. Mr. Dhananjay Kumar, Advocate. Mr. Ravi Ranjan, Advocate. Mr. Nilesh Kumar, Advocate. For the Respondent. : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 376/511 of Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years with fine of Rs. 1000/- and in default of payment of fine to undergo simple imprisonment for four months. 3. The prosecution case as alleged on 06. 08. 1992 at 11.30 A.M. while Guriya Kumari was alone in her house and her parents and other family members have gone out of the house, the appellant entered the 2 house lifted her took inside the room molested her and while tried to untie her Salwar on hulla of the victim witnesses arrived and accused flee away. 4. F.I.R. was lodged on the statement of the Prosecutrix. However, after investigation, charge sheet submitted for offence under Section 376/511 I.P.C. Charge was framed before Court of Sessions for offence under Sections 376/511 I.P.C. 5. During trial, five witnesses were examined. The trial court convicted the appellant in view of evidence of P.W. 3 the victim who supported the prosecution case in the Fardbeyan that appellant came into her house took her in the room and molested her and tried to untie her salwar in the meantime her father reached there then appellant flee away. The father (P.W.2) of the victim (P.W.3) supported the prosecution case that he saw the appellant was to commit rape on P.W.3 who made cry and the appellant flee away seeing him and the victim narrated about occurrence. 6. Learned counsel for the appellant however contends that whatever allegation made even accepted on its face value, it does not make out a case for offence 3 under Section 376 I.P.C., but only it is a case of molestation. It has further been contended that defence of the appellant of false implication and assertion that no occurrence as alleged has occurred and the appellant has falsely been implicated. Further defence of the accused as per explanation under Section 313 Cr.P.C. that the prosecution party has took the watch of the appellant which was left near the hand pipe for which there was some altercation and so he has falsely been implicated. 7. However, taking into consideration the fact that witnesses supported the prosecution case that the appellant came in house and molested and attempted to commit rape and in the meantime the father reached on which the appellant flee away and the evidence of P.W. 2, 3 and 4 will supported the evidence to establish the prosecution case. However the defence set up is by way of suggestion and the explanation under Section 313 Cr.P.C. that the appellant has falsely been implicated for some altercation with regard to a watch left by appellant at hand pipe. However, no evidence adduced with regard to defence set up by the appellant. 8. However taking into consideration the 4 defence set up is devoid of any merit. It is matter of common experience that the chastity is the dearest in traditional society. No girl or the parent of minor unmarried girl will falsely implicate imparting chastity of the minor girl for minor altercation for watch at hand pipe as chastity is the dearest having far reaching consequence. 9. It has been well settled in decision reported in A.I.R. 1983 SC 713 that it is matter of common experience that in traditional society the girl would extremely reluctant even to admit any incidence which reflect her chastity and the parent would avoid publicity out of fear of stigma attached to victim and the family in getting suitable alliance and in such circumstance if the crime is brought to book there is in built assurance that charge is genuine rather than fabricated. 10. However, having regard to the allegation that accused came and lifted the victim and took her in a room and tried to untie her salwar. Hence whatever alleged even accepted on the face vaue it makes out a case for offence under Section 354 I.P.C. and it cannot said to be attempt of rape as the allegation is made at the 5 stage of attempt to rape. 11. Having regard to the facts and circumstance of the case that accused came and molested the victim can well be inferred to the case for offence under Section 354 I.P.C. Hence order of conviction for offence under Section 376/511 I.P.C. is hereby set aside and substituted by Section 354 I.P.C. 12. However, having regard to the fact that occurrence is of the year 1992 and the appellant has suffer a lot and remained in jail after conviction for altogether two and half months and hence no useful purpose has been served to send the appellant in jail. Hence end of justice shall meet by sentencing the appellant for the period already undergone and hence this appeal is allowed in part. Patna High Court The 19th October, 2011. NAFR/m.p. ( Gopal Prasad, J.)