CRIMINAL APPEAL No.265 OF 2007(SJ) *** Against the judgment dated 9.2.2007 and order of conviction dated 12.2.2007 passed by the Additional Sessions Judge, FTC-II, Madhubani, in connection with S.T. No.213 of 2006. *** MD.FAKIRA son of Md. Qasim, resident of village- Bhelwa Tola Jaynagar, P.S. Jaynagar, District- Madhubani. …Appellant Versus STATE OF BIHAR …Respondents *** For the appellant : Mr. F. A. Khan and Md. Sufiyan, Advocates. For the State : Mr. S. N. Prasad, A. P. P. *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The sole appellant has been convicted for the offence under sections 376 and 511 of the Indian Penal Code and sentenced to seven years rigorous imprisonment and a fine of rupees five thousand and in default of which further period of six months simple imprisonment by a judgment dated 12.2.2007 passed by the Sri Arvind Kumar, Additional Sessions Judge-cum- Fast Track Court No.II, Madhubani, in Sessions Trial No.213 of 2006. 2. The prosecution case is that on 20.12.2004 at about 5-6 PM the appellant attempted to physically molest the prosecutrix upon which the present case was instituted. 3. The prosecution in order to prove its case examined twelve witnesses in all, whereas, defence examined one witnesses as DW1. 4. PW 1 Md. Latif, PW 2 Md. Mobarak, PW 3 Samina Khatoon, PW 5 Md. Ali Hasan, PW 6 Md. Salim and PW 7 Md. Imam Hasan have been declared hostile since they did not support the case of the prosecution. Md. Mahsud Alam, PW 4 has stated that he was not - 2 - examined by the police. PW 8 Saiful and PW 9 Roshan have stated that they went to the place of occurrence and saw the appellant fleeing away from there but PW 8 stated that no one narrated or recounted about the occurrence to him. Further, they have not stated that they saw the appellant fleeing away from the place of occurrence before the Investigating Officer in the statement under section 161 Cr.P.C. PW 10 Nazma Khatoon is the mother of the informant, who supported the case of the prosecution as hear say witness, whereas, PW 11 Sabbo Khatoon, the informant herself reiterated the earlier stand taken by her. However, she exaggerated the story to the extent bordering absurd. PW 12 is the Investigating Officer. So, the sum total of the prosecution is dependent on the evidence of PW 10 and PW 11, the informant herself. So far PW 10 is concerned, she stated that on halla she went to the place of occurrence and saw the appellant fleeing away and PW 11 lying on the ground with a Dupatta stuffed in her mouth. PW 11 Sabbo Khatoon stated that when she went to urinate in the garden, the appellant Md. Fakira suddenly came behind her and attempted to molest her and exaggerated the story so as to bring the case within the purview of sections 376 and 511 of the Indian Penal Code even though on facts at best it would be a case under section 354 of the Indian Penal Code. She conceded that she filed a complaint later but explained that it is only on the failure of the police to institute the first information report that she filed the complaint (Ext.1) 5. On going through the evidence of PW 11, who was about 18 years of age and therefore, fully grown, who should have known that the appellant by his act had only committed outraging of her modesty at best and in fact, there was no element of attempt to commit rape. 6. Considering the evidence of PW 11 and no reason to discard the same, this court finds that no offence under sections 376 and 511 of the Indian Penal Code is made out but definitely the appellant’s act - 3 - would come within the description of section 354 of the Indian Penal Code. 7. Under the circumstances, the appeal is dismissed altering the conviction to one under section 354 of the Indian Penal Code and sentence to the period already undergone but no sentence as to fine. 8. In the result, the appeal is dismissed with modification as aforesaid. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 23rd November, 2009 NAFR/ JA/-