Criminal Appeal (SJ) No.222 of 1998 **** Against the judgment, dated 20.04.1998, passed by Sri Rana Abhai Singh, Additional Sessions Judge, I, Gaya, in S. Tr. No. 86 of 1996/224 of 1996 **** Prem Kumar, son of Gopal Prasad Gupta, resident of village and P.S. Khizersarai, district Gaya .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. M/S Praveen Kumar Agrawal & Radhe Shyam Prasad, Advs. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 376/511 of the Penal Code and sentenced to undergo rigorous imprisonment for four years and, further, convicted under Section 324 of the Penal Code and sentenced to undergo rigorous imprisonment for one year, however, both the sentences have been ordered to run concurrently. 3. The prosecution case, as alleged in the fardbeyan that 2 while the informant, P.W. 5, along with his wife Suraj Mani Devi, P.W. 4, was cleaning his house on the eve of deepawali her four years old daughter, Shobha Kumari, the victim was playing on the road. In the meantime, the accused, Prem Kumar, the neighbour, came and took the victim, Shobha Kumari, in his lap and went behind the Panchayat Bhawan and kissed her with intention causing injury by the teeth on her cheek and proceeded to act with her with bad intention which led the victim to cry and then witness when rushed to the place of occurrence and saw the illegal act by the appellant. However, the father and mother of the victim supported the prosecution case whereas the other P.Ws. 1, 2 and 3 turned hostile and had considering the oral and documentary evidence as well as the evidence of the doctor and investigating officer the order of conviction recorded. 4. The learned counsel for the appellant, however, contends that there is no legal evidence regarding any attempt to rape and the party of the evidence on which the finding of Section 376 of the Penal Code has been recorded suffers from contradiction and with regard to those part of the argument attention has been drawn and contradiction recorded by the investigating officer and, hence, it is not safe to rely on those part of the evidence and, hence, it is a case utmost under Section 354 of the Penal Code and the appellant has already been remained in jail from 28.11.1995 to 30.06.1998 and has suffered a lot as the occurrence is of the year 1995 and he suffered the rigour of prosecution and, hence, a lenient view be taken. 5. However, the prosecution case in the fardbeyan by the 3 informant, P.W. 5, that while informant was cleaning the house with his wife then the accused person came, took her daughter in lap and went behind the Pandhcyat Bhawan and did the illegal act on which his daughter started crying then the neighbour, Shiv Shanker Prasad, P.W. 1, and Ramesh Prasad, P.W. 3, and others came and saw the illicit act with the victim and got her free and the child disclosed about the occurrence. However, P.Ws. 1, 2 and 3, the neighbours, have turned hostile, P.Ws. 4 and 5 is the mother of the victim and the informant. However, the mother of the victim has stated that on cry her husband ran to the place of occurrence and he saw Prem Kumar had untied the pant of Shobha Kumari and has pressed the victim and was trying to do illicit act and in paragraph 7 contradiction recorded by the investigating officer, P.W. 8, that Prem Kumar has pressed the child and the hand of the victim was tied and similarly P.W. 5 has also deposed in evidence for which the attention drawn in contradiction and, hence, this part of the evidence suffers from contradiction though the victim has also been examined and supported the prosecution case to the extent about the injury on her cheek and has stated that the appellant untied the pant and the doctor has only found injury on the cheek, the sign of teeth on the cheek, and, hence, taking into consideration that there is nothing to make out a case under Section 354 of the Penal Code, but, the ingredient of rape or attempt to rape finds place. It is true that a crime is of a rape suggests the intention, preparation, attempt and then final commission of rape, however, the allegation made even accepted though make out a case under Section 354 of the Penal Code, but, no 4 legal evidence to suggest that there was attempt of rape, hence, having regard to the fact that the conviction recorded under Sections 376/511 of the Penal Code is set aside and the appellant is held to be convicted under Section 354 of the Penal Code. 6. However, having regard to the fact that appellant remained in jail from 28.11.1995 to 30.06.1998 and, hence, the end of justice shall meet by taking plea of the period already undergone and, hence, the appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 05th day of August 2011, N.A.F.R., S.A.