V.G.Palshikar, J. - (1.) This appeal is directed against the order passed by the Additional Sessions Judge Rasingh Nagar in Sessions Case No. 11 /83 convicting the appellant-accused under Section 376 read with Section 511 of the Indian Penal Code and suffering into imprisonment for a period of two years.
(2.) With the assistance of the learned counsel for the accused and the learned Public Prosecutor, I have re-scrutinised and re-appreciated the evidence on record. On re-appreciation of the evidence, it is found that even if the entire evidence of the prosecution is accepted, it cannot be said to be made a cause of attempted rape. Prosecuting PW-1 Patasi in her examination very clearly stated as under: ABHIYUKT NE MERA GHAGHRA UNCHAKARKEMWHENANGAKARDIY A AUR KHUD BHI NANGA HO GAYA. ABHIYUKT MERI IJJAT LENA CHAHATA THA. MAINE CHUDANE KI KOSISH KI AUR 2-3 DHAKKE MARE LAKIN ABHIYUKT NE MUJHE CHODA NAHI TO MAINE SHOR MACHAYA PHIRMANDI KITARAPH SE PRATHVI AUR RAMSWAROOP MOAKE PAR AAYE. UN WGON NE AAKAR LALKARA TO ABHIYUKT VHAN SE BHAG GAYA."
(3.) I see no reason to disbelieve the statement of the prosecutrix and consequently it is a clear case where the accused has outraged the modesty of the woman by assaulting her in the manner he has done it. However there is no evidence of any attempt to commit rape. Interest of justice therefore, be required that the appeal is partly allowed. The conviction under Section 376 read with Section 511 is set aside instead the existing convicting under Section 354.;