Pradeep Kumar, J. - (1.) ON repeated call, nobody appears on behalf of the appellant to argue this case.
(2.) ON the request of the Court, Mr. Tapas Roy argue this case as Amicus Curie. The instant appeal is directed against the judgment of conviction dated 04.02.2000 and order of sentence dated 05.02.2000 respectively passed in S.T. No. 333 of 1997 by Shri Kumar Ganesh Dutt, 2 Additional Sessions Judge , Palamau at Daltonganj by which judgment he found the appellant guilty under Section 376 of the I.P.C. and sentenced appellant to undergo R.I for ten years and fine of Rs. 1000/ - (one thousand only).
(3.) IT is submitted by learned Counsel for the appellant that it appears from the F.I.R., only allegation made by the informant is that attempt of rape was made by the accused/appellant and on the basis of the said F.I.R., after investigation, police found that the case under Sections 376 and 511 of the I.P.C. and learned Magistrate took cognizance of the case under Section 376 and 511 of the I.P.C. Since, the case was exclusively triable by the court of Sessions, learned Magistrate committed the case to the court of Sessions. Subsequently, the case was tried by learned 2 Additional Sessions Judge, Palamau at Daltonganj, who found the appellant guilty under Section 376 I.P.C, but there is no evidence that the accused -appellant committed rape upon the victim girl even the medical report, which was proved by P.W. -9 Dr. Sudakshina Lalla, a lady medical officer, also shows that no rape was committed. In that view of the matter, the conviction of the appellant under Section 376 of the Indian Penal Code is bad in law and fit to be set aside.;