JUDGMENT
C.R. Pal, J.
1. The appellant assails the order of conviction and sentence passed by the learned Additional Sessions Judge, Parlakhemundi in Sessions Case No. 30 of 1992 convicting and Sessions Case No. 114 of 1992 sentencing him under Section 376, IPC read with Section 511, IPC to undergo rigorous imprisonment for seven years.
2. The case against the appellant, in brief, is that on 29-3-1991 at about noon while the victim was returning to her house on the jungle road from the work site of her son at Atersingh road after providing him with his meal the appellant caught hold of her and made her naked and forcibly performed sexual intercourse with her. The victim came to her house, but being apprehensive of mal-treatment by her husband for her involvement in such an affair she went away to her mother’s house. On 11-4-1991 she was brought back by her husband when the victim narrated about the occurrence. Therefore, she lodged a written information at the Police Station.
3. The case of the appellant is a denial of the allegations levelled against him.
4. In order to establish its case the prosecution examined as many as five witnesses out of whom P.W. 1 is the victim and P.W. 2 is her husband. P.W. 3 is one of the village gentry and P.W. 4 is a witness to the seizure of the Saree belonging to the victim lady and the P.W. 5 is the Investigating Officer. The trial Court relying mainly on the evidence of the prosecutrix has convicted and sentenced the appellant as aforesaid.
5. The learned counsel appearing for the appellant contended that the delay in lodging the F.I.R. and the substantial variation in the F.I.R. case and the case deposed to in the Court by the prosecutrix make prosecution case doubtful. The learned Addl. Standing Counsel, on the other hand, submitted that the delay caused in lodging the F.I.R. having been explained the same may not affect the prosecution case adversely. It is also submitted that the evidence on record clearly establish the commission of the offence by the appellant and as such, the conviction is well founded. In this context, it is noticed that the prosecutrix lodged the written report, Ext. 2, on 10-4-91 at 10.00 A.M. After receiving the Ext. 2 the I.O. also recorded her statement and prepared Ext. 3 on the oral version of the prosecutrix. It appears from the judgment of the trial court that the court below has treated Exts. 2 and 3 as F.I.Rs. From the evidence of the I.O. it appears that though he has treated Ext. 2 as the F.I.R. still he recorded the oral version of P.W. 1 and treated the same (Ext.3)) as apart of the F.I.R. In this context, the I.O. (P.W. 5) has deposed :
“At 10.00 A.M. on that day, I received a written report of the complainant Hnama Singh. I treated that report as F.I.R. Ext. 2 is the F.I.R. and Ext. 2/1 is my endorsement. The informant gave thumb impression in my presence. Besides written report I have reduced the oral report of the complainant into writing. Ext 3 is that report….”
The above testimony of the I.O. shows that the Ext. 3 is a statement given to the I.O. in course of investigation and as such, the same cannot be treated as F.I.R. and cannot be used for any purpose other than the purpose mentioned under Section 162, Cr.P.C. From Ext. 2, it appears that the incident occured on 29-3-91. The F.I.R. was lodged on 10-4-91 at 10.00 A.M. The prosecutrix has deposed that after the alleged incident she left her house for her mother’s house. She has also deposed that being ashamed she could not tell about the incident to the villagers. She has deposed that after her husband’s return to the village he came and took her back to his house when she narrated about the incident to him. Her husband who has been examined as P.W. 2 has deposed that after he brought his wife to his village the prosecutrix narrated about the incident to him. From his evidence it appears that he got a report written by one Anutap Pani and presented the same to Christian Mandali. When the Christian Mandali failed to take any decision he reported the incident to the police. The report presented to the police according to him was drafted by an Advocate’s Clerk. The delay caused in filing the F.I.R. has been explained as above. It is evident that the prosecutrix is an illiterate rustic villager and her husband was absent from his house on the date of the alleged occurrence. Out of shame she could not also disclose about the occurrence before the villagers and she went to her mother’s house. She disclosed about the incident to her husband when he brought her back from her mother’s house and her husband complained before the Christian Mandali. But when Mandali failed to take any decision, the matter was reported on 10-4-91 at the Police Station. The above circumstances along with the nature of the offence alleged where the dignity and honour of women was at stake explain the delay caused in lodging the information and as such the prosecution case cannot be thrown out of board only on the ground of delay in lodging the F.I.R. However, since the charge is for an offence of attempt to commit rape the evidence is to be carefully scrutinised to see how far the finding of the trial court to support the conviction under Section 376 read with Section 511, IPC is sustainable.
6. In the F.I.R., Ext. 2 it was her case that while she was returning back alone to her house after providing food to her son, the appellant caught hold of her waist from behind and after making her naked committed rape on her forcibly. In court she has deposed that the appellant came from behind and without telling anything caught hold of her waist, by his two hands then opened his lungi and tried to have sexusal intercourse with her but due to resistence the semen of the accused fell on her cloth and the accused could not succeed to complete full sexual intercourse. But in her cross-examination she has stated that at the time of opening of his lungi the accused was holding her by one hand. She has further deposed : “The acccused had never lifted or opened my cloth”. When the accused left her, she saw that her cloth was stained with semen. From her evidence it appears that the accused came from her backside and caught hold of her. In that position without removing her cloth he tried to have sexual intercourse and in that process there was ejeculation and he left the prosecutrix. From the above evidence of the prosecutrix, it is difficult to conclude that the appellant had the sole intention to rape her. From her evidence it appears that her cloth was neither removed nor opened. It also appears that the appellant tried to fulfil his lust from the backside of the prosecutrix without removing or lifting the cloth. From the above circumstances, it cannot conclusively be held that the accused had the sole intention to commit the offence of rape. There is no precise definition as to what amounts to an attempt to commit a crime. Whether a certain act amounts to attempt to commit a particular offence is, therefore, a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. “A person commits the offence of ‘attempt to commit a particular offence’ when (i) he intends to commit that particular offence; and (ii) he, having made preparation and with the intention to commit the offence; does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence”. Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 : (1961 (2) Cri LJ 822). Keeping the above observation of the apex court in view when the evidence adduced by the prosecutrix is examined it is noticed that the evidence are insufficient to exclude that the appellant had no other intention but to commit the rape. From the evidence on record it appears that the prosecutrix was caught from behind and before the appellant could either lift or remove the cloth or do anything more he spent himself and left the prosecutrix. It is, therefore, difficult to conclude that the acts done by the appellant were done with the intent to commit the particular offence i.e. rape and he had no intention to commit unnatural offence. Of course, on the evidence available on record the appellant cannot also be held guilty even if an offence under Section 377, IPC read with Section 511 IPC, as the appellant has neither been charged for that offence nor there is evidence on record to establish penetration which is an essential ingredient of the offence under Section 377, IPC in such a situation the appellant cannot be found guilty of an attempt to commit the offence of rape or sodomy but at the same time the actions of the appellant which fall short of commission of the alleged offence amounts to an indecent assault on the prosecutrix making him liable under Section 354, IPC.
7. The learned counsel appearing for the appellant pointed out the discrepancies in the evidence of the prosecutrix as well as other prosecution witnesses and contended that in view of such discrepancies which create doubt about the truthfulness of the prosecution witnesses, their evidence should be discarded and the appellant be acquitted. To mention some of the discripancies the learned counsel for the appellant submitted that though the prosecutrix stated in her examina-tion-in-chief that the appellant caught hold of her with his two hands, in her cross-examination she has stated that while opening the lungi the appellant was holding her by only one hand. But the above statements of the prosecutrix do not show any discrepancy as the statement made in cross-examination relates to the action of the appellant in course of occurrence whereas the statement given in examination-in-chief relates to beginning of the occurrence. The learned counsel also pointed out the discrepancies in the evidence of the prosecutrix, the l.O. and the witness about the identity of the saree (M.O.1 ?). But all the three witnesses have deposed that a saree of the prosecutrix was siezed under Ext. 1. The discrepancies in the discription of the saree can be of no consequence as the seized cloth was not sent for chemical examination. Absence of chemical examination or even absence of nominal stains cannot be a ground to discard the other evidence of the prosecutrix in toto as there is nothing to show that the prosecutrix or her family members are inimically disposed towards the appellant and no motive is imputed as to why the prosecutrix has come forward with such a case against the appellant stating her own dignity. But as has already been pointed out the evidence on record do not establish the offence under Section 376 read with Section 511 IPC though the evidence establish a case under Section 354 IPC.
8. In the result, the order of conviction and sentence passed by the learned Additional Sessions Judge, Parlakhemundi under Section 376 read with Section 511 IPC is modified and the appellant is found guilty under Section 354 IPC and is convicted and sentenced thereunder to undergo rigorous imprisonment for two years.