JUDGMENT 1. - Appellant aggrieved of his conviction for offences of Section 376 read with 511 I.P.C. and sentence of three and half years rigorous imprisonment and fine of Rs. 250/- for each offence has preferred this appeal. 2. Alleged events leading to appellant's prosecution are that on 23.10.1988, at about 5 P.M., Mani Ram PW-2 presented his thumb impression bearing report Ex.P-1 at Police Station alleging that in last night of 22.10.2008, he was out in a "Jagran" and at home, was his wife Smt. Chando PW-1 with three children including nephew PW-3 Kaliyan and at about 11 in the ngiht appellant scaling wall entered in his house and tried to rape with wife. On shouting of her, children woke up who also shouted so villagers gathered and accused again scaling wall ran away. In F.I.R. also is averred that appellant his abitual of such acts who earlier also faced three such cases. Also averred in F.I.R. is that in night in Jagran, he was informed of the incident by Kalu Ram and people advised and told him that as it is a matter of village dignity so panchayat to be convened next morning - next day Panchayat assembled but accused Kishan Lal did not turnup even on calling and his father stated that his son is not in his control so people advised him to lodge report and accordingly is lodged. Registering F.I.R. No. 169/1988 Ex.P-4 for the offences of Section 457, 376, 511 I.P.C. ASI Amarjeet Singh PW-3 visiting place of occurrence prepared memos Ex.P-2 and Ex.P-3 and arrested appellant on 28.10.1988 vide memo Ex.P-4. After usual investigation and statement of witnesses etc., charge-sheeted submitted and case committed. 3. Appellant charged for the offence of Section 376/511 I.P.C. that he in night between 22-23.10.1988 in order to have sexual intercourse and rape. with Mst. C he scaling wall entering the house attempted rape, claimed trial. 4. Of the prosecution witnesses, examined Smt. Chando PW-1 is the person in relation to whom the incident occurred and Mani Ram PW-2 is her husband who lodged report, Kaliyan PW-4 niece who was sleeping near PW-1 and PW-4 Nannudi is person who reached after the incident whereas Amarjeet Singh PW-5 is the Investigating Officer. 5. Accused explained that witnesses telling wrong and he implicated falsely. 5. Accused explained that witnesses telling wrong and he implicated falsely. Regarding earlier cases, appellant stated that in one he have given benefit of probation and in other acquitted on compromise. Appellant asserted that Gopi Ram contested Ward panch election and defeated by Mani Ram PW-2 and as he supported Gopi Ram so this false case lodged. In defence examined Gopi Ram DW-1 who deposes that he contested and defeated by complainant in panchayat ward election and accused helped him in election. 6. Learned Judge believing evidence convicted and sentenced the accused appellant as above. 7. On behalf of appellant argued is that (i) F.I.R. is delayed atleast by 18 hours and no plausible reason - delivered in the Court only after two days on 25.10.1988 (ii) three child aged 10 and 5 years all alleged to be sleeping near on only one cot not probable - version of PW-1 is highly improbable - inconsistency about number of cots 2 or 3 (iii) witnesses of neighbourhood and named in F.I.R. not examined'(iv) substantial difference of timing - incident is said to be of about 11 P.M. but according to appellant, he informed 10.45 A.M. and he came back immediately whereas PW-3 tells of midnight 12. (v) defence theory of false case because of animosity of panchayat election probable. 8. Reading statement of witnesses and drawing attention of Court about inconsistencies, omissions and contradictions, learned counsel argued that PW-3 did not witness the occurrence and PW-1 not was in enclosed house but only in compound of walls of 3-4 ft. height. Lastly submitted that alleged incident if held to have committed by the appellant, is a indecent act falling under Section 354 I.P.C. and incident is of 25 years ago. 9. Learned Public Prosecutor countering above arguments submitted that learned trial Judge very well dealing with all aspects arrived at conclusions of attempt and appellant rightly convicted. 10. Considered arguments and perused the record. 11. 9. Learned Public Prosecutor countering above arguments submitted that learned trial Judge very well dealing with all aspects arrived at conclusions of attempt and appellant rightly convicted. 10. Considered arguments and perused the record. 11. Smt. C PW-1 deposes that her husband was out in a Jagran and she was on one cot and three children in other cot were sleeping in compound - at around midnight accused Kishniya came- scaling wall and removing mosquito net of her cot came - removing her ghaghra and his pyjama tried to open her nicker - as she shouting loudly inflicted fists on accused, children woke up and when accused could not succeed because of her resistance, shouting and fists, he ran away scaling wall. PW-1 states that appellant tried to have intercourse with he and by the time Bhagwana, Nanji, Parmeshwari came hearing voices, the appellant ran away - her husband was called by Kaliya and Nanka to whom narrated was incident - appellant searched but not found. In morning, panchayat convened where also appellant did not turn up despite calling and his father expressed his inability and son not being in his control, so, complained to police. In cross-examination PW-1 states that her husband went to Jagran after sunset then after two hours they did go to sleep with doors bolted from inside - she woke up only when appellant. coming inside mosquito net tried to make her clothes up - her 2-3 glass bangles broken and pieces fell on floor which by the time the police came, cleaned up by her - as the persons reaching there knocked door, appellant ran away and she unbolted from inside. PW-1 states that in between house of her and accused, are 4-5 houses and they used to visit each other and house of Smt. Nanki is 2-3 houses away. 12. Kaliya PW-3 a child witness says that on three cots;. they all were sleeping, on one Chando and on remaining two children. According to PW-3, when on hearing shouts of his aunt, he woke up, aunt was shouting and appellant was lying over her holding his pyjama who ran away and then came there Nanak Lal and others. 12. Kaliya PW-3 a child witness says that on three cots;. they all were sleeping, on one Chando and on remaining two children. According to PW-3, when on hearing shouts of his aunt, he woke up, aunt was shouting and appellant was lying over her holding his pyjama who ran away and then came there Nanak Lal and others. This witness PW-3 states of going with Nanak Ram and informing uncle - uncle returned with him - in cross-examination states that he did not tell police of appellant holding aunt and also not narrated of accused running away holding his pyjama. 13. Considering testimony of this witness, only inference can be of shouting of her aunt and appellant running away from there. 14. Smt. Nannudi PW-4 lives two houses away from the house of PW-1 who deposes that her husband was also out in Jagran in night and at 11-12 0' clock. She heard shouting of Smt. C of assaulting her by Kishnia so she running reaching Chando's house called her and Chando responded telling of physical assault by Kishnia and unbolting the door. Nannudi PW-4 states that Nanak Lal, Parmeshwari and also others came. Chando was in a fearful state with child weeping who named Kishan Lal and then Nanak Lal went to call Mani Ram - in cross-examination states that a little after arrival of Mani Ram, husband of this witness PW-4 also reached there. Confronted of statement during course of investigation Ex.D-3 that she also went in Jagran and returned early with husband, this witness PW-4 denied the same. This contradiction is inconsequential because as per Ex.P-3 earlier statement also she and her husband returned from Jagran early. Similarly, Ex.D-3 do not find mention of coming of husband of PW-4 at that time and are mentions that she was awake. There is no doubt that Nannudi PW-4 reached at house of PW-1 on hearing of shouts. From the evidence of PW-4, minimum is established that Smt. C shouted in the night and when PW-4 arrived she was weeping. 15. Mani Ram PW-2 narrates that he was out to attend Jagran at Budd Ram's house which is at about 5-6 times distance from his house where at around 11 came Nanak Ram and Kalu Ram and asking him for home on way told that Kishan Lal entering house tried to do improper act with wife. 15. Mani Ram PW-2 narrates that he was out to attend Jagran at Budd Ram's house which is at about 5-6 times distance from his house where at around 11 came Nanak Ram and Kalu Ram and asking him for home on way told that Kishan Lal entering house tried to do improper act with wife. Mani Ram PW-2 states that when he reached house there also were Smt. Nannudi, Rawna Ram and others and wife narrated the incident and as he prepared for reporting to police, neighbours telling that it is a matter of neighbours so let panchayat be convened, in morning and accused to be beaten by shoes - in morning in panchayat 10-15 people assembled but appellant did not appear even on calling and his father coming on second call expressed of his son not being in his control. Then this witness PW-2 getting the report Ex.P-1 by some petition writer presented the same at Police Station. In cross-examination PW-2 states that walls of compound are about 4-5 ft. height and persons through visible across the wall - broken bangles were on floor - he reached the Court premises for lodging report and then Police Station in evening. PW-2 Mani Ram tells that with then support of appellant he contested an election of panchayat against Gopi Ram - denied that appellant opposed him in election, therefore, is this false case. 16. Arguments advanced of there being two or three cots and non- seizure of broken bangles are of no significance. As per PW-1, two cots and PW-3 states of three but it is to be noted that Kaliya PW-3 is a child witness and three children were of age 10, 8 and 5. So it may be upto the children to occupy either one or both. When police reached there after incident, obviously bangles till then cannot remain in the compound. F.I.R. is lodged next day evening. So it may be upto the children to occupy either one or both. When police reached there after incident, obviously bangles till then cannot remain in the compound. F.I.R. is lodged next day evening. Here it is to be noted that the incident was of late night at about 11 P.M. and husband coming from a spiritual assembly, In these circumstances, when it also appears from the evidence that accused and his parents living just 4-5 houses beyond of complainant and they had normally good relations - incident regarding and of attempt i.e. non completion of act, in such circumstances, when people of village of close locality are involved it is very much possible and natural that they give a second thinking on necessity of reporting the matter spontaneously to police. Definite evidence is that in the night itself there was some talks of gathering people in the morning and reprimanding etc. of the appellant but this could not be materialised because appellant did not turn up and his father expressed helplessness. So the delay i.e. from morning to evening stands explained. 17. As per above analysis, PW-4 the neighbour who reached soon after the incident did not see the appellant. Mani Ram PW-2 reached afterwards and as per evidence of PW-3, only inference is that when he woke up, appellant was running away. So for determining whether the act was upto attempt or not is only evidence of PW-1. It transpires from the evidence that the place where Smt. C was sleeping is the compound of their house with walls of 4-5 ft. and persons across the wall can easily see each other as is admitted by PW-2. The incident occurred at about 11 P.M. in night. In between house of appellant and complainant are 4-5 houses. Again as per PW-1 after scaling wall, mosquito net was removed and appellant tried to remove her clothes and also untied his own pyjama but could not complete because of her resistance. Removing of clothes is not corroborated by any other evidence and removal of mosquito net can hardly be without a little disturbance. Three children were there and premises surrounded by only 4-5 ft. height wall. Accused entering there and assaulting in some manner to Smt. Chandu is proved but in the totality of circumstances, it becomes doubtful that accused did attempt for intercourse. 18. Three children were there and premises surrounded by only 4-5 ft. height wall. Accused entering there and assaulting in some manner to Smt. Chandu is proved but in the totality of circumstances, it becomes doubtful that accused did attempt for intercourse. 18. Now it is to be seen whether the act amounts to attempt or it was mere preparation and preparation not if to the extent of attempt then the act comes within the ambit of Section 354 I.P.C. i.e. outraging the modesty of a woman. Here, as above, no signs of struggle atleast effective struggle are. As per PW-1 her ghaghra removed by making it up and try was to remove her nicker. Though 2-3 bangles broken but no marks of injury appear on hands of Smt. C. All this tend to suggest that stage of strong resistance probably not occurred. Appellant spontaneously ran away. boon alter discussion and talks for convening panchayat and panchayat assembled. All these facts and circumstances prove that accused entering there indecently assaulted Sint. C outraging her modesty. Appellant doing the act obvious. intended and was knowing that he will thereby outrage modesty. 19. Therefore, in the opinion of the Court, in the facts and circumstances of the case, the act falls short of attempt and the appellant is to be held guilty for offence of Sections 354 and 452 I.P.C. 20. Considering the quantum of sentence, proved is the offence of Sections 354 and 452 I.P.C., it emerges that appellant remained in custody from last October, 1988 to early March, 1989 i.e. about four months. Though for such acts, not much leniency or sympathy,can be but as above appellant has remained in custody for about four-five months and about 25 years have lapsed to incident, so now no useful purpose would be served by sending him to imprisonment. 21. In the opinion of the Court, sentence for the period already undergone with fine of Rs. 2,000/- for the offence of Section 354 I.P.C. and Rs. 1,000/- for offence under Section 452 I.P.C. shall meet the ends of justice. 22. Accordingly, the appeal is partly allowed. Setting aside the conviction for the offence of Sections 376/511 I.P.C., convicting the appellant for the offence of Sections 354 and 452 I.P.C., he is sentenced for Section 354 I.P.C. to the period already undergone alongwith fine of Rs. 1,000/- for offence under Section 452 I.P.C. shall meet the ends of justice. 22. Accordingly, the appeal is partly allowed. Setting aside the conviction for the offence of Sections 376/511 I.P.C., convicting the appellant for the offence of Sections 354 and 452 I.P.C., he is sentenced for Section 354 I.P.C. to the period already undergone alongwith fine of Rs. 2,000/- and for offence under Section 452 I.P.C. to the period already undergone fine of Rs. 1,000/-, in default of payment of fine, respectively 40 days and 20 days simple imprisonment. The appellant is on bail. His bail bonds are discharged. The appellant to deposit fine in the trial Court on or before 19.6.2009.Appeal partly allowed. *******