JUDGMENT Hon’ble Vinod Prasad, J.—The sole appellant Banwari is aggrieved by his conviction under Section 376 IPC and implanted sentence of 7 years RI, recorded by Vth Additional Sessions Judge, Bareilly in S.T. No. 242 of 1980, State v. Banwari, vide impugned judgement and order dated 28.8.1981, and consequently has challenged the same in the instant appeal. 2. Before dilating and deliberating on the harangued contentions by the appellant and respondent State, unfolded prosecution allegations against the appellant, in nut shell, are sketched below. 3. Informant Dori Lal (PW4) and his wife Hulasi (PW2) had three daughters and a son namely Kitka, Kanti, Ram Dulari(PW1) and Govind Ram Badri. On the date of the incident, 5.3.1979 at 5 p.m., PW1 Ram Dulari, a young damsel aged about 14 years, with her adolescent sister Kanti, aged about eight years, and their mother PW2 had gone to their opium field to assess their opium crop when their mother PW2 asked them to pluck some gram saplings for feeding their oxen in the other half of their same plot at a distance of 30-35 paces. Ram Dulari P.W1 and Kanti, obeying their mother, went to gram field to pluck the saplings, when appellant Banwari approached them and asked from PW1 for a match-box. He was accosted by PW1 who replied that she does not have it as she does not smoke. No sooner thereafter appellant caught hold of PW1 by her breasts and pushed her on the ground near earthen boundary (mend) of the field of Vedram and after lifting her kirtle (petticoat) attempted to outrage her modesty at gun point threatening her with her life. Feeling pains in her private part PW1 shrieked, on which her sister Kanti rushed to her mother PW2 and informed her that appellant was assaulting PW1. Mother PW2 came rushing at the scene and started assaulting appellant with uprooted jujube or plum (Beri) shrubs. Meanwhile co-villagers Birbal and Siya Ram also arrived at the scene and therefore appellant fled away from the scene with his country made pistol hurling threats to them that he will annihilate them like he had annihilated Summeri. At that time father informant PW4 had gone to the market. After his return, he was narrated with the faux pas. Because of falling darkness they did not go to the police station to lodge the FIR. At that time father informant PW4 had gone to the market. After his return, he was narrated with the faux pas. Because of falling darkness they did not go to the police station to lodge the FIR. Following day appellants men where in their look out and therefore they did not lodge the FIR on the following day as well, which FIR Ext. Ka 3, ultimately was orally lodged on 7.3.1979 at 4.30.p.m at PS Sirauli, district Bareilly after covering a distance of 4 miles east. 4. At the police station kirtle (petticoat), Ext.1, of PW1 was seized and it’s seizure memo Ext. Ka 4 was prepared and thereafter she was dispatched for medical examination to district women hospital, Bareilly. 5. Dr. Smt. Usha Jain @ Agarwal examined prosecutrix PW1 on 8.3.79 at 3 p.m. who was brought to her by Const. CP 586 Girja Shankar and she has proved her medical examination report as Ext. ka 1, in which following facts are noted : Height:- 4Ft & 1/2" Teeth:- upper-14 lower-14 Weight: 40 kg. Mark :- Axillary fine few hairs. Pubic hair black Pubic-thick black coloured hairs developed. Brest: Developed. M. 1:- (1) On black pin pointed mole on the Lt forearm 1 and 1/2" away from wrist joint. (2) One linear headed scar on Rt side of fore head about 1/4" x 1 c.m. On/Exam :- No marks of visible injury an any part of body. P/V:- No visible marks of scratches or injury on the private part and thighs. Hymen its edge and mucus membrane rid & congested and tender. Hymen admit one fingers with pain and difficulty. No Bleeding on examination. No old blood stain. Present clothes already sealed. Hymen Lat torn (intect) vaginal smear taken for the examination of sperms dead of alive. Pointed wall intect no injury in the vagina detected. (1) True copy of vaginal Swab report dated 8.3.1979 shown no living as dead sperm seen. X-ray report No. 1024/9.3.1979 (2) X. Ray rt. Elbow A.P. View : Shown fusion of all the epiphysis of the (P.T.) forming elbow joint with thin respective diaphysis. X-Ray Rt wrist Ap. View The epiphysis of lower ends of radius and ulna yet fused with thin respective epiphysis. Conclusion : (1) Her age is above fourteen (14) and below sixteen (16) years of age on the basis of X-ray report, X-ray plate and physical examination. X-Ray Rt wrist Ap. View The epiphysis of lower ends of radius and ulna yet fused with thin respective epiphysis. Conclusion : (1) Her age is above fourteen (14) and below sixteen (16) years of age on the basis of X-ray report, X-ray plate and physical examination. (2) One the basis of examination, an attempt at penetration has been tried. 6. Investigation ensued into the crime ultimately resulted in charge-sheeting the appellant vide Ext. Ka 5, dated 8.5.79 and on that basis case No. 1300 of 79 State v. Banwari was registered in the Court of J.M. Aowla, Bareilly on 29.11.1979 fixing 18.2.1980 for accused appearance. Finding the case triable by Session’s Court, VI Additional Munsif Magistrate, Bareilly, to whom the case was transferred meanwhile, committed appellant’s case to Session’s Court vide committal order dated 24.6.80, where it was registered as S.T. No. 242 of 1980, State v. Banwari on 25.6.1980. Vth Additional Session’s Judge, charged the appellant with offence under Section 376 IPC on 19.2.1981, which charge was read out and explained to the appellant who denied the same and claimed to be tried. 7. To support it’s case and bring home appellant’s guilt during the trial, prosecution in all examined five witnesses out of whom victim P.W.1 Ram Dulari, her mother P.W.2 Hulasi, father P.W. 4 Dori Lal and PW5 Birbal were fact witnesses. P.W.3 Dr. Smt. Usha Jain @ Agarwal is the doctor who had medically examined the victim. No other witness was examined by the prosecutor. Perusal of lower Court record indicated that formal proof of Chik FIR(Ext. Ka 3), seizure memo of kirtle (petticoat) (Ext. Ka 4), seizure memo of broken bangles (Ext. ka 8), charge-sheet (Ext. ka 5) and GD (Ext. Ka 7) and site plan (Ext. ka 6) were dispensed with by the accused. 8. In his statement under Section 313 Cr.P.C. accused pleaded false implication because of previous enemity and denied incriminating circumstances appearing against him in the prosecution evidences. He, in his defence, examined DW1 Talebar Das, Lekhpal, to falsify prosecution allegations of having gram crop in the field where incident is alleged to have occurred. 9. Trial Court found the case of the prosecution convincing and guilt of the appellant established to the hilt and therefore, convicted and sentenced him as mentioned herein above in the opening paragraph of this judgement, hence this appeal challenging the said judgement. 10. 9. Trial Court found the case of the prosecution convincing and guilt of the appellant established to the hilt and therefore, convicted and sentenced him as mentioned herein above in the opening paragraph of this judgement, hence this appeal challenging the said judgement. 10. On the preceding facts, I have heard Sri A.B.L. Gaur, learned Senior Counsel for the appellant and Sri Sangam Lal Kesharwani and Sri Patanjali Mishra learned AGAs for the State and have perused entire record of the appeal. Castigating the impugned judgement of conviction and sentence, it is harangued by Sri Gaur that same is not sustainable because the evidence of the prosecutrix tendered during trial is unconvincing, unnatural, inherently improbable and embellished and hence no implicit reliance can be placed on such a version. To support his contentions, learned counsel referred to various depositions, both by P.W.1. Ram Dulari and PW2 Hulasi. According to his submissions incident is alleged to have occurred in day light in the presence of the mother, sister and two other independent witnesses. Time of the incident is stated to be 5.00 p.m. and it is impossible to outrage modesty of a girl in the presence and witnessing of so many people in day time. What is most bizarre, according to the appellant’s counsel, is the prosecution evidence that, although the mother kept on assaulting appellant with jujube/plum (Beri) shrubs, appellant continue to indulge into carnel cognovits rapuite and did not desist. Sri Gaur further submitted that PW1 played on her imagination when she testified that two independent male witnesses Birbal and Siya Ram were standing close by towards her head and they lifted the appellant by his hand and then appellant got up and went away. Learned counsel submitted, it was also deposed that during this period mother kept on assaulting appellant with uprooted shrubs and all these depositions are nothing but wholly imaginary and unconvincing and therefore the same should not be acted upon. It was therefore submitted that the best witness for the prosecution is wholly unreliable and no implicit reliance upon her testimony can be placed. It was further submitted that place of incident is not fixed as neither there is field of opium nor of gram. It was therefore submitted that the best witness for the prosecution is wholly unreliable and no implicit reliance upon her testimony can be placed. It was further submitted that place of incident is not fixed as neither there is field of opium nor of gram. Next it was contended that medical report does not support allegations of rape as deposed by PW1 and contrary to it doctor’s opinion is that only an attempt was made and hence conviction of the appellant for the charge of rape is unsustainable. It is further submitted that father P.W.4 is not a witness of the incident and his testimony is hearsay. For PW5 it was submitted that his conduct itself shows that he had not witnessed any incident. His silence and not to divulge the incident to anybody makes him unreliable and untruthful witness on whom no implicit reliance can be placed. According to his deposition he went back to his house after the incident and during cross examination he had deposed that incident was divulged to him by mother and daughter. Furthering his submissions contended appellant’s counsel that the evidence of P.W.3 Dr. Usha Jain @ Agarwal does not establish the charge of rape at all. He pointed out to the deposition of the Doctor to content that the doctor opined that no rape was committed upon the victim although an attempt was made for the said offence. Learned counsel further submitted that the appellant has been falsely implicated because of the enmity. Incident occurred 29 years ago. Prosecution has failed to substantiate the charge and therefore, appellant should be acquitted. 11. Learned AGAs per contra refuted all the contentions and supported the judgement of conviction. According to their contentions appellant had criminal psyche and was involved in many cases. He was convicted under Section 302 IPC, had faced trial under Section 307 IPC, although acquitted, and was having a criminal proclivity. A person with such psychology, armed with country made pistol can always commit the crime submitted learned AGAs. They concludingly argued that medical report also indicate that there was an attempt to outrage modesty of a young girl aged between 14 and 16 years and therefore, appeal of the appellants sans merits and be dismissed. 12. I have considered the rival contentions and have gone through the evidence on record. They concludingly argued that medical report also indicate that there was an attempt to outrage modesty of a young girl aged between 14 and 16 years and therefore, appeal of the appellants sans merits and be dismissed. 12. I have considered the rival contentions and have gone through the evidence on record. Perusal of the evidence of P.W.1 and P.W.2, who are best witnesses of the incident, indicate that they had testified some of the facts which are embellished, unconvincing and exaggerated version of true happening of the incident. The narration of the incident testified by PW1 is very surreal and un-natural. Her testimony is at variance with medical evidence and is inconsistent and discrepant. She was contradicted by doctor PW3 who opined that no rape was committed upon her although an attempt was made. No injury was found on any other part of her body including private her part and back portion. Doctor has also not ruled out possibility of sustaining red congestion in some other manner. What is totally unconvincing is that incident is alleged to have occurred during day time when mother of the victim was only at a distance of 35-40 paces. Siya Ram was present at a distance of 60-65 paces, and Virpal PW5 was present at a distance of 70-75 paces. Site plan, Ext. Ka 6, mentions all these distances and further it indicates that no place was shown where sister of the victim was present. No blood was found at the spot although, according to victim’s version blood was shown to the I.O. and it had tickled down at the spot. It is next to impossible that modesty of a girl can be outraged in the close proximity of so many witnesses during day time when entire place of incident had no obstacles at all and entire field was visible. Trial judge completely ignored this vital aspect of the evidence and convicted appellant for the charge of rape without separating grain from the chaff. It is unappealing that in day time in the presence of the mother, sister and independent person appellant can successfully inter into carnal inter course just few paces away from where mother was present. It is also not convincing that although mother kept on assaulting appellant with uprooted jujube/plum (Beri) shrubs but appellant continued with his crime and was lifted by his hand. It is also not convincing that although mother kept on assaulting appellant with uprooted jujube/plum (Beri) shrubs but appellant continued with his crime and was lifted by his hand. It is also noticeable that earliest disclosure to the mother by sister of PW1 was that appellant is assaulting PW1. It is wholly absurd to suggest that a mother who is only 30-35 paces away failed to hear shrieks of PW1 when she was assaulted by the appellant. Victim’s statement that independent witnesses were standing towards her head and lifted appellant by his hand also does not inspire any confidence. A parrot like unnatural statement with such inherent intrinsic inconsistencies does no inspire any confidence as mere pedantic reading of evidences is no separating the grain from the chaff. From the evidence of PW2 it transpires that before lodging of the FIR there were consultations and deliberations amongst same caste people in that respect. On an overall analysis I am not convinced that any attempt to rape or rape was committed on the victim. 13. However from evidence on record it can be safely presumed that there was an attempt to molest P.W.1 by the appellant. If over exaggerated version contrary to medical evidences is ignored there was no reason for the prosecution to falsely implicate the appellant without there being any reason for the same and consequently what seems to be probable is that appellant did try to use force against PW1 and resultantly, although his conviction for the charge under Section 376 I.P.C. is unsustainable, he can very well be convicted for the charge under Section 354 IPC. Evidence of the doctor P.W.3 at least brings out this much that victim was subjected to molestation. 14. In view of above, without deliberating further, I am of the opinion that what has been successfully established by the prosecution is the charge of molestation against the appellant and not rape or attempt to rape and in this view of the matter appeal of the appellant deserves to succeed in part. Conviction of the appellant under Section 376 IPC, as has been recorded by the trial Judge in the impugned judgement is not sustainable but appellant can safely be convicted for the charge under Section 354 IPC. Concludingly, appeal is allowed in part. Conviction of the appellant under Section 376 IPC, as has been recorded by the trial Judge in the impugned judgement is not sustainable but appellant can safely be convicted for the charge under Section 354 IPC. Concludingly, appeal is allowed in part. While appellant’s conviction under Section 376 IPC and imposed sentence of seven years RI is hereby set aside, appellant is convicted under Section 354 IPC. On the sentence part of it, since incident occurred more than 31 years ago and in between there is no report of appellant indulging in further crime and it was informed by appellant’s counsel that he has become saint and has renounced the world that in my humble opinion sentence of period of imprisonment already under gone with fine of Rs. 40,000/-, out of which Rs. 30000/- as compensation to the victim PW1 will meet ends of justice. This appeal is partly allowed. Conviction of appellant under Section 376 IPC is set aside and instead he is convicted under Section 354 IPC. Sentence of seven years RI is substituted with period of imprisonment already under gone with fine of Rs. 40000/- out of which Rs. 30000/- is awarded as compensation to the victim PW1. Fine is to be realized as arrears of land revenue from the appellant from his movable and immovable estate by the trial Judge, if the same is not deposited by the appellant within a period of three months from today. After fine is deposited or realised, trial Court will notice the victim PW1 and shall handover compensation to her as awarded above. This appeal is partly allowed as above. Let a copy of this judgement be certified to the trial Court for it’s intimation and further action. —————