1. Heard Smti Rita Devi, learned Counsel, appearing for the appellant. Also heard Smti A. Begum, learned Additional P.P., Assam, for the respondent. 2. This appeal is directed against the judgment and order dated 26.05.2003, passed by the learned Sessions Judge, Sonitpur, in GR Case No.996/2001, convicting under Section 448/342/376 IPC and sentencing him to undergo RI for 3 (three) years and also to pay fine of Rs, 1,000/- only, in default to undergo RI for another 3 (three) months under Section 376 R/W Section 511 IPC to undergo imprisonment for 3 (three) months and also fine of Rs.500/- only, in default to undergo for another 1 (one) month under Section 448 IPC and further to undergo imprisonment for 3 (three) months and to pay fine of Rs.500/- only, in default to undergo RI for another 1 (one) month under Section 342 IPC, which would run simultaneously. 3. Briefly stated, the prosecution case, is that on 28.07.2001, at about 11 a.m., taking advantage of the absence of parents, the accused committed trespass into the house of the informant and kidnapped his first daughter Anju Rani (real name withheld) and kept her confined, in his house. The victim’s father, Shri Nirmal Nath, lodged the FIR, with the local Police and a case being Dhekiajuli P.S. Case No. 139/2001, was registered under Section 448/342/376/511 IPC. On completion of the investigation, the I/O, submitted charge-sheet against the accused under the aforesaid Sections of law. On committal, the learned Sessions Judge framed charge against the accused under the aforesaid Sections of law. The charge being read over and explained, the accused pleaded not guilty and demanded trial. 4. The prosecution examined as many as 9 (nine) witnesses including the victim girl and the Medical Officer. The accused examined none in his defence and the learned trial Court, on consideration of the materials and evidence on record and upon hearing the learned Counsel for the parties, convicted and sentenced the accused, as mentioned earlier. 5. The most serious offence, alleged against the appellant, is the offence under Section 376 IPC. In my considered view, without going into the other details of the offence, it is necessary to examine whether there are sufficient materials and evidence on record, substantiating the allegation/charge of rape within the meaning of 376 IPC. For this purpose, the Court has to examine and appreciate the evidence of the victim girl. 6. In my considered view, without going into the other details of the offence, it is necessary to examine whether there are sufficient materials and evidence on record, substantiating the allegation/charge of rape within the meaning of 376 IPC. For this purpose, the Court has to examine and appreciate the evidence of the victim girl. 6. In this case, the victim was examined as PW-7. In her deposition, she has stated, amongst other, that in the absence of her parents, the accused entered her house and forcibly dragged her to his house, in presence of the younger sister. The victim was confined in the house of the accused and thereafter he forcibly stripped off her wearing garments including her underwear and started bitting her cheeks and squeezing her breast. She gave vivid narration how the accused outraged her modesty. To put them in her own words:- “……………Accused Bhaben Nath dragged me to the next house i.e. house of Bhupen Nath, elder brother of the accused and dragged me through the Jika cultivation of the accused and took me inside his house. Thereafter accused bolted the door from inside the house. Thereafter accused forcibly stripped off my wearing garments including my underwear and started bitting my cheeks and squeezed my breast. Accused forcibly took off my underwear and made an attempt to commit rape on me. Being scared I beseeched the accused not to rape me and agreed to put vermillion on my forehead so that he would not damage my chastity. The accused being assured got his finger cut and put blood on my forehead. Accused wanted confirmation from me whether I would stay with him or not, and told me that if I do not agree to stay with him he would administer poisonous substance to me which was carrying with him. I pretended that I would fulfill his wishes and therefore accused did not administer that poisonous substance ‘Furand’ on me. After sometime Police reaches there and rescued me. Accused did not open the door till police arrived and asked me to open the door. I narrated the incident before the women police and also in presence of other persons. My mother, father and other people were there at that time.” 7. After sometime Police reaches there and rescued me. Accused did not open the door till police arrived and asked me to open the door. I narrated the incident before the women police and also in presence of other persons. My mother, father and other people were there at that time.” 7. The evidence of the victim girl is quite clear that she was not raped by the accused and, in fact, an attempt to commit rape was made by him. In a rape case, the evidence of the victim girl should receive maximum evidentiary value and when a victim girl has deposed that she was not raped, there is no scope for convicting the accused under Section 376 IPC. 8. Now, coming to the evidence of the Medical Officer (PW-1), deposed that, he medically examined the victim girl in Tezpur Civil Hospital. The medical report has been proved and marked as Exhibit- 1. In the medical report, the Medical Officer, opined that there was no evidence suggesting rape and her age was above 18(eighteen) years. As per pregnancy test report, result was negative. In the said medical report, no injury to the person of the victim girl has been recorded. From the aforesaid medical report, it is apparent that there was no sign of rape. As the victim received no injury on her person, it can not be said that the accused person used force in making the alleged attempt to commit rape on her. The victim girl, in her evidence, stated that the accused is a neighbour but she did not have even talking term with him. But it appears that the accused person loved the victim and he intended to marry her. 9. From the record, it appears that the accused used to live in a house adjacent to victim’s house and, although, she deposed that there was no talking terms, there is hardly any basis to believe her evidence in this regard. The alleged incident took place at 10 A.M. At such time inmates are available at home. Neighbours are also naturally available at such hour of the day. 10. On the basis of the aforesaid evidence on record, in my considered view, no conviction can be recorded under Section 376 IPC and the conviction as recorded by the learned Trial Court, can not be upheld. Neighbours are also naturally available at such hour of the day. 10. On the basis of the aforesaid evidence on record, in my considered view, no conviction can be recorded under Section 376 IPC and the conviction as recorded by the learned Trial Court, can not be upheld. In view of the above, the conviction and sentence awarded against the appellant under Section 376 IPC is set aside and quashed. 11. So far conviction under Section 448 IPC, is concerned, on the basis of the evidence that both accused and the victim girl were neighbours and the alleged incident took place in the morning, there is no strong basis for convicting the accused under Section 448 IPC and in that view of the matter, conviction and sentence recorded under Section 448 IPC, is not sustainable and accordingly, the conviction and sentence under Section 448 IPC as imposed by the learned trial Court is set aside and quashed. 12. As regards the conviction and sentence under Section 342 IPC, I find no ground for interference with the same inasmuch as, there are sufficient materials and evidence to the effect that, the accused forcibly dragged and confined her in his house and she could be recovered only after the Police came to the place of occurrence. In this regard, the I/O, who was examined as PW-9, deposed that the accused was present in his house and the victim girl was found confined in his house.The evidence of the PW-9 is enough to convict the accusedunder Section 342 IPC and accordingly, the conviction and sentence as awarded by the learned trial Court against the appellant calls for no interference and accordingly, same is upheld. 13. It is stated by Smti Rita Devi, learned Counsel, appearing for the accused/appellant that he was arrested during investigation and was in custody for 2 (two) months and he was subsequently allowed to remain on bail. In my considered view, the ends of justice would be met, if the appellant is sentenced to undergo imprisonment for 2 (two) months i.e. the period already undergone by him with fine of Rs.1,000/- to be paid to the victim. The aforesaid amount of Rs.1,000/- shall be deposited by the appellant in the Court of learned Chief Judicial Magistrate, Sonitpur within a period of 40(forty) days from today and the same shall be paid to the victim. The aforesaid amount of Rs.1,000/- shall be deposited by the appellant in the Court of learned Chief Judicial Magistrate, Sonitpur within a period of 40(forty) days from today and the same shall be paid to the victim. In case, the appellant fails to pay the fine to the victim, the appellant shall be liable to undergo imprisonment for 1 (one) month. 14. The appeal stands partly allowed with modification in the conviction and sentence as indicated above. 15. Return the LCR forthwith. _____________