JUDGMENT : 1. The instant Criminal Appeals have been preferred against a common judgment of conviction and order of sentence, both, dated 30.06.2003, passed by learned 1st Additional Sessions Judge, Dumka, in Sessions Case No. 141 of 1996, whereby both these appellants have been convicted for the offence committed and punishable under Sections 376/511/34 of the Indian Penal Code and awarded rigorous imprisonment for four years to both the appellants. Both the appellants have separately preferred criminal appeals against the impugned judgment of conviction and order of sentence and are being jointly heard by this Hon’ble Court. 2. The prosecution case is based upon the fardbeyan of Babita Baski (P.W.4), recorded by Officer-in-Charge, Gopikandar Police Station, in presence of the Satya Sikshanand Murmu, Headmaster of the school and friend Kabita Kumari, on 29.04.1995 (Saturday) at around 08.15 A.M. The informant has alleged that, she along with her friend Kabita Kumari, went to clean their cloths at the hand pump situated in front of the house of the Forest Guard, at a distance of 50 Gz. from the house of the forest guard outside of their hostel, while the informant was cleaning her clothes, the appellant Pradeep Gon came and started using filthy languages and thereafter, he lifted the informant along with the bucket of clothes and took the informant inside the room with the help of Manu Das, co-accused (who died during pendency of the appeal and his Cr. Appeal (SJ) No. 927 of 2003 has been abated by this Hon’ble Court) and co-accused Ram Marandi closed the door from inside and thereafter, all the accused persons started teasing the informant. In the meantime, the informant got an opportunity and ran out of the house from the back door. Informant has further stated, that her friend Kabita Kumari went to hostel and raised brawl, upon which the Headmaster and other persons came there and thereafter got knowledge of the occurrence. The informant has claimed, that Pradeep Gon, Manu Das and Ram Marandi, with bad intention, took her inside the house and closed the door from inside but they remained unsuccessful in committing rape. 3. On the basis of the fardbeyan of the informant, police registered Gopikandar P.S. Case No. 08 of 1995, dated 29.04.1995, under Sections 376/511 of the Indian Penal Code. 4. After investigation, the police submitted charge sheet vide no. 3. On the basis of the fardbeyan of the informant, police registered Gopikandar P.S. Case No. 08 of 1995, dated 29.04.1995, under Sections 376/511 of the Indian Penal Code. 4. After investigation, the police submitted charge sheet vide no. 08 of 1995, dated 29.07.1995, under Sections 376/511 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 07.08.1995 and the case has been committed to the Court of Sessions vide order dated 27.06.1996. 6. The charge has been framed on 09.03.1998, against all the accused persons, under Sections 376/511/34 of the Indian Penal Code, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether eight witnesses and has also exhibited two documentary evidences upto exhibit 1/1. 8. Satya Shikshanand Murmu, headmaster of the school, has been examined as P.W. 1, Alfred Hansda has been examined as P.W. 2, Poulina Murmu has been examined as P.W. 3, Babita Baski has been examined as P.W. 4, Anita Pouria has been examined as P.W. 5, Kabita Kumari, a friend of the informant, has been examined as P.W. 6, Aashalata Hansda has been examined as P.W. 7 and Rosemary Murmu has been examined as P.W. 8. F.I.R. has been proved and marked as Exhibit- 1 and the signature of Babita Baski on the fardbeyan has been proved and marked as Exhibit- 1/1. 9. After closure of the prosecution evidence, the statement of the accused/appellants were recorded under Section 313 Cr.P.C. on 11.06.2003, but no oral evidence has been adduced on behalf of the defence, rather they have stated, that they have been falsely implicated in this case and the evidence, which has been brought on record against them, is also not correct. 10. After hearing the parties, the learned Trial Court has passed the impugned judgment of conviction and order of sentence, which has been assailed before this Hon’ble Court, in three separate criminal appeals but one of the appellants Manu Das (in Cr. Appeal (SJ) No. 927 of 2003) has died during pendency of the appeal and as such his criminal appeal has been abated by this Hon’ble Court. 11. Heard, learned counsel for the appellants, Shubham Mishra assisted by Mr. T.K. Mishra, Advocates in Cr. Appeal (SJ) No. 961 of 2003 and Mr. Din Dayal Saha, Advocate in Cr. Appeal (SJ) No. 927 of 2003) has died during pendency of the appeal and as such his criminal appeal has been abated by this Hon’ble Court. 11. Heard, learned counsel for the appellants, Shubham Mishra assisted by Mr. T.K. Mishra, Advocates in Cr. Appeal (SJ) No. 961 of 2003 and Mr. Din Dayal Saha, Advocate in Cr. Appeal (SJ) No. 958 of 2003. Learned counsels for the appellants have submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsels for the appellants have further submitted, that conviction of the appellants under Sections 376/511 of the Indian Penal Code has been wrongly passed by the learned Trial Court, contrary to the material available on record. Learned counsels for the appellants have further submitted, that the trial Court has given a perverse finding, as the evidence of the informant (P.W.4), Babita Baski is contrary to the First Information Report and the evidence of P.W.6, Kabita Kumari is not in consonance with the evidence of P.W. 4 (informant) and as such, the impugned judgment of conviction and order of sentence cannot sustain in the eyes of law. The learned counsels for the appellants have placed a judgment, in order to strengthen their argument, as reported in (2006) 8 SCC 560 [: 2006(4) JLJR (SC) 132] in case of Tarkeshwar Sahu vs. State of Bihar (now Jharkhand) where the Hon’ble Supreme Court has held that “in absence of any attempt to penetrate, conviction under Ss. 376/511 was wholly illegal and unsustainable”. Learned counsels for the appellants have further submitted that, even no case under Section 354 of the Indian Penal Code is made out against the appellants, as per the evidence of P.W. 4, Babita Baski, as she has alleged in the First Information Report, that Pradeep Gon has lifted her in his lap along with bucket having clothes and took her inside the room, the accused persons have tried to tease her but she could manage to flee away from the back door. It has been further submitted by the learned counsel for the appellants, that P.W. 4 Babita Baski has never alleged that, which part of the body has been touched by the accused persons and as such, the conviction of the appellants cannot sustain even under Section 354 of the Indian Penal Code. It has been further submitted by the learned counsel for the appellants, that P.W. 4 Babita Baski has never alleged that, which part of the body has been touched by the accused persons and as such, the conviction of the appellants cannot sustain even under Section 354 of the Indian Penal Code. Learned counsels for the appellants have further submitted, that during examination of the informant, Babita Baski (P.W. 4) in the court, she has given contradictory version that the accused/appellant Pradip Gon has taken her bucket along with clothes to his room, then she went herself to bring her bucket and as such, the learned counsel for the appellants have submitted, that there is vital contradictions in the evidence of the informant, as made in the fardbeyan and also as P.W. 4, while deposing in the court. Learned counsels for the appellants have further submitted, that Kabita Kumari, friend of the informant has been examined as P.W. 6 and has given a different version. She has stated, that the accused persons have caught hold of the informant, Babita Baski, which has not been alleged in the First Information Report nor in the evidence of P.W. 4, by Babita Baski and as such, the evidence of P.W. 4 (Babita Baski) and P.W. 6 (Kabita Kumari) are contradictory to each other. Learned counsels for the appellants have further submitted, that non-examination of the investigating officer has caused serious prejudice to the appellants, as the appellants could not get an opportunity to cross-examine the investigating officer with regard to such vital contradictions in the prosecution case. Learned counsels for the appellants have further submitted, that the appellants have made protest to the informant and other girls, residing in the hostel, not to use the hand pump located in front of the quarter of the appellants and as such to pressurize the appellants, a false case has been instituted and the learned Trial Court without scrutinizing the evidence available on record has convicted the appellants under Sections 376/511 of the Indian Penal Code and as such, the appellant may be acquitted of the charges under Sections 376/511 of the Indian Penal Code by giving benefit of doubt. 12. Heard, learned counsel for the State, Mr. Ram Prakash Singh, Additional Public Prosecutor in both the criminal appeals. 12. Heard, learned counsel for the State, Mr. Ram Prakash Singh, Additional Public Prosecutor in both the criminal appeals. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record and the learned Trial Court has convicted the appellants on well-founded facts available on record. Learned counsel for the State has further submitted, that two tribal girls, who were washing their cloths at the hand-pump situated at a distance of 50 Gz. from the quarter of the appellants outside their hostel, the girls have been teased and thereafter, one of the girl Babita Baski has been lifted by Pradeep Gon and taken inside the room, where Ram Marandi has closed the door from inside and they were attempting to rape her (victim) but fortunately the victim fled away from the back door and saved herself. The information of the occurrence was given to the Headmaster of the School, Satya Shikshanand Murmu (P.W. 1), who was sitting along with Alfred Hansda (P.W. 2) hostel warden, Poulina Murmu (P.W. 3), Anita Pouria (P.W. 5) and Rosemary Murmu (P.W. 8), at that time, when the alleged occurrence took place. They are not eye-witnesses to the occurrence but they are hearsay witnesses. Aashalata Hansda (P.W. 7) has been declared hostile by the prosecution and as such, learned counsel for the State has submitted, that the evidences of P.W. 4 (Babita Baski) and P.W. 6 (Kabita Kumari) are sufficient to convict the appellants under Sections 376/ 511 of the Indian Penal Code. 13. After hearing learned counsel for the appellants, Mr. Shubham Mishra assisted by Mr. T.K. Mishra, Advocates in Cr. Appeal (SJ) No. 961 of 2003 and Mr. Din Dayal Saha, Advocate in Cr. Appeal (SJ) No. 958 of 2003 and learned counsel for the State, Mr. 13. After hearing learned counsel for the appellants, Mr. Shubham Mishra assisted by Mr. T.K. Mishra, Advocates in Cr. Appeal (SJ) No. 961 of 2003 and Mr. Din Dayal Saha, Advocate in Cr. Appeal (SJ) No. 958 of 2003 and learned counsel for the State, Mr. Ram Prakash Singh, Additional Public Prosecutor in both the criminal appeals, from perusal of the F.I.R., framing of charge, eight Prosecution witnesses, Exhibits and statement of the appellants recorded under Section 313 Cr.P.C. This Court has perused the evidence on record, there is a vital contradictions in the evidence of prosecution witnesses, as in the First Information Report, the informant (P.W. 4) has alleged that, she has been lifted by Pradeep Gon and the door was closed by Ram Marandi, from inside, but while deposing as P.W. 4 in the Court, this witness has alleged, that Pradeep Gon has taken her bucket along with clothes and for that, she went herself to the room of the appellants to bring her bucket of clothes and as such, there is a vital contradictions with regard to the manner of occurrence. This Court is of the opinion that non-examination of the investigating officer has caused serious prejudice to the appellants, as the appellants could not get an opportunity to cross-examine the investigating officer to elucidate the facts with regard to such vital contradictions in the prosecution case. This Court is also of the opinion, that there is no evidence of attempt of committing rape has been adduced by the informant/victim Babita Baski. This Court has perused the judgment placed by the learned Counsels for the appellants as reported in (2006) 8 SCC 560 in case of Tarkeshwar Sahu vs. State of Bihar (now Jharkhand)(supra) and from perusal of the said judgment, it appears that in absence of any attempt to penetrate, conviction under Sections 376/511 of the Indian Penal Code cannot sustain in the eyes of law. This Court has also perused the evidence of Kabita Kumari (P.W. 6) and from the evidence of P.W. 6, it appears, that she has exaggerated the prosecution case and has stated much more than what has been stated by victim, Babita Baski (P.W. 4). She went up to saying that the accused caught hold of the hand of Babita Baski (P.W. 4). She went up to saying that the accused caught hold of the hand of Babita Baski (P.W. 4). From perusal of the First Information Report and evidence of P.W. 4, Babita Baski, no such averments have been made by Babita Baski either in the fardbeyan or in her deposition in the Court, rather there is a vital contradiction in the fardbeyan and the deposition of P.W. 4, which has already been discussed above. Under the aforesaid circumstances, benefit of doubt is being extended in favour of the appellants, as the prosecution has not proved the case beyond all reasonable doubts against the appellants, under such heinous crime, where strict proof is required. 14. In the result, the common impugned conviction and order of sentence, both dated 30.06.2003, passed by learned 1st Additional Sessions Judge, Dumka, in Sessions Case No. 141 of 1996, in connection with Gopikandar P.S. Case No. 08 of 1995, consequent to G.R. No. 312 of 1995, in both the present criminal appeals, is hereby set aside and the appellants Pradeep Gon (in Cr. Appeal (SJ) No. 961 of 2003 and Ram Marandi (in Cr. Appeal (SJ) No. 958 of 2003) are acquitted of the charges and conviction under Sections 376/511 of the Indian Penal Code by giving benefit of doubt. 15. The appellants, who are on bail, they are discharged from the liabilities of their bail bonds. 16. Accordingly, both the criminal appeals are allowed. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.