JUDGMENT Kailash Prasad Deo, J. - Heard, learned counsel for the appellant, Mr. Anil Kumar Sinha, assisted by Mr. Pawan Kumar Sinha, Advocates and Mr. Asif Khan, learned Additional Public Prosecutor appearing for the State. 2. The instant criminal appeal is directed against the judgment of conviction and order of sentence, both dated 26.05.2004, passed by learned Additional District & Sessions Judge, Fast Track Court, Koderma, in Sessions Trial No. 502 of 1999, whereby the sole appellant has been convicted for the offence committed and punishable under Sections 448 and 376/511 of the Indian Penal Code and awarded rigorous imprisonment for one year for the offence committed and punishable under Section 448 of the Indian Penal Code and awarded rigorous imprisonment for five years with a fine of Rs. 1000/- for the offence committed and punishable under Sections 376/511 of the Indian Penal Code and in default of payment of fine the appellant has to undergo, further simple imprisonment for one year. All the sentences are directed to run concurrently. 3. The prosecution case is based upon the written report submitted by Urmila Devi, P.W.-1, before the Officer-in-charge, Satgawan police station, on 18.12.1998, alleging therein, that in the night of 17.12.1998 (Thursday), the informant was sleeping in her room after taking dinner along with her children. The door was closed from inside as the door was not properly closed and could be opened by push from outside. Informant has further alleged that at around 12:00 night the Vijay Sao, Son of Geeta Lal Sao entered into her room with bad intention to commit rape upon her and caught her body. On brawl raised by informant co-villagers namely Bhagirath Choudhary, Arjun Choudhary, Chottan Choudhary, Shyamlal Choudhary, Meghan Choudhary and Sato Choudhary came at the place of occurrence and they saved the informant. The informant has further alleged that after seeing the villagers coming there, the appellant, Vijay Sao fled away. 4. On the basis of written report in which the informant has put her right hand thumb impression, the police registered Stagawan P.S. Case No.42 of 1998, dated 18.12.1998, under Sections 448/376/511 of the Indian Penal Code against the appellant, Vijay Sao. 5. After investigation, the police submitted charge sheet vide charge sheet no.05 of 1999, dated 31.01.1999, under Sections 448/376/511 of the Indian Penal Code against appellant. 6. 5. After investigation, the police submitted charge sheet vide charge sheet no.05 of 1999, dated 31.01.1999, under Sections 448/376/511 of the Indian Penal Code against appellant. 6. The cognizance of the offence has been taken vide order dated 09.2.1999 and the case has been committed to the court of sessions vide order dated 22.09.1999. 7. The charge has been framed against the sole appellant under Sections 448 and 376/511 of the Indian Penal Code, on 12.10.2001, to which the accused has pleaded his innocence and thus, he was put under trial. 8. The prosecution, has examined altogether eight witnesses to prove the case beyond all reasonable doubt. Urmila Devi, informant and victim, has been examined as P.W.-1 but she has been declared hostile by the prosecution, Bhagirath Choudhary, has been examined as P.W.-2, Meghan Choudhary, has been examined as P.W.- 3, Chhottan Choudhary, has been examined as P.W.-4, Arjun Choudhary, has been examined as P.W.-5, Shyamlal Choudhary, has been examined as P.W.-6, is hearsay witness, Sudama Devi, examined as P.W.-7 and Sato Choudhary, examined as P.W.-8, both have been declared hostile by the prosecution. The prosecution has not brought any documentary evidence on record. 9. After closure of the prosecution evidence, the statement of the sole appellant has been recorded under section 313 Cr.P.C., on 12.05.2004, to which the appellant has denied the evidence leveled against him and stated that he is innocent and has been falsely implicated in this case. 10. After hearing, learned counsel for the parties, and on the basis of material available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant, Vijay Sao. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal, assailing the impugned judgment of conviction and order of sentence, which is being heard by this Hon''ble Court. 11. Heard, learned counsel for the appellant Mr. Anil Kumar Sinha, assisted by Mr. Pawan Kumar Sinha, Advocates. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that the informant has not supported the case, as such she has been declared hostile by the prosecution. Pawan Kumar Sinha, Advocates. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that the informant has not supported the case, as such she has been declared hostile by the prosecution. Learned counsel for the appellant has further submitted, that the witnesses named in the first information report, such as Bhagirath Choudhary, Meghan Choudhary, Chhottan Choudhary and Arjun Choudhary, who have been examined in this case as P.W.-2, P.W.-3, P.W.-4 and P.W.-5 respectively, have also not stated anything against the appellant, rather Bhagirath Choudhary in paragraph 3 of his crossexamination, Meghan Choudhary in paragraph 4 of his cross-examination, Chottan Choudhary in paragraph 2 and 3 of his cross-examination and Arjun Choudhary in paragraph 2 of his cross-examination have admitted that on brawl raised by the informant they came near the house of the informant but they have not seen Vijay Sao at the place of occurrence or in the house of the informant, as such there is no material against the appellant that the appellant had either entered into the house of the informant or had tried to commit sexual offence with the informant. Learned counsel for the appellant has relied upon a judgment in the case of Tarkeshwar Sahu versus State of Bihar (Now Jharkhand) reported in , (2006) 8 SCC 560 wherein it has been held that in absence of any attempt to penetrate, conviction under Sections 376/511 is wholly illegal and unsustainable in the eyes of law. Learned counsel for the appellant has further submitted, that neither the investigating officer nor the doctor have been examined in this case and no any documentary material has been brought on record, which could have been proved and marked as exhibit in this case. Learned counsel for the appellant has further submitted that Shyamlal Choudhary, examined as P.W.-6 is a hearsay witness and Sudama Devi, examined as P.W.-7 and Sato Choudhary, examined as P.W.-8, have been declared hostile by the prosecution. Learned counsel for the appellant has thus submitted, that the appellant may be acquitted of the charge and conviction under Sections 448 and 376/511 of the Indian Penal Code as there is no legal material against the appellant. Learned counsel for the appellant has thus submitted, that the appellant may be acquitted of the charge and conviction under Sections 448 and 376/511 of the Indian Penal Code as there is no legal material against the appellant. Learned counsel for the appellant has further submitted, that P.W.-1, Urmila Devi, informant and victim of this case, has been declared hostile by the prosecution and during cross-examination victim-cum-informant has categorically stated that nothing has been done by Vijay Sao, rather on the inducement by the villagers, the informant came to the police station and without knowing the contents of the application, she has put her right thumb impression over the paper. 12. Heard, Mr. Asif Khan, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on material available on record and learned trial court has rightly passed the impugned judgment of conviction and order of sentence against the appellant under Sections 448 and 376/511 of the Indian Penal Code. Learned counsel for the State has further submitted, that the informant has categorically taken the name of this appellant in the written report filed before the police, which is the basis of the institution of the present case. It has been categorically stated, in the written report that after pushing the door, appellant entered into the house of informant and tried to caught hold of her with bad intention and as such, the learned trial court has rightly convicted appellant under Sections 448 and 376/511 of the Indian Penal Code. 13. Heard, learned counsel for the appellant Mr. Anil Kumar Sinha, assisted by Mr. Pawan Kumar Sinha, Advocates and Mr. Asif Khan, Additional Public Prosecutor, appearing for the State and perused the record i.e. First Information Report, framing of charge, the evidence of eight prosecution witnesses, the statement of the appellant recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. This court has scrutinized the evidence of prosecution witnesses and found that nothing has been exhibited by the prosecution in this case and the prosecution witnesses have not supported the case of the prosecution. This court has scrutinized the evidence of prosecution witnesses and found that nothing has been exhibited by the prosecution in this case and the prosecution witnesses have not supported the case of the prosecution. P.W.-1, Urmila Devi, being informant and victim of the case, has been declared hostile by the prosecution and she has categorically stated during her cross-examination that on the inducement of the co-villagers, she went to the police station and put her right thumb impression on application, without knowing the contents of the application. P.W.-2, Bhagirath Choudhary, P.W.--3, Meghan Choudhary, P.W.-4 Chottan Choudhary and P.W.-5, Arjun Choudhary, who are named as witnesses in the first information report have stated that on brawl they came to the house of the informant and have categorically stated during their cross-examination that they have not seen Vijay Sao in the house of the informant or fleeing away from the place of occurrence, rather they have only supported the prosecution case to the extent that, on brawl raised by the informant, they went to the house of the informant, where the informant has disclosed that Vijay Sao has tried to commit rape upon her after entering into her house although informant has not supported her case and declared hostile by the prosecution. Furthermore, P.W.-6, Shyamlal Choudhary is a hearsay witness and this witness has also not seen Vijay Sao at the house of informant. P.W.-7, Sudama Devi and P.W.-8 Sato Choudhary, have been declared hostile by the prosecution. This Court has examined the provisions as contained under Section 448 of the Indian Penal Code which contains provision regarding punishment for house trespass, which reads as follow: "448. Punishment for house-tresspass.- whoever commits house trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both." The house trespass has been defined under Section 442 of the Indian Penal Code which reads as follows: 442. House-tresspass.- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house trespass". House-tresspass.- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house trespass". This Court has perused the evidence of the prosecution witnesses and found that none of the prosecution witnesses have seen the appellant in the house of the informant or fleeing away from house of the informant. Informant, Urmila Devi has also not supported her case during her deposition in the court as P.W.-1 and thus she has been declared hostile by the prosecution. Urmila Devi has categorically stated during her crossexamination that on the inducement by the co-villagers, she went to the police station and without knowing the contents of the application, she has put her right thumb impression over the same, as such there is no legal material against the appellant, so far offence under Section 448 of the Indian Penal Code, is concerned. This Court has also perused the judgment of Tarkeshwar Sahu versus State of Bihar (Now Jharkhand) . It is apparent that neither in the first information report nor in the evidence of any of the prosecution witnesses, there is any allegation that the appellant was trying to penetrate and thus, in absence of such evidence the appellant cannot be convicted for offence committed and punishable under Section 376/511 of the Indian Penal Code, in view of the above judgment. 14. In the result, as discussed above the appellant is acquitted of the charge and conviction under Sections 448 and 376/511 of the Indian Penal Code by setting aside the judgment of conviction and order of sentence both dated 26.05.2004, passed by learned Additional District & Sessions Judge, Fast Track Court, Koderma in Sessions Trial No.502 of 1999. 15. The appellant, who is on bail, is discharged from liability of his bail bonds. 16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.