JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction dated 22.12.2003 and order of sentence, dated 23.12.2003, passed by learned 4th Additional Judicial Commissioner-cum-Spl. Judge No.II, C.B.I. (A.H.D.), Ranchi, in Sessions Trial No. 667 of 1992, whereby the appellant who has been charged under Sections 354 and 376/511 of the Indian Penal Code has been found guilty for the offence committed and punishable under Section 354 and 376/511 of the Indian Penal Code and awarded rigorous imprisonment for one year for the offence committed and punishable under Section 354 of the Indian Penal Code and rigorous imprisonment for two years for the offence committed and punishable under Section 376/511 of the Indian Penal Code. Both the sentences are directed to run concurrently and the period of detention already undergone by the convict shall be set of under Section 428 CrPC. 2. The prosecution case is based upon the written report submitted by the informant Munni Devi (P.W. 4) before the Officer-in-Charge, Chanho Police Station on 05.02.1992 alleging inter alia, that on 04.02.1992, informant along with her sister-in-law went to the forest Taranga at around 2-3 P.M., for collecting wood. It is alleged that while collecting wood, appellant Firoz Mian came and caught hold the arm of informant and started outraging her modesty. It is alleged that informant raised brawl, upon which her mouth was gagged by the appellant but after hearing the brawl raised by the informant, her sister-in-law Gauri Devi, wife of Baijnath Lohra and Kamal Devi, wife of Khudia Mahto came there. The informant saved herself and after seeing these two ladies, the appellant also fled away. 3. On the basis of the written report, police has instituted Chanho P.S. Case No. 12 of 1992 dated 05.09.1992, under Section 354/342/376/511 of the Indian Penal Code against the appellant. 4. After investigation, the police has submitted charge sheet against the appellant vide charge sheet no. 26 of 1992, dated 26.05.1992, against the appellant under Sections 354/ 342/ 376/511 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 04.08.1992 and the case has been committed to the Court of Sessions vide order dated 31.08.1992. 6. 26 of 1992, dated 26.05.1992, against the appellant under Sections 354/ 342/ 376/511 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 04.08.1992 and the case has been committed to the Court of Sessions vide order dated 31.08.1992. 6. The charge has been framed against the appellant under Sections 354 and 376/511 of the Indian Penal Code vide order dated 04.06.1993, to which the appellant has pleaded his innocence and thus, he was put under trial. 7. The prosecution, to prove its case, has examined altogether four witnesses. Bhupnath Lohra, husband of the informant, has been examined as P.W. 1, Mannu Singh, a tendered witness has been examined as P.W. 2, Baijnath Lohra, brother-in-law of the informant has been examined as P.W. 3 and Munni Devi, informant of the case, has been examined as P.W. 4, who has proved her right hand thumb impression on her written report, which has been marked as Exhibit- 1/1. After closure of the prosecution evidence, the statement of the accused /appellant, has been recorded under Section 313 Cr.P.C. on 08.12.2003, to which the appellant has denied about the occurrence and has stated that he has been falsely implicated in this case. 8. After hearing the parties and on perusal of record, the learned Trial Court has passed the impugned judgment of conviction and order of sentence, whereby the learned Trial Court has convicted the appellant for the offence committed and punishable under Sections 354 and 376/511 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has filed the present criminal appeal, before this Court, which was admitted on 07.05.2004 for hearing. 9. Heard, learned Amicus Curiae, Mr. Pawan Kumar Pathak. Learned Amicus Curiae has submitted, that the F.I.R. named witnesses Gauri Devi and Kamal Devi have not been examined in this case nor the investigating officer has been examined in this case and the evidence of the informant, which is the sole evidence available before the learned trial court for conviction of the appellant is not reliable. Learned amicus curiae has further submitted that Bhupnath Lohra, who is the husband of the victim, has been examined as P.W. 1 and he is a hearsay witness. Mannu Singh has been examined as P.W. 2, who has been tendered by the prosecution. Learned amicus curiae has further submitted that Bhupnath Lohra, who is the husband of the victim, has been examined as P.W. 1 and he is a hearsay witness. Mannu Singh has been examined as P.W. 2, who has been tendered by the prosecution. Baijnath Lohra, brother-in-law of the informant is also a hearsay witness and as such, learned trial court without scrutinising the materials available on record, only on the evidence of the sole witness convicted the appellant under Sections 354 and 376/511 of the Indian Penal Code, which is not sustainable in the eyes of law. Learned amicus curiae has further submitted that even the fardbeyan has not been exhibited in this case rather only right hand thumb impression of the informant has been proved and marked as Exhibit-1/1. Learned amicus curiae has further submitted that in view of suggestion given to the informant with respect to animosity, the appellant is entitled for benefit of doubt, under sketchy evidence. Learned Amicus Curiae has placed one judgment as reported in 2006 (8) SCC 560 in the case of Tarkeshwar Sahu versus State of Bihar (Now Jharkhand), 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 Amicus Curiae has further submitted that in absence of examination of Gouri Devi, Kamal Devi and the investigating officer, the appellant cannot be convicted, as no offence has been committed under Section 354 of the Indian Penal Code as no proper opportunity has been provided to the appellant to cross-examine the investigating officer as well as Gouri Devi and Kamal Devi to elucidate the facts with regard to the allegations made in the written report. As such learned Amicus Curiae has submitted that the appellant may be acquitted of the charges by extending benefit of doubt. 10. Heard, learned counsel for the State, Mr. Rajesh Kumar Mishra, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and is based on the material available on record and the learned Trial Court has rightly convicted the appellant under Sections 354 and 376/511 of the Indian Penal Code and as such, the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon'ble Court. 11. Heard, Mr. 11. Heard, Mr. Pawan Kumar Pathak, Amicus Curiae and learned counsel for the State, Mr. Rajesh Kumar Mishra, Additional Public Prosecutor and perused the evidence brought on record i.e. the F.I.R., framing of charge, evidence of four prosecution witnesses, one prosecution exhibit, statement of the appellant recorded under Section 313 Cr.P.C., and the impugned judgment of conviction and order of sentence. From careful perusal of the material on record, it appears that Bhupnath Lohra, husband of the informant and Baijnath Lohra, brother-in-law of the informant, who have been examined as P.W. 1 and P.W. 3 respectively are hearsay witnesses. Mannu Singh has been examined as P.W. 2 and has been tendered by the prosecution. The entire case is based upon the sole testimony of the victim Munni Devi, who has been examined as P.W. 4. This witness has supported the prosecution case and has proved her right hand thumb impression on the fardbeyan, which has been marked as Exhibit-1/1. This witness has stated in her cross-examination that at the time of occurrence her age was about 10-15 years but in the subsequent line she has stated that 10 years prior to the occurrence, her marriage was solemnized and at the time of occurrence, she was aged about 20 years. This witness has futher stated that because of criminal force used by the appellant her bangles have been broken and she has sustained bleeding injury. This witness has further stated that she has sustained injury on her person and has handed over her saree, petticoat and blouse to the police. She has further stated that she has not been examined medically by the doctor. This witness has further stated that she has sustained injury on her person and has handed over her saree, petticoat and blouse to the police. She has further stated that she has not been examined medically by the doctor. Learned Amicus Curiae has rightly placed the judgment of Tarkeshwar Sahu (supra) according to which the appellant cannot be convicted for the offence under Section 376/511 of the Indian Penal Code, as there is no allegation of attempt to penetrate, as held by the Hon'ble Supreme Court and also in absence of examination of Gouri Devi, Kamal Devi and of the investigating officer, the appellant cannot be convicted under Section 354 of the Indian Penal Code, as no offence has been committed under Section 354 of the Indian Penal Code, as no proper opportunity has been provided to the appellant to cross-examine the investigating officer to elucidate the facts with regard to the allegations made in the written report, and no evidence has been brought on record regarding use of criminal force, the bangles of the informant was broken, causing bleeding injury and as such the appellant is entitled for benefit of doubt. Under the aforesaid discussions made above, this Court is of the considered view that conviction of the appellant is not sustainable in the eyes of law, as such the appellant is acquitted of the charge under Sections 354 and 376/511 of the Indian Penal Code. 12. In the result, the impugned judgment of conviction dated 22.12.2002 and order of sentence, dated 23.12.2003, passed by learned 4th Additional Judicial Commissioner-cum-Spl. Judge No. II, C.B.I. (A.H.D.), Ranchi, in Sessions Trial No. 667 of 1992, in connection with Chanho P.S. Case No. 12 of 1992, corresponding to G. R. Case No. 443 of 1992, is hereby set aside and the appellant is acquitted of the charge and conviction under Sections 354 and 376/511 of the Indian Penal Code by giving benefit of doubt. 13. The appellant, who is on bail, is discharged from the liability of his bail bond. 14. Accordingly, the present criminal appeal is allowed. 15. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. 16. 13. The appellant, who is on bail, is discharged from the liability of his bail bond. 14. Accordingly, the present criminal appeal is allowed. 15. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. 16. Before parting with the judgment, Secretary, Jharkhand Legal Services Authority is directed to release the legally admissible remuneration to learned Amicus Curiae for his assistance in disposal of the criminal appeal within four weeks from the date of production of certified copy of the judgment. Appeal allowed