JUDGMENT & ORDER : 1. Heard Mr. A. K. Gupta, learned Amicus Curiae appearing for the appellant and also heard Mr. D. Das, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. 2. The informant Ranju Devi lodged an ejahar/FIR before the I/c, Namtola P.S. alleging inter alia that on 18.05.2012 at about 4.00 P.M., sister of accused namely Jyoti called her daughter/victim to play carom with her. After sometime Jyoti left the place to go toilet and the accused, who was sleeping at that time woke up and tried to rape her daughter by removing her apparels. The accused had caused scratched injuries on the neck of the victim. 3. On receipt of the aforesaid FIR on 19.05.2012, by the In-charge, it was registered as Namtola P.S. Case No.21/2012 under Section376/511 of IPC. 4. During the course of investigation, the victim girl was medically examined by the doctor. The statement of the victim girl was recorded under Section 164 of CrPC as well as the statements of the other witnesses were also recorded u/s 161 of CrPC. The Police on completion of investigation filed charge-sheet in the against the accused, Gautam Gayari under Section 376/511 of vide Sessions Case No. 115(S-C)/2012 arising out of G.R. Case No.259/2012. 5. The learned Sub-Divisional Judicial Magistrate, Charideo, committed the case to the learned Court of Sessions, Charideo for trial. 6. The learned Court below considered the records and the documents therewith. Accordingly, the charges were framed against the accused under Section 376/511 of IPC to which, the accused pleaded not guilty and instead face the trial. 7. In course of the trial, prosecution examined as many as 4(four) witnesses including the victim, mother of victim/informant of the case, the Medical Officer and the I.O, whereas the defence had declined to adduce evidence on it part. On completion of prosecution evidence, statement of the accused was recorded u/s. 313 of CrPC, wherein the accused had thwarted all incriminating evidence that has been thrust against him. 8. At the conclusion of the trial, the learned Court finds and hold the accused guilty u/s. 376(2)(f)/511 of IPC and convicted the accused person Gautam Gayari under section 376(2))f)/511 of IPC and sentencing him to rigorous imprisonment for 10(ten) years and also to pay a fine of Rs.50,000/-(Rupees Fifty thousand), in-default of payment of fine, to suffer further R/I for 6(six) months. 9. 9. That apart, the learned Court directed to award compensation to the victim girl to be paid by the Secretary District Legal Service Authority, Jorhat. The said amount shall be used by the mother of the victim for her welfare and rehabilitation of the child. 10. As against the aforesaid order of conviction the present appeal has been preferred by the accused from the jail. 11. The learned Amicus Curiae Mr. AK Gupta submitted that that the testimony of the victim cannot be wholly relied to rest the conviction as no independent eye witness has been examined despite the fact that some other person was present at the place of occurrence. Moreover, the victim girl was not under 12 years of age at the time of occurrence hence the evidence falls short to prove the offence u/s 376(2)(f)/ 511 of the IPC; rather, the other offence u/s 354 of the IPC may be attracted. 12. On the other hand, according to the learned Addl. P.P. there is no infirmity in the aforesaid order and conviction and there is no reason to disbelieve the evidence of victim. No any interference in the impugned judgment and order and is called for. Let us examine the evidence on records which is as follows. 13. The victim girl/P.W-3 (name withheld) has stated she was studying in Class-VIII and her dated of birth was 24.12.1999. The incident occurred in the month of May, 2012 at about 4.00 PM. The sister of the accused namely, Jyoti called her to play carom with her. After playing carom, Jyoti went to toilet. While she was waiting for Jyoti to return at that time a boy namely Panku was with her. The accused was sleeping at that time and after he woke up, he came near to her and tore up her apparels and had also scratched her and thereafter tried to rape her. So, she raised alarm and hearing her hue and cry one Kalpana Devi came to the spot and on seeing her, the accused fled away from the spot. She informed the incident to Kalpana and subsequently to her mother. She was medically examined by a doctor and her statement was also recorded by the learned Magistrate vide Ext.-3. In cross-examination, the P.W-3/victim has stated that she used to go the house of Jyoti now and then. She informed the incident to Kalpana and subsequently to her mother. She was medically examined by a doctor and her statement was also recorded by the learned Magistrate vide Ext.-3. In cross-examination, the P.W-3/victim has stated that she used to go the house of Jyoti now and then. When they were playing carom inside the house, the accused was sleeping outside. There were some houses situated near the PO. Kalpana was the immediate neighbour of the accused. When the accused had disrobed her, at that moment Kalpana came to the spot and she put her apparels at the same moment. She sustained injuries on her hand as well as her chest(breast). She ran out from the PO after Kalpana arrived there. The accused had chased her but could not grab her. 14. The mother of the victim/ the informant, P.W-2/Ranju Devi has stated that incident took place in the month of May, 2012 at about 4.00 P.M., sister of the accused namely, Jyoti called her daughter/victim to play carom with her. After sometime Jyoti left for toilet and the accused, who was sleeping at that time woke up and tried to rape her daughter by removing her apparels. As she raised alarm, one Kalpana Halwai came to the spot and saved her daughter from the clutches of the accused. The accused had caused scratched injuries on the neck of her daughter. The informant had also narrated the incident to the Gaon Bura and his son namely, Krishna wrote an Ejahar/FIR as per her narrations and subsequently, she lodged ejahar/FIR against the accused person, which is exhibited as Ext.-2. Her daughter was medically examined by a doctor and her statement was recorded by the learned Magistrate. In cross-examination, P.W-2 has stated that just before the incident Jyoti and her daughter was at the PO. She did not witness the incident. But she was intimated about the incident by the victim herself. 15. The medical Officer Dr. Digant Chetia/P.W-1 examined the victim girl on 20.05.2012 at around 11.15 AM in the presence of his Staff. He has opined that four signs of abrasion were found on anterior chest 4 in number and left breast 2 in number, all are about 1 x 1 cm in size and 36 to 48 hours old. The Medico legal report is exhibited as Ext.-1. 16. He has opined that four signs of abrasion were found on anterior chest 4 in number and left breast 2 in number, all are about 1 x 1 cm in size and 36 to 48 hours old. The Medico legal report is exhibited as Ext.-1. 16. Lastly the Investigating Officer Pinaki Chakravorty/P.W-4 has narrated all about the course of investigation that he was serving as O/c at Namtola P.S. on 19.05.2012, after receiving ejahar/FIR, he went to the PO which was a rented house of the accused. The victim girl was sent to the doctor for medico legal check-up. He produced the informant and victim girl before the Magistrate. And their statements were recorded u/s 164 CrPC. It is also stated that he prepared the Sketch Map vide Ext.-4, wherein Ext.-6 [1] is his signature. After investigation, he submitted charge-sheet against the accused person u/s 376/511 of IPC which is exhibited as vide Ext.-5. 17. The learned trial Court, on the basis of the above evidences hold that the victim girl was minor and concluded that the prosecution has been able to prove the offence u/s 376 (2) (f)/511 IPC and convicted the accused as aforesaid. 18. I have given due consideration to the rival submissions and perused the evidence on record. So far as the evidence of the victim girl is concerned it is to be noted that the victim as well as her mother has specifically stated that the age of the victim is 13 years at the time of occurrence which is also supported by the medical evidence. Although the IO has not examined all the relevant witnesses who happened to be present at the place of occurrence, but for the lapse of the investigating authority the evidence of the victim girl who is a minor having no hostility for false implication of the accused cannot be discarded. The testimony of the victim is corroborated all throughout the trial u/s 161 and 164 of the CrPC supported by the other witness. The evidence of PW-2 clearly indicates that it was the sister of the accused who took her daughter to the house of the accused and subsequently her daughter returned from their house making hue and cry and reported the incident and the fact that the victim sustained some sort of injury on her person. The evidence of PW-2 clearly indicates that it was the sister of the accused who took her daughter to the house of the accused and subsequently her daughter returned from their house making hue and cry and reported the incident and the fact that the victim sustained some sort of injury on her person. The medical evidence is supported the factum of injury sustained by the victim girl in her chest and breast, totalling six injuries. 19. The victim girl has disclosed that the accused tore apart her clothes and scratched her and tried to rape her and as she fully resisted him and another woman arrived, the accused could not succeed in his attempt. Although the said woman, Kalpana Devi (was charge sheeted as a witness), who arrived at the spot was not examined by the prosecution but for the said reason the testimony of the victim cannot be thwarted. 20. Learned amicus curiae, relying on a decision in (2014) 4 GLR 187, Chandan Das vs. State of Assam and (2004) STPL 3219 SC, Aman Kumar and another Vs. State of Haryana, submitted that in the given case conviction at best can be made u/s 354 of the IPC as offence of attempt to commit rape not made out. 21. On the other hand, learned additional public prosecutor vehemently object to the submissions that the findings of the medical officer coupled with the testimony of the victim clearly indicates that it was an attempt to commit the offence of rape. 22. On due consideration of the material on record it is to be noted that the conduct of the appellant will come within the purview of attempt. Had the other woman not appeared in time, the accused would have succeeded in committing the offence. 23. The victim in her evidence she admitted that her date of birth is 24.12.1999 and the same is also endorsed by her mother and admittedly she was more than 12 years at the time of occurrence. It is stated by the learned Amicus Curiae that the accused is behind the bar since more than 3 & ½ years since 9.9.2014 till date and on earlier occasion also he remained certain periods behind the bar for his default. And accordingly prayed to consider the aforesaid period of long detention while awarding punishment. 24. It is stated by the learned Amicus Curiae that the accused is behind the bar since more than 3 & ½ years since 9.9.2014 till date and on earlier occasion also he remained certain periods behind the bar for his default. And accordingly prayed to consider the aforesaid period of long detention while awarding punishment. 24. Now in the instant case the occurrence is of 18.5.2012 which is prior to the amendment of the Code of Criminal Procedure on 3.2.2013. At that point of time the offence u/s 376 of the IPC was punishable for a term which shall not be less than 7 years but may extend to life or for a term which may extend to 10 years. On the next, as per the said earlier provision section 376(2)(f) means a woman under 12 years of age but in the present case the age of the victim is admittedly 13 years that indicates she is not below 12 years of age at the time of occurrence so the said provision will not be attracted in the present case. 25. Having regard to the matters on record and the age of the accused/appellant who was around 22 years of age, at the time of occurrence, the conviction is modified to section 376 (1) IPC (prior to amendment) and considering his long detention he is sentenced to the period already undergone by him and amount of fine is reduced to Rs. 10,000/- in default R/I for 2 months. 26. The appeal stands disposed of with the modification as indicated above. Return the LCR. 27. For the assistance rendered by the learned amicus curiae, a sum of Rs 7,500/- (Rupees seven thousand, and five hundred) be paid to Mr. A. K. Gupta, Amicus Curiae by the State Legal Services Authority.