JUDGMENT : The present criminal appeal has been preferred against the judgment of conviction and the order of sentence dated 06.02.2006 passed by the learned Sessions Judge, Hazaribagh in S.T. No. 321/2003 whereby the appellant has been convicted for the offences under Sections 376/511 of IPC and has been sentenced to undergo R.I for 5 years with a fine of Rs.5,000/- and in default of payment of fine, to undergo further S.I for five months. 2. The prosecution case in brief, as stated in the fardbeyan of the informant/victim (Gita Devi) recorded on 09.07.2002, is that she had gone to the clinic of the appellant situated at Village-Sondiha along with her husband Mangru Mahto at about 10 A.M. The appellant called her inside the clinic and her husband was told to stay outside. The appellant told her to take out her dress. Though she restrained, yet the appellant started taking out her ‘Saree’ and ‘Blouse’ and molested her breast. The appellant also took out his ‘Paijama’. When she raised Hulla, her husband rushed inside the room and caught the appellant. Thereafter, several persons gathered there, they assaulted the appellant and took him to the police station. 3. On the basis of the fardbeyan of the informant, the police registered an FIR being Mahuatand P.S. Case No. 22 of 2002 under Sections 376/511 of IPC against the appellant. After investigation, the police submitted the charge sheet on 31.08.2002. The case was committed to the Court of Session for trial. The charge was framed under Sections 376/511 of IPC against the appellant. 4. In order to substantiate the charge against the appellant, the prosecution examined altogether three witnesses. P.W.1 (Kishun Mahto) is a hearsay witness. P.W.2 (Mangru Mahto) is the husband of the informant. P.W.3 (Gita Devi) is the informant/victim. 5. The defence has also examined three witnesses. D.W.1 (Durga Prasad), D.W.2 (Md. Safiullah) and D.W.3 (Israil). 6. The learned Trial Court, after appreciating the evidence of the prosecution witnesses and the materials available on record, convicted the appellant under Sections 376/511 of IPC and sentenced him to undergo R.I for 5 years with a fine of Rs.5,000/- and in default of payment of fine, to undergo further S.I for five months. 7. The learned counsel for the appellant submits that the prosecution has failed to prove the charge under Sections 376/511 of IPC. 7. The learned counsel for the appellant submits that the prosecution has failed to prove the charge under Sections 376/511 of IPC. There is no material on record to suggest that the appellant made an attempt to commit rape upon the informant. The prosecution witnesses are highly interested persons and their evidence was required to be examined very carefully. The testimony of P.W.1 also does not help the prosecution, as he is a hearsay witness. The non-examination of the investigating officer has caused serious prejudice to the defence and as such the benefit of doubt may be given to the appellant. 8. Per-contra, the learned APP submits that the prosecution has sufficiently proved the allegation against the appellant and as such he was rightly convicted by the learned Court below. Merely due to non-examination of the investigating officer, the entire case of the prosecution does not vitiate, if otherwise, the prosecution witnesses have sufficiently proved the prosecution case. It is further submitted that in case of rape, the evidence of the victim is sufficient to punish the accused and the burden of proof lies on the accused to contradict her testimony by adducing sufficient evidence. 9. Heard learned counsel for the parties and perused the materials available on record. 10. To appreciate the contentions of learned counsel for the parties, I have gone through the evidence led by the witnesses in support of their case. P.W.1 has stated that on hearing ‘Hulla’, several persons gathered at the place of occurrence and found the victim in half-naked position. The victim told that the appellant was trying to commit rape on her. Thereafter, the people assaulted him and took him to the police station. During his cross-examination, he deposed that he reached the place of occurrence after the alleged incident had occurred and when the quarrel between the parties was going on. P.W.2 is the husband of the informant. He has stated that he had taken the informant to the clinic of the appellant for her treatment. The appellant called her inside the clinic and closed the shutter. The informant was waiting outside the clinic. After sometime, she started raising ‘Hulla’ and then he entered inside the room through the window and saw that the doctor (the appellant), after removing his dress, was trying to commit rape upon his wife and she was trying to save herself. The appellant called her inside the clinic and closed the shutter. The informant was waiting outside the clinic. After sometime, she started raising ‘Hulla’ and then he entered inside the room through the window and saw that the doctor (the appellant), after removing his dress, was trying to commit rape upon his wife and she was trying to save herself. He caught hold of the doctor and raised ‘Hulla’ and then several persons gathered there. They brought the appellant to the police station and was handed over to the police. During his cross-examination, he deposed that neither the medical check-up of his wife was done nor her clothes were seized by the police. P.W.3 is the informant/victim of the case. She has deposed that she had gone to the clinic of the appellant along with her husband. The appellant took her inside the clinic and closed the shutter and forcibly got her undressed. The appellant removed his ‘Paijama’ and ‘Kurta’ and was trying to catch hold of her with an intention to commit rape upon her. However, she raised ‘Hulla’ and then her husband came inside the clinic through the window. Thereafter, several persons gathered there and they assaulted the appellant. She proved her fardbeyan as Ext.2. She has deposed that she was not medically examined and her clothes were also not seized. 11. D.W.1 has deposed that he knew the appellant for about 2½ years and he had never heard about his bad character. D.W.2 has deposed that he was also present in the clinic at the time of the alleged occurrence. Meanwhile, a lady came there and started abusing the doctor alleging that his medicine did not cure her. He has further deposed that he knew the doctor for about 6-7 years and he had not heard any complain about him as he was a reputed person holding respect in the society. During his cross-examination, he deposed that he has prescriptions regarding the medical treatment of his wife at Ranchi as well as by the accused doctor, but he did not bring the same in the Court. D.W.3 has stated that at the time of the alleged occurrence, several persons were there. He neither heard any kind of misconduct with any lady nor saw the doctor treating the ladies by closing the shutter of the clinic. He has also not heard any complain against the doctor. D.W.3 has stated that at the time of the alleged occurrence, several persons were there. He neither heard any kind of misconduct with any lady nor saw the doctor treating the ladies by closing the shutter of the clinic. He has also not heard any complain against the doctor. During his cross-examination, he deposed that he was given the prescription regarding his treatment of ‘Gastric’, but he did not bring it in the Court. 12. The Hon’ble Supreme Court, in the case of Koppula Venkat Rao Vs. State of A.P, reported in (2004) 3 SCC 602 , has held as under:- “9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word “attempt” is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation. 10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.” 13. In the aforesaid case, it has specifically been held that in order to attract the culpability of the offence under Sections 376/511 of IPC, there must be an intention to commit the offence, then to make preparation and thereafter to make attempt to commit it. Surrounding circumstances many times throw beacon light on that aspect.” 13. In the aforesaid case, it has specifically been held that in order to attract the culpability of the offence under Sections 376/511 of IPC, there must be an intention to commit the offence, then to make preparation and thereafter to make attempt to commit it. An attempt to commit an offence can be said to have begun when the preparations are complete and the culprit commences to do something with an intention of committing the offence. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In order to find an accused guilty of an attempt with intent to commit rape, the Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. 14. In the present case, the prosecution has not examined the investigating officer. It is settled law that even if the investigating officer is not examined, the accused may be convicted, if otherwise the prosecution evidence is sufficient to prove the alleged offence. On careful examination of the evidence of the prosecution witnesses, it appears that only one independent witness has been examined in the present case, who has accepted that he reached there after the alleged occurrence had taken place and whatever he has stated, was told to him by the victim. The victim, on her examination, did not specifically explain as to what extent the appellant proceeded to achieve his intention. She simply stated that the appellant was intending to commit rape on her and with that intention, he was trying to catch hold of her. She has not stated that in spite of her objection, the appellant laid hold of her with an intention of actual consummation. The husband of the victim (P.W.2) has also not specifically stated that when he entered the clinic, what was the position of the appellant and the victim. He simply stated that the appellant was trying to commit rape on the victim. The husband of the victim (P.W.2) has also not specifically stated that when he entered the clinic, what was the position of the appellant and the victim. He simply stated that the appellant was trying to commit rape on the victim. Moreover, P.W.2 was just outside the clinic and after hearing ‘Hulla’, he immediately rushed inside the clinic and caught hold of the appellant. The victim was not medically examined and her clothes were not seized by the investigating officer. The investigating officer was not examined so as to explain as to under what circumstance, he did not send the victim for medical examination and why the clothes of both the victim and the appellant were not seized. 15. In the light of the aforesaid discussion, I am of the considered view that the prosecution has failed to prove the offence of attempt to commit rape upon the appellant. However, from the prosecution evidence including the evidence of the victim, it appears that the appellant forcibly caught hold the victim in order to commit rape on her. He forced the victim to take out her cloths. Thus, there is sufficient evidence that the appellant used criminal force against the victim to outrage her modesty and as such he is liable to be convicted for the offence under Section 354 of IPC. So far as the reliability of the evidence of the defence witnesses is concerned, they have not brought any evidence on record to show that at the relevant point of time they were present at the place of occurrence. Moreover, the statements of D.W.2 and D.W.3 are contradictory to each other as on the one hand, D.W.2 has stated that a lady was abusing the appellant and on the other hand, D.W.3 has stated that he was present at the clinic on 09.07.2002 at about 10.30 A.M and nothing had happened there regarding misconduct with any woman. 16. Under the aforesaid facts and circumstances, the present appeal is party allowed. The appellant is convicted under Section 354 IPC and is sentenced to undergo R.I for two years with a fine of Rs.1,000/- and in default of payment of fine, to undergo further S.I for two months. The period of sentence already undergone by the appellant in the present case shall be set off against the aforesaid sentence awarded by this Court. The period of sentence already undergone by the appellant in the present case shall be set off against the aforesaid sentence awarded by this Court. The bail granted to the appellant vide order dated 18.04.2006 is hereby cancelled and he is directed to surrender before the learned Court below to serve the remaining period of sentence as awarded by this Court.