JUDGMENT Jay Sengupta, J. - This appeal is directed against the judgment and order of conviction and sentence dated 03.12.2016 passed by the learned Additional Sessions Judge, Uluberia, Howrah in Sessions Trial No.35 of 2013, thereby convicting the appellant under Section 354 of the Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/-, in default to suffer simple imprisonment for two years more. 2. Pursuant to an application filed by the de facto complainant / P.W.1 under Section 156 (3) of the Code filed on 23.6.2012, a First Information Report was registered on 26.09.2012 against the accused/appellant and another under Sections 324, 325, 341, 376, 379 read with Sections 511 and Section 34 of the Penal Code. It was alleged by the informant that on 8.4.2012 at about 9 p.m. when the informant was serving food to her cattle, the appellant, finding her alone, undressed her and gagged her mouth, threw her on the floor and tried to ravish her. After trying heard, the victim/informant could somehow extricate herself from the clutches of the appellant and fled away. On the next morning i.e., on 9.4.2012 this news spread amongst the neighbours. Consequently, the appellant attacked the informant's house and thrashed her with fists, blows and kicks. He even took away the earring of the victim that had fallen off in the process. The accused/appellant then gave the earring to the accused no.2. After getting information about the altercation, the petitioner's brother P.W. 4 came. But, the accused surrounded them with axes in their hands. The accused no.2 injured the hand of the informant/brother in the process. As a result of the damage caused by the accused, the informant suffered a loss of about Rs. 15,000/-. Earlier also the accused no.1, who happened to the informant's brother-in-law, gave her indecent proposal. He tortured her on several occasions. The police did not take any steps. The informant was constrained to approach a Court of law. 3. After completion of the investigation, a charge sheet was submitted against the present appellant on 23.07.2014. Charges were framed under sections 325, 376 read with sections 511 and 34 of the Penal Code. The appellant claimed to be innocent and the trial began. 4. During trial the prosecution examined as many as eight witnesses. 5. 3. After completion of the investigation, a charge sheet was submitted against the present appellant on 23.07.2014. Charges were framed under sections 325, 376 read with sections 511 and 34 of the Penal Code. The appellant claimed to be innocent and the trial began. 4. During trial the prosecution examined as many as eight witnesses. 5. From a careful perusal of the evidence on record, it appears that PW1 was the victim and the de facto complainant in this case. The appellant was her brother-in-law. She deposed that on 08.04.2012 at night the appellant tried to rape her in a cowshed. She somehow rescued herself and fled away and then told her mother-in-law and her husband about the incident. Her husband told her not to disclose the facts to others for the prestige of the family. In the meantime, this news spread and the neighbours informed about the incident to the victim's brother. The victim's brother (PW 4) tried to take her to a hospital on the next morning, but the victim's mother-in-law bit his finger in order to prevent them from going to the hospital. A statement of the victim was recorder under section 164 of the Code. The victim identified the appellant in the dock. In her cross-examination, PW1 admitted that prior to the incident she had filed several cases against the appellant and her other in-laws. After filing of a case against the husband, there was, in fact, good relation between her husband and herself. At the time of deposing in Court, PW 1 was staying with her husband and children. PW 2 was a neighbour of the victim. He claimed to be an eye-witness to the incident that happened on the next day i.e., on 09.04.2012. He and others rescued the informant and the victim from the assault by the accused. The appellant bit the finger of the victim. Reference to the previous nights' account as given by PW2 was hearsay in nature. PW3 was another neighbour of the victim who gave out similar evidence as PW2. PW4 was the brother of the victim who had come to her on the next day. He was told about the incident of the last night. He directly supported the contentions of the victim so far as the incidents of the second day were concerned. PW5 was another neighbour of the victim. PW4 was the brother of the victim who had come to her on the next day. He was told about the incident of the last night. He directly supported the contentions of the victim so far as the incidents of the second day were concerned. PW5 was another neighbour of the victim. He deposed that the appellant used to assault the victim quite often. On the last day there was a 'marpit' between the two. The victim's earring was taken away by the appellant and in the process the victim fractured her hand. PW 6 was the police officer who recorded the First Information Report. PW7 was a neighbour of the victim. He was a Panchayat member. He deposed that during the assault the victim's earring was taken away by the appellant. He claimed to be an eye- witness to the incident that took place on 09.04.2012. Earlier, quarrels used to take place between the parties. PW 8 was the Investigating Officer of the case. In his cross-examination, he admitted that PW 7 did not tell him that he witnessed the incident. During the examination of the case under section 313 of the Code, the accused/appellant denied all the allegations made against him. 6. Mr. Ashis Sanyal, learned senior counsel appearing on behalf of the appellant, submitted as follows. The appellant was convicted for a lesser charge of section 354 of the Code than the charge under section 376 read with section 511 of the Penal Code without there being any alteration of the charge. Although, it was the case of the informant that the neighbours were told about the incident of alleged attempt to rape, yet the application under section 156(3) of the Code was lodged after about 106 days from the date of the incident. The immediate neighbours were not examined. It has come out in evidence that there were quarrels and disputes between two sides and the victim had earlier lodged several cases against the appellant and other in-laws. PWs 2 and 3 only give out hearsay accounts. PW 4, a brother of the victim, did not mention the incident of 08.04.2012. PW 5, a neighbour who stated only about 'marpit' and removal of earring was not declared hostile. From the cross-examination of PW 7, it appears that he was interrogated by police 3 to 4 days after the incident. PW 4, a brother of the victim, did not mention the incident of 08.04.2012. PW 5, a neighbour who stated only about 'marpit' and removal of earring was not declared hostile. From the cross-examination of PW 7, it appears that he was interrogated by police 3 to 4 days after the incident. This is inconsistent with the factum of filing of the application under section 156(3) of the Code after about 106 days from the date of incident. The general diary entry mentioned in the complaint was not exhibited. Incidentally, the Investigating Officer of the case could not be examined as he had passed away in the meantime. The Learned Magistrate who recorded the statement under section 164 of the Code was also not examined during trial. The appellant was in custody for about 70 days. The prosecution case suffered from inherent lacuna in view of the numerous contradictions in the evidence of witnesses and the prior animosity between the parties. The appellant was entitled to an acquittal in this case. 7. Mr. Swapan Banerjee, learned counsel appearing on behalf of the State, submitted as follows. A prima facie case was clearly made out against the appellant as would be evident from the First Information Report, supported by the statement of the victim under section 164 of the Code and the evidence adduced by PW1, the victim in Court. The victim had vividly narrated the facts whenever she got an opportunity to do so. PW 7 claimed to be an eye-witness to the incident although there might be some doubt regarding the reference to the incident of 08.04.2012 or 09.04.2012. Reliance was also placed on the evidence of PWs 3 and 4. The prosecution was able to prove its case beyond reasonable doubt. 8. I heard the submissions of the learned counsels appearing on behalf of the appellant and the State and perused the evidence adduced in the case and the other materials on record. 9. First, I do not find any technical defect in convicting an accused of a lesser offence without altering the charge, which was framed for a higher offence. 10. Secondly, it is true that a prompt lodging of First Information Report cannot always be expected in cases of offences under Sections 376 or 354 of the Penal Code, especially when the alleged offence takes place in a remote village. 10. Secondly, it is true that a prompt lodging of First Information Report cannot always be expected in cases of offences under Sections 376 or 354 of the Penal Code, especially when the alleged offence takes place in a remote village. However, in the present case admittedly the information about the offence allegedly committed in the night of 08.04.2012 became known to the villagers as the news of it had spread by then, as per the evidence of the victim as well as other witnesses. On this backdrop, a delay of about 106 days in filing an application under Section 156(3) of the Code by the purported victim evokes a suspicion. 11. The appellant was the brother-in-law of the victim PW 1. It has come out in evidence, as adduced by PW 1 herself, that she had lodged numerous cases against her husband and other in-laws. In fact, as per her deposition, the relationship between the husband and wife became better after the lodging of a complaint against the husband. Therefore, admittedly there was an animus between the victim and the accused/appellant. As such, the evidence and the other materials on record and the attending circumstances have to be assayed in the light of such previous animosity. 12. The de facto complainant/victim alleged that previously also the accused/appellant had given indecent proposals and sexually harassed her. However, although there is a mention about lodging of other cases against the inlaws, the informant could not bring out any material to show that she had earlier told others or filed complaints in respect of such alleged previous sexual misconduct by the accused/appellant. 13. The allegations made in the present case broadly comprise of two parts. First, in the night of 08.04.2012 the appellant tried to ravish the informant finding her alone in a cowshed. No independent witness was available to support such claim with a post-occurrence account although the victim alleged that she had cried out and thereafter somehow could extricate herself from the clutches of the appellant. Unlike in her evidence, the victim stated under Section 164 of the Code that immediately after the incident, some in-laws and even a few neighbours came to the spot. The next incident allegedly took place in the morning of 09.04.2012. There are a few witnesses available for this incident although some of such evidence was hearsay in nature. Unlike in her evidence, the victim stated under Section 164 of the Code that immediately after the incident, some in-laws and even a few neighbours came to the spot. The next incident allegedly took place in the morning of 09.04.2012. There are a few witnesses available for this incident although some of such evidence was hearsay in nature. The independent witnesses did hint at a scuffle that took place between the parties. PW 7, an eye- witness for the next day's incident, who was not declared hostile, clearly stated that there was a 'marpit' between the parties. As a result, the victim's earring had fallen off. The witnesses also deposed about previous enmity between the parties. Moreover, there is another divergence between the statement and the evidence of the victim. While in her statement under Section 164 of the Code, the victim stated that the appellant bit her brother's finger, in her evidence she stated that the appellant's mother did so. 14. Taking into consideration all the different aspects including the evidence of independent witnesses vis- -vis' the deposition of the victim lady and her relatives, it appears that in the morning of 09.04.2012 indeed there was an altercation and scuffle between the parties. However, even from such altercation one does not get any clue about what happened on the previous night. PW 7 was not declared hostile. It does not appear that the incident of 09.04.2012 throws any light on the incident of 08.04.2012. 15. The evidence adduced by the victim PW 1 as regards the incidents of 08.04.2012 is not quite convincing, especially when juxtaposed with the previous animosity between the parties and the inordinate delay in lodging of the First Information Report. Moreover, the evidence suffers from some contradictions vis- -vis' her previous statement recorded by a Learned Magistrate. 16. In view of the above discussions, I am of the view that prosecution has not been able to prove its case against the accused/appellant beyond reasonable doubt and as such, the appellant is entitled to a benefit of doubt. 17. Accordingly, I allow the appeal and set aside the impugned judgment and order of conviction and sentence. 18. The appellant is discharged from the bail bonds. 19. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action. 17. Accordingly, I allow the appeal and set aside the impugned judgment and order of conviction and sentence. 18. The appellant is discharged from the bail bonds. 19. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action. 20. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.