JUDGMENT : KUMAR SRIVASTAVA JUDGEMENT, J. 1. Present appeal has been filed for setting aside the judgment of conviction and order of sentence dated 26.09.2006 and 27.09.2006 respectively passed by learned Additional Sessions Judge-FTC, Koderma in Sessions Trial No.405 of 1997 arising out of Jainagar P.S. Case No.18 of 1997 (G.R. No.16 of 1997) whereby and whereunder, the appellant has been held guilty for the offence under sections 376 r/w 511 of Indian Penal Code and sentenced to undergo R.I. of 5 years. FACTUAL MATRIX 2. Factual matrix giving rise to this appeal is that on 04.04.1997 at about 8:30 P.M., the informant-victim went out from her house to fetch water from the government hand pump and after taking water, as the victim set to return back to her house, the accused Kallu Mian uplifted her from behind. Upon raising alarm, other co-accused Faguni Mian gagged her mouth while the accused Minhaj Mian was watching the movement of villagers. In course of uplifting the victim, the bucket fell down from her hand, then hearing the sound of falling bucket, father of victim came out from the house and started shouting calling who is there, meanwhile, all accused persons took the victim in the field and laid down her on earth and lifted her saree with intention to commit rape, in the meantime, her father reached at the place of occurrence and raised alarm, on which all the accused persons fled away. 3. On the basis of above information, FIR being Jainagar P.S. Case No.18 of 1997 was registered for the offence under sections 376/511 r/w Section 34 of IPC . After completion of investigation, charge-sheet was submitted against the appellants. After taking cognizance, the case was committed to the court of Sessions, where S.T. Case No.405 of 1997 was registered. The trial was proceeded against the present appellants. They denied from the charges and claimed for trial. In the course of trial, altogether 8 witnesses were examined by the prosecution including the victim lady. No documentary evidence has been adduced on behalf of the prosecution. 4. On the other hand, the defence has also examined D.W. 1 Raj Kumar Singh and D.W. 2 Abdul Hakim. However, no documentary evidence has been adduced by the defence. The specific plea of defence is denial from occurrence and false implication due to previous enmity regarding cutting of tree. 5. 4. On the other hand, the defence has also examined D.W. 1 Raj Kumar Singh and D.W. 2 Abdul Hakim. However, no documentary evidence has been adduced by the defence. The specific plea of defence is denial from occurrence and false implication due to previous enmity regarding cutting of tree. 5. Learned trial court after appreciation of oral evidence adduced by the parties has held the appellants guilty for the offence under sections 376 r/w 511 of IPC and sentenced as stated above, which has been assailed in this appeal. 6. Learned counsel for the appellants has submitted that the learned trial court has failed to properly appreciate the evidence of the witnesses rather convicted the appellants on hypothetical grounds. Learned trial court has failed to consider that the victim girl herself was a married lady and the accused persons are close door neighbours having their own property adjacent to the house of the informant. Admittedly, it was dark night as time was 8:30 P.M., the victim girl has clearly admitted that she was not acquainted with any of the accused persons prior to the incident. Therefore, she was not able to identify the accused persons behind the dock. The father of the victim has also claimed that it was a dark night and after hearing the sound of fall of bucket, he went towards the field and saw from a distance of 15 meters that the accused persons were fleeing away. The source of identification of the accused persons is not convincing and reliable. This witness also admits that there was previous enmity with the accused persons for a tree. Therefore, the entire prosecution story is out and out a false and manipulated incident. Other witnesses examined in this case as well as the defence witnesses have also proved that no such type of occurrence has taken place on the relevant date and time rather the appellants have been falsely implicated in this case due to previous enmity between the informant’s father and the accused persons. The victim was forcibly laid on earth but no injury was found on her body and there is no medical corroboration of the prosecution story. Therefore, the impugned judgment and order of conviction and sentence of the appellants is liable to set aside, allowing this appeal. 7. The victim was forcibly laid on earth but no injury was found on her body and there is no medical corroboration of the prosecution story. Therefore, the impugned judgment and order of conviction and sentence of the appellants is liable to set aside, allowing this appeal. 7. On the other hand, learned Special Public Prosecutor appearing for the State defending the conviction and sentence of the appellants has submitted that learned trial court has very wisely in a threadbare manner analyzed and scanned the prosecution evidence and arrived at right conclusion, which suffers from no illegality or infirmity calling for any interference in this appeal, which is devoid of merits and fit to be dismissed. 8. For better appreciation of the case the brief resume of evidence adduced during the trial requires to be discussed: P.W.8 is the victim lady. According to her evidence, on the date of occurrence at 8:30 PM, she went to fetch water from the hand pump situated behind her house, in the meantime, the accused Kallu Mian uplifted her from behind and Faguni Mian gagged her mouth for suppressing her sound while Minhaj was standing over the road for watching the villagers. During course of uplifting the victim, the bucket fell down from her hand and hearing the sound of falling bucket, her father rushed towards the hand pump. This witness further deposed that Kallu Mian brought her to the field situated behind her house and lifted her saree with evil intention. When her father came, all the accused persons fled away. She has also deposed that in the night, she along with her father went to police station and narrated the incidence to the police, which was recorded and her thumb impression was put over the written report. In her cross examination, this witness categorically admits that the accused persons are not relatives and the hand pump is within her backyard(baddi) and the field also belonged to her. She also says that the occurrence continued for about ½ hours. She has given very serious jolt to the prosecution story while she asserts that she was not acquainted with the accused persons prior to the occurrence. She also sustained injury due to fall but no medical examination was undergone by her. When her father came to the place of occurrence, she narrated the story to him. P.W.1 Kartrik Paswan is the father of the victim. She also sustained injury due to fall but no medical examination was undergone by her. When her father came to the place of occurrence, she narrated the story to him. P.W.1 Kartrik Paswan is the father of the victim. According to his evidence, on 04.04.1997 at about 8:300 PM, he was inside his house and his married daughter went to fetch water from hand pump situated behind the house. He heard the sound of falling bucket and came out of the house and went near his field where in a ditch, his daughter was lying and also saw Kallu Mian, Faguni Mian and Minhaz Mian at the place of occurrence. Upon that, this witness raised alarm and as the neighbours assembled, the accused persons fled away by dashing him. In his cross examination, this witness admits that the hand pump is situated behind his house, and just adjacent to place of occurrence, there are houses of Nathu Sonar, Jagdish Sonar, Mangal Paswan, Kulli Paswan etc. This witness alone went towards the place of occurrence i.e. a ditch about 10 ft. long and 5 ft. wide and 2 ft deep, where his daughter was lying naked. He saw the accused persons fleeing away from a distance of 15 meters. He also admits that the accused persons are co-villagers. This witness has denied the suggestions of defence that due to dispute of cutting tree, he has falsely implicated the accused persons and no such occurrence ever took place. P.W.2 Ramchander Ram is the grandfather of the victim girl. He also came to know about the occurrence after hearing hulla in the village. P.W.3 Subhash Kumar Swarnkar also heard hulla raised by Kartik Paswan(P.W.1), who disclosed about the occurrence to him. P.W.4 Rajendra Paswan also heard hulla and went to the place of occurrence, then Kartik Paswan(P.W.1) was crying that the accused persons have attempted to commit rape with his daughter. He has not seen any of the accused at the place of occurrence. P.W.5 Rameshwar Ram is also a hearsay witness and he has heard the incidence from Kartik Paswan(P.W.1). P.W.6 Sukri Devi is also a hearsay witness. P.W.7 Gouri Devi is the mother of the victim lady and she came to know about the occurrence from her daughter. He has not seen any of the accused at the place of occurrence. P.W.5 Rameshwar Ram is also a hearsay witness and he has heard the incidence from Kartik Paswan(P.W.1). P.W.6 Sukri Devi is also a hearsay witness. P.W.7 Gouri Devi is the mother of the victim lady and she came to know about the occurrence from her daughter. In her cross-examination, this witness clearly admits that prior to the occurrence, the accused persons were not in visiting terms with her family and she was not acquainted with the accused persons. 9. On the other hand, the case of the defence is denial from the occurrence and plea of innocence. Two defence witnesses have also been examined namely Raj Kumar Singh (D.W.1) and Abdul Hakim (D.W.2). D.W. 1 Raj Kumar Singh has deposed that he is acquainted with the informant as well as the accused persons. He further deposed that due to previous enmity and due to complaint to village Mukhiya for cutting and selling a public tree by the informant’s father, they have been dragged in this case. D.W.2 Abdul Hakim has deposed that there was dispute between Kartik Paswan and the accused persons for cutting and selling of tree woods. The informant was indulged in selling woods by cutting public tree, which was complained by the accused persons in writing to the village Mukhiya. Therefore, the father of the victim lady has falsely implicated the accused persons in this case. The Investigating Officer of this case has not been examined. 10. From the aforesaid trend of prosecution evidence, it is crystal clear that previous dispute between Kartik Paswana and accused persons has not been rebutted. The victim girl herself was not able to identify any of the accused persons at the time of occurrence. The sole eye-witness, who claims to approach at the time of occurrence, is the father of the victim, who has also stated that he saw the accused persons fleeing away from the distance of 15 feet and it was a dark night. His source of identification is also not convincing. The investigating Officer has also not been examined to prove the exact place of occurrence and no materials have been seized from the place of occurrence and brought on record. His source of identification is also not convincing. The investigating Officer has also not been examined to prove the exact place of occurrence and no materials have been seized from the place of occurrence and brought on record. The victim lady is a married woman and she claims to have sustained some injuries at the time of occurrence but has not undergone any medical examination that also cast serious doubt on her version. It is quite surprising that when the victim girl was not acquainted with the accused persons, how she can tell about specific overt act of each accused as stated in FIR. The claim of father of the victim about identification of accused persons as well as the place of occurrence to be a ditch is also not proved through cogent and reliable evidence. Under such circumstances, the defence plea, which is substantiated by two defence witnesses for false implication due to previous dispute cannot be overruled 11. I have given thoughtful consideration to overall events and chain of circumstances brought on record in this case and find that neither the victim lady nor her father are the reliable witnesses, so far occurrence of attempted rape is concerned, rest of the witnesses are hearsay witnesses. Learned trial court has ignored the material elicited in the cross-examination of the victim as well as her father from consideration and swayed towards Examination–In-Chief alone for satisfying his conscience to convict the accused persons. Therefore, I find substance in the point of arguments raised on behalf of the appellants and merits in this appeal. 12. Accordingly, the judgment of conviction and order of sentence dated 26.09.2006 and 27.09.2006 respectively passed by learned Additional Sessions Judge-cum-FTC, Koderma in Sessions Trial No.405 of 1997 arising out of Jainagar P.S. Case No.18 of 1997 is, hereby set aside and this appeal is allowed. 13. The appellant is on bail, hence, he is discharged from liability of bail bond. The sureties are also discharged. 14. Pending I.A(s), if any, is also disposed of accordingly. 15. Let a copy of this judgment along with Trial Court Records be sent back to the concerned trial court for information and needful.