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BRIEF FACTS The prosecution case, in brief, is that on 21.02.2008 mother of the prosecutrix gave statement to the ASI Mohan Lal that her husband used to do the work of embroidery. Near their house in house no. 286, her parents live as a tenant. In other room of the said house, she used to leave her daughter (prosecuterix) aged 5 years and boy Shubham with her mother then she used to go to the houses of locality to do kitchen work. On 20.02.08 when she returned back to her home she saw her daughter frightened and mum who told her that accused Salem Rai who is husband of her mother's sister and maternal grand father of her daughter has fondled with the private parts of her daughter. On being asked she told that accused Salem Rai has inserted his finger in her private parts. When her husband came back at 8:30 PM she informed the incident to him. Thereafter matter was reported to the police, Investigating officer recorded the statements of witnesses, he prepared the site plan. The prosecutrix was medically examined by the doctors. MLC of the prosecuterix was prepared. Disclosure statement of accused was also got recorded . Statement under Section 164 Cr.P.C of the prosecuterix was got recorded. The accused was arrested. On completion of investigation, accused was arrested and case was committed for facing trial by accused before this court, as referred before.

PW2 is Head Constable Yatender Malik who proved DD No. 44A whose cope is Ex. PW 2/A. PW3 is Head Constable Hukam Singh who stated that he recorded the FIR and brought the original FIR, Computer copy of the FIR is proved by him as Ex. PW 3/A. His endorsement on the rukka is Ex. PW3/B. After registration of FIR the copy of FIR and original rukka was handed over to ASI Mohan Lal.

PW 4 is smt Jhuma Rong was stated that she was working as a domestic helper. Accused Salem Rai is her mausa. He used to residing in her neighborhood in the house where her parents were reside. When she used to go to her work place, he used to leave her daughter in the house of her mother. On 20.02.2008 she went to her work place after leaving her daughter in the house of her mother. When she returned back at about 11:30 am her daughter was in a frightened state. When she asked her daughter she told that she went to play in the house of the accused Salen Rai. She informed that Salem Rai i.e. her Nana had fondled with her private parts by his fingers. She told these facts to her husband also. Thereafter, they brought their daughter to the police station where her statement was recorded and the same is Ex. PW 4/A. PW5 Smt. Shobha stated that her daughter Jhumma Rong used to reside in her neighborhood with her husband and her daughter aged 5 years. Whenever Jhumma used to go to her work place, she used to leave her daughter with her. Accused Salem Rai present in the court is the husband of her sister. She was residing in her house. She and her husband were also going to work place after leaving the child alone.

On 20.02.2008 when at about 8 Pm she came to her house her daughter informed that accused Salem Rai has made indecent act with her daughter (prosecutrix) by calling prosecutrix in her room. Next day, in the morning they reported the matter to the police.

PW 6 Suraj Rongh has stated that on 20.02.2008 at about 8 PM he came back from his work place. His wife Jhumma Rongh informed that accused Salen Rai who is her maussa and was residing in his neighborhood in parental house of his wife has committed indencent act by fondling with her private parts. He alongwith his wife and daughter Sakhsi came to the police station and Lodged this FIR after that her daughter was medically examined and accused was arrested upon her identification.

In the fact situation of the present case the prosucuterix soon after the incident has informed her mother the complainant PW4 Jhumma Rani that accused had fondled with her private parts by his fingers. The prosecuterix has not stated about the commission of rape or attempt of rape by accused. PW 5 Shobha has also stated that her daughter prosecuterix has informed her that accused had made indecent act with her and subsequently stated that accused committed rape on the prosecuterix. PW 6 Suraj Rong the other public witness who is father of the prosecuterix has also stated that he was informed by her wife that accused has committed indecent act by fondling with her private parts. Therefore, in the light of principle of res gestae and Section 6 of Indian Evidence Act as referred before, it would not be appropriate to rely upon the statement of prosecuterix that accused inserted his private part into her private part as the statement of the prosecuterix looks exaggerated. The medical evidence shows the bruises on the private part of the prosecuterix which also can be possible due to insertion of finger of accused in her private parts. The fact that semen was found on the underwear of the accused also does not necessarily show that accused has committed rape or attempted to commit rape. There is no evidence that on the undergarments of the prosecuterix the semen was found. Where the allegations were that while the victim aged about 4 years went to shop of the accused to purchase a sweet pudiya (small packet), he called her inside and took her in his lap and did something as a result of which her dress was wet, but there was no material showing that any attempt was made by the accused to commit rape or intercourse. There was no material that the accused had undressed himself and any attempt was made by him to undressed the victim, hence the conviction of the accused under section 376/511 was altered to one under section 354. {See Trinath Bhoi V State of Orissa (2007) Cr. L. J 3227 (Ori).} In view of the above discussion I hold prosecution has been able to prove its case against the accused under section 354 IPC for out ranging the modesty of the prosecuterix but has failed to prove the charge under section 376/511 IPC against the accused. Therefore, accused charged for the offence under section 376/511 IPC is liable to be convicted under section 354 IPC.