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2. The law was set on motion on the Fardbeyan of the informant Udai Ram giving rise to Nagar Untari P.S. case No. 79 of 1996 corresponding to G.R.No. 644 of 1996 on 6.10.1996 for the alleged offence under sections 376/511/341/323 of the Indian Penal Code. The informant narrated that on 5.10.1996 his sister Shakuntala Kumari had proceeded towards forest with her friend and co-villager Parvati Kumari with their cattles. It was alleged against the appellant Rajesh Vishawkarma that all on a sudden, he raised alarm in the forest by playing hoax that they (Naxalites) were coming with the guns and then he started running. Pursuant to such hoax played by him, Shakuntala Kumari also started running with Parvati Kumari towards village but Rajesh Vishawkarma caught hold his sister Shakuntala from her behind, pulled her down on the earth and attempted to outrage her modesty. However, Parvati Kumari made for good escape from the place of occurrence and narrated the occurrence to the villagers. The informant upon such information proceeded with his father towards the forest and found his sister Shakuntala coming in a state of partially naked. Being called upon she narrated that Rajesh Vishawkarma had attempted to ravish her by tearing her pantee and gagged her mouth with his one hand and molested with his another hand, yet getting opportunity she kicked on his testicles and escaped. The informant covered her body with his towel. On the subsequent day i.e on 6.10.1996 a panchayati was held, as such, the informant went to the house of the appellant calling upon him and his father and uncle to attend the Panchayati but he was assaulted by them at their doors. The informant then decided to inform the police and came across the police on his way to police station with his father and sister and that his fardbeyan was recorded giving rise to Nagar Untari P.S.Case No.79 of 1996 for the offence under sections 376/511/341/323 of the Indian Penal Code against the accused Rajesh Vishwakarma ,his father and uncle. After investigation, charge sheet was submitted against the appellant Rajesh Vishawkarma, Kameshwar Vishawkarma and Vishawnath Vishawkarma under sections 376/511/341/323 of the Indian Penal Code. Charge against the accused-appellant Rajesh Vishawkarma was framed under sections 341,376/511 of the Indian Penal Code whereas separate charge under section 323 of the Indian Penal Code was framed against each of the other two accused Kameshwar Vishawkarma and Vishawnath Vishawkarma on 27.8.1998 and all the three were put on trial. The learned Sessions Judge, after appreciation of the materials on record, convicted the appellant-accused for the offence under sections 376/511/341 of the Indian Penal Code but the charge under section 323 IPC could not be proved against the other two accused Kameshwer Vishawkarma and Vishawnath Vishawkarma, hence they were acquitted.

4. Heard Mr. T.N.Verma, the learned A.P.P. appearing for the State who submitted that the appellant was prevented by the victim who resisted and kicked his testicles and escaped when the appellant attempted to ravish her after removing her Salvar and tearing her pantee and for such resistance and courage shown by Shakuntala he could not succeed in his nefarious design, therefore appellant was rightly convicted under section 376/511/341 of the Indian Penal Code and adequately sentenced..

5. I find from the record that victim Shakuntala was examined as P.W.1, the informant Uday Ram as P.W.2 and other witnesses such as Parikha Singh, Brahamdeo Ram, Sarjug Baitha and Ramdhyan Pal as P.W.3,4, 5 and 6 respectively. It is relevant to mention that the Investigating Officer. abstained from the witness box during trial and the FIR could be proved by a formal witness Ramdhyan P.W.6 and the FIR was marked Ext.3.The informant Udai Ram testified that on 5.10 1996 when he was in his house, his sister Shakuntala Kumari with another girl Parwati went to the forest with their cattles for grazing. The accused- appellant came and played hoax to the girl that they(Naxalites) were coming with gun and asked them to run away. Consequent to hoax played by him his sister and Parvati Kumari both started running but the accused- appellant caught Shakuntala by her hair from behind and pushed her on the ground and outraged her modesty.. Parvati Kumari came to the village and narrated the occurrence to the informant and his father. Upon such information, both proceeded towards the forest and witnessed Shakuntala coming in a state of partially naked. The Informant then covered her body with the towel. She narrated that Rajesh Vishwakarma had insulted(outraged) her modesty. P.W.1 Shakuntala Kumari testified that the occurrence took place two and half years ago, when she along with Parvati Kumari had been to forest with their cattles in the direction of the hillock. In the meantime, Rajesh Vishwakarma came and played hoax that they(Naxalites) were coming with guns and while she started running, he caught hold her body and pushed her on the ground, removed her pantee and outraged her modesty but getting opportunity she kicked in his testicles and escaped from there. While returning back to home, she came across her father and brother on the way. Parvati Kumari, who had accompanied her in the forest had already conveyed the occurrence in the village.P.W.3 Parikha Singh was declared hostile whereas P.W.4 Brahamdeo Ram admitted that he had seen some bruise on the back of Shakuntala and her mother apprised that Rajesh tried to out rage her modesty in the forest.P.W.5 Sarjug Baitha,the father of the victim had corroborated the version of Shakuntala. His testimony is relevant on the circumstances that on the information given by Parvati Kumari when he proceeded with his son towards the forest, he witnessed his daughter Shakuntala coming.She was partially naked and she narrated that Rajesh Vishawkarma had outraged her modesty. The conduct of the informant P.W.2 Udai Ram and P.W.5 Sarjug Baitha inspired confidence who appeared to be a natural witnesses on circumstance. They were not the eye witnesses but consistently narrated as to how they witnessed Shakuntala coming from the forest side in partially naked condition and she narrated the same story what Parwati had narrated to the villagers at the first instance. She further narrated as to how the appellant Rajesh Vishwakarma pushed her down on he ground, forcibly removed her Salwar and pantee and while was attempting to rape on her, she kicked on his testicles and escaped. The intention of an accused can be gathered from his conduct and the surrounding circumstances. The appellant first got the girls frightened by playing hoax and then caught hold Shakuntala by allowing another girl to escape. The intention of the appellant can well be inferred that he pushed the girl and removed her undergarments. Shakuntala could not say that the appellant at that time removed his own pant and took out his private organ but such omission ca not adversely affect the allegation. Admittedly, Parvati Kumari was not examined as witness during trial but her absence from the witness box was not going to frustrate the entire prosecution story in view of the consistence evidence of P.W.1 Shakuntala, P.W.2 Uday Ram and P.W.5 Sarjug Baitta. I find from the circumstances brought on the record by the prosecution that if the appellant would not have been prevented by the girl who kicked his testicles he would have succeeded in his nefarious design of committing rape but he attempted to do so. I find and hold that the learned Sessions Judge was justified in convicting the appellant under section 376/511 of the Indian Penal Code as also under section 341 IPC.The appellant has been adequately sentenced for his conviction. The learned Sr.Counsel appearing for the appellants failed to show any reasonable ground so as to call for interference in the judgment and order recorded in S.T. No. 427(P) of 1997/S.T. No. 929(G) of 2001 arising out in Nagar Untari P.S. case No. 79 of 1996. There being no merit, this appeal is dismissed. The sentence of the appellant Rajesh Vishwakarma which was suspended by granting ad-interim bail on 13.12.2002 during pendency of this Cr.Appeal. stands vacated. The trial court is directed to take effective steps and to ensure that the appellant Rajesh Vishwakarma serves out the remaining period of sentence in prison.