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3. Heard learned counsel for the appellant, learned public prosecutor and perused the impugned judgment dated 27-6-2012 including the evidence available on record.

4. Learned counsel for the appellant submitted that the impugned judgment dated 27-6-2012 convicting the accused appellant for an offence u/s.376/511 IPC and the sentence flowing therefrom were vitiated on multiple grounds. It was submitted that the FIR was filed after a delay of 11 days; the only independent witness Pw.12 Shanti did not support the prosecution case; the situs of the offence as set out in FIR was found by the trial court to be false; the prosecutrix in her first two versions following the lodging of the FIR with a delay of 11 days had admitted that the offence as alleged had not at all taken place; the star/ material witness one Rajesh in whose room the complainant was stated to have stayed on the night intervening 29th and 30th December, 2010 was not examined; there were apparent embellishments and improvements by the prosecutrix in the course of her evidence before the trial court over her initial version as per Exhibit D-3 and D-4 and statements first made under section 161 Cr.P.C.; in spite of overwhelming evidence to dislocate the prosecution case, the learned trial court has mechanically relied upon the evidence of prosecutrix Pw.2 Bina and her sister Pw.3 Suman without noting the apparent inconsistencies in the case of prosecutrix herself; the learned trial court has glossed over its own finding that in the trial u/s.376/511 IPC the situs of incident given by the complainant/ Pw.1 Chhotelal, husband of the prosecutrix was incorrect and false, and that the trial court had itself concluded in the impugned judgment dated 27-6-2012 that evidence of Pw.1 Chhotelal was full of embellishments and that he was unreliable. Learned counsel has finally submitted without prejudiced the above contentions, that even otherwise if the whole of the prosecution evidence at the instance of Pw.2 Bina, the prosecutrix, and Pw.3 Suman, her sister were to be taken at face value no offence u/s.376/511 IPC would be made out. Reliance for this purpose has been made to the judgment of the Hon'ble Supreme Court in case of Tarkeshwar Sahu Vs. State of Bihar (now Jharkhand) [(2006) 8 SCC 560].

8. The Hon'ble Supreme Court in case of Tarkeshwar Sahu (supra) has held that in the absence of a clear attempt to penetrate a woman, a conviction u/s.376/511 IPC would be wholly illegal and unsustainable. The evidence of prosecutrix Pw.2 Bina and her sister Pw.3 Suman even at its face value does not indicate that the accused appellant had forced himself over the prosecutrix and was on the verge of forced sexual intercourse with her. The say of the prosecutrix in her evidence before the trial court was that the accused appellant had merely groped all over her body and touched her face. It was also stated that by the prosecutrix that before the accused appellant could proceed further, she raised a hue and cry, whereupon her sister Suman, Pw.3 and the land lady Shanti Pw.12 and her husband Chhote Lal arrived on the scene and prevented the accused appellant in achieving his criminal object of raping her. The action attributed to the accused appellant by the prosecutrix cannot in the context of the evidence of prosecutrix herself entail conviction of accused appellant u/s.376/511 IPC in terms of the enunciation by the Hon'ble Supreme Court in the case of Takeshwar Sahu (supra). The Hon'ble Supreme Court in case of Tarkeshwar Sahu (supra) held thus:-

On careful analysis of the prosecution evidence and documents on record, the appellant cannot be held guilty for committing an offence punishable under Section 376/511 IPC. According to the version of the prosecution, the appellant had forcibly taken the prosecutrix to his gumti for committing illicit intercourse with her. But before the appellant could ravish the prosecutrix, she raised an alarm and immediately thereafter, her father Pw 1 Ram Charan Baitha and other co-villagers residing in the vicinity assembled at the spot and immediately thereafter, the appellant and the prosecutrix came out of the gumti. In this view of the matter no offence under Sections 376/511 IPC is made out.

11. In [(2008) 10 SCC 69] Lalliram Vs. State of M.P., the Hon'ble Supreme Court has held that where the statement of the prosecutrix are inconsistent and there is no medical evidence of the offence the accused would be entitled to an acquittal. In Suresh N. Bhusare Vs. State of Maharashtra [(1991) 1 SCC 220] the same principle has been enunciated.

12. Consequently, this court in the state of evidence on record cannot uphold the order of conviction of the accused appellant for the offence under Section 376/511 IPC or alternatively even for an offence under Section 354 IPC. Therefore the impugned judgment dated 27-6-2012 passed by the trial court Sessions Judge Alwar is quashed and set aside. The accused appellant Man Singh is acquitted of the offence under section 376/511 IPC. He is on bail, and need not surrender. His bail bonds are discharged.