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DECISION OF THE LEARNED TRIAL COURT:-

6. The learned trial Court delineated the following points to decide the case:-

"(a) Whether Al on 15.09.2021 at about 8:00 PM, at village Bhatnapaity within the jurisdiction of Alopatichar police station, District Barpeta, committed house-trespass into the house belonging to the informant/victim, used as a human dwelling, in order to commit an offence and thereby committed an offence punishable u/s 448 IPC ?

11. The remaining part of the arguments will be discussed at the appropriate stage. DECISION AND CONCLUSION:-

12. The question that falls for consideration is that whether the trial Court erred in convicting the appellant u/s 448 IPC and section 376/511 IPC.

13. To decide this case in its proper perspective the evidence is re-appreciated.

14. The victim deposed as PW-1 that the incident occurred about 2½ months back. On the fateful evening, at about 8 PM while she was in her kitchen, the appellant grabbed her from behind, gagged her by her mouth and pinned her to the ground and committed rape on her. When she raised alarm, her neighbour Jhumur Ali came to her rescue and took the appellant to their main house. Many neighbours including Dilwar Hussain, Mazibur Rahman had Page No.# 8/19 assembled at that time. Her neighbours took the appellant to the police station, as her husband was not present at that time. She lodged an FIR with the police and the police forwarded her to the hospital for medical examination. She was also forwarded to the Magistrate who recorded her statement. In her cross-examination, she testified that there are about 10 houses between her house and the appellant's house. Earlier, her husband had a friendly relationship with the appellant and they used to frequently visit each other. Her elder daughter is 12 years old and she was studying in the drawing room at the time of the incident.

33. In the instant case, in my foregoing discussions, it has already been held that the initial statement of the victim that the appellant attempted to commit rape on her is not similar to her testimony in the Court when the victim deposed that the appellant had committed rape on her. The learned trial Court scaled down the offence to Section 376/511 IPC from Section 376 IPC and convicted and sentenced the appellant to undergo Rigorous Imprisonment for 7 years and a fine of Rs. 10,000/- with default clause. As the trial Court did not rely on the deposition of the victim that the appellant had committed rape on her, the conviction of the appellant in connection with a lower offence or in connection with an attempt to commit such an offence under the facts and circumstances of this case, is unfounded. The decision of the trial Court thus, does not stand the scrutiny of law. The conviction of the appellant u/s 448 IPC is also liable to the set aside. The trial Court's observation that the acrimonious relationship between both the parties being the reason to commit such an offence is also unfounded. The trial Court has also erred when no question was asked to the appellant u/s 313 Cr.PC that whether he had attempted to commit rape. When the trial Court decided to convict the appellant u/s 376/511 IPC, failure of the trial Court to ask any question relating to any allegation of an attempt to commit rape and thereafter convicting the appellant on the offence of attempt to commit rape, indeed causes a prejudice to the appellant. In the light of the decision of the Hon'ble Supreme Court in Darshan Singh's case (supra), it is held that the appellant deserves a benefit of doubt.

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34. The appellant Habibar Rahman is thereby acquitted from the charges u/s 448 IPC and from charges u/s 376/511 IPC on benefit of doubt and is set at liberty forthwith.

35. However, keeping in view the provisions of Section 437-A Cr.PC, the appellant Habibur Rahman is directed to furnish a personal bond in the sum of Rs. 30,000/- (Rupees Thirty Thousand) and a surety bond in the like amount before the learned trial Court, which shall be effective for a period of 6 (six) months.