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9. Now let me see what is the evidence given by the victim and her daughter. Though an instance of rape was not revealed in the F.I. Statement, the victim gave a further statement after two or three days that the outrageous act  done by the accused was in fact an attempt for rape, and she did not reveal the truth at the initial stage for fear that it would adversely affect the future of her daughter. She revealed the true facts as instructed by her husband. When she thus revealed a case of attempted rape, the Police incorporated Section 376 read with 511 I.P.C and deleted Section 354 I.P.C. Ext.P8 report was accordingly filed in court. The victim again changed her versions and alleged a case of actual rape when she was examined by the learned Magistrate under Section 164 Cr.P.C. In the said statement, she stated that she was in fact subjected to sexual intercourse by the appellant by force at her house, and her daughter reached there seeing this incident of rape. She had closed the front door from inside, but the appellant gained entry through the kitchen door, and the daughter happened to see the incident through a crack on the front door. When the daughter made hue and cry, the two accused ran off and escaped. The question is to what extent this statement can be believed. When the lady thus revealed a case of actual rape on 8.6.2009, the Police filed a report in court on 12.6.2009 that this is not merely a case  of attempted rape, but a case of actual rape. Section 376 I.P.C was thus incorporated, and the provision regarding attempted rape was deleted. It was accordingly, after investigation, the Police submitted final report under Section 376 I.P.C.

10. On an examination and analysis of the evidence given by the victim in this case as PW1, I find something suspicious as regards the allegation of actual rape. The first portion of the deposition of PW1 will show that her daughter came there and happened to see the incident when she was caught with force on the neck by the accused with the object of subjecting her to sexual intercourse. This means that the daughter had not in fact witnessed an incident of rape. If the first portion of the evidence given by the victim is acceptable and believable, what is revealed is only an instance of attempted rape, and PW2 came there and happened to witness the incident when attempt was being made by the accused to ravish the victim inside the house. This evidence will definitely show that before the appellant could actually ravish her and subject her to sexual intercourse, the daughter came there, and then the  appellant ran off and escaped. The second part of the deposition took a deviation when the lady spoke about the rape committed on her by the accused. The explanation given by the lady in cross-examination for the change in versions on two occasions is not convincing and acceptable. After two days, she explained that the incident was an attempted rape, and she explained that she did not reveal the truth due to some delicacy or humiliation, and also for fear that it would affect the future of the daughter. Her evidence shows that the whole truth was revealed by her after two or three days in her further statement. But to make or develop a case of rape, she waited till 8.6.2009, when examined by the Magistrate under Section 164 Cr.P.C. The report of the Investigating Officer shows that he thought of having the statements of the victim recorded under Section 164 Cr.P.C when the victim went on changing her versions during investigation. Probably he felt something suspicious when the lady went on changing her versions without maintaining consistency as regards the actual incident. Her explanation is that, she did not reveal the true things to the Police due to humiliation and also for fear that  revelation of the true incident would affect the future of the daughter. But the evidence of the victim in cross- examination will convince the court that she had revealed the whole truth on 14.5.2009, when she explained a case of attempted rape to the Police. This means that the whole truth was revealed by her on 14.5.2009, and nothing more remained to be revealed thereafter. If so, the case of actual rape developed by her after three weeks will have to be viewed with genuine suspicion. Of course, the explanation made on 14.5.2009 regarding an attempted rape can be believed and accepted by the court because the F.I Statement itself reveals the essentials of of such an offence. The appellant had told her that the other accused was waiting outside for his turn. This means that the real object of the accused was to rape the lady, and everything he did inside the house was part of the said attempt. That is why, I said that an actual case of attempted rape is revealed by the Ext.P1 F.I statement. Thus, what I find is that the case of actual rape told by the victim is not acceptable when everything regarding such versions is suspicious, but a case of attempted rape is well proved by the evidence of the  victim.

12. PW2 is the daughter of the victim who witnessed the incident. Her evidence is that when she looked through the crack on the front door, she saw the mother being caught hold of by the accused on the neck and she also saw the appellant committing rape on the mother. The night garment of the mother was seen raised and the accused was in a half naked condition. When she cried aloud, the accused escaped through the rear door. In fact, it is really doubtful whether the appellant had in fact committed rape on the victim as the daughter would say. A careful  examination of the evidence of the daughter would show that when she reached there what she saw was in fact the accused holding her mother's neck and making an attempt to ravish the mother. When questioned by the Police, for the first time, the statement of PW2 was that when she looked through the crack on the door on hearing the mother's cry, she saw the accused holding the mother with force on the neck and making an attempt to ravish her. When interrogated further by the police during investigation, she changed her versions and developed a case of rape. When cross-examined by the defence, the girl admitted that she had not given such a statement to the Police, that her mother had been raped by the accused. She admitted that her first statement was only about the attempt made by the accused to ravish the mother, and not about the actual instance of rape. She did not explain why she did not reveal the things or the truth when first questioned by the Police. Curiously enough, the learned Public Prosecutor also did not elicit such things, or any explanation, why or in what circumstance the girl happened to change her versions and introduced a case of rape at a later stage. On a careful  analysis of the first information statement and the statements given by the victim and her mother, just after two days from the date of incident, what I find is that this is in fact a case of attempted rape. If it is really a case of rape, it requires explanation why the true things were not revealed by the victim or her daughter at the right stage. This is something suspicious. The victim stated that she revealed the whole truth after two days at the instance of her husband or as instructed by her husband. If so, it is really doubtful why she waited till the death of the husband to speak about a case of rape. There is reason to believe that when she dishonestly developed such a case of rape later, the daughter was also instructed accordingly to gave such a statement about rape. During cross-examination, the girl fairly conceded that many important aspects stated by her in evidence, were not in fact stated to the Police, when questioned by the Police during investigation. She has no explanation why she suppressed all these facts or why she thought it convenient to reveal things only after a few days. The girl is consistent that when she saw the appellant inside the house he was in a half naked condition  and the night garment of the mother was seen raised upwards. It was in such a condition she saw the mother being caught by the accused. This is nothing but an attempt to commit rape. Such an attempt is in fact revealed by the F.I Statement very much. I find on a thorough examination of the entire evidence that an attempt to commit rape on the victim was in fact done by the appellant at her house and this must be what the daughter also witnessed actually. I find that the prosecution has proved a case of house trespass and rape attempt.