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However, the FIR was lodged under Section 354, IPC, and offence punishable under Section 376 read with Section 511, IPC had been added after 16 days of the incident.

Fourthly; there are material inconsistencies beween the statement of PW-2 Uma Kant Sharma and PW-3 S.I. Ranjit Dubey with regard to the place of the incident because:

(a) PW-2 Uma Kant Sharma stated in his examination-in-chief that he saw the applicant lying down over the victim in a bush and at that time the appellant was naked, but on the other hand, PW-3 S.I. Ranjit Dubey stated in his cross-examination that he prepared the site map of the place of incident on the instance of the victim, which was situated in the mid of lawn and there was no tree or bush nearby.

44. The following suggestions have been asked from this witness; it is wrong to say that the victim had not been working in the house of colonel for the last 10 years. It is also wrong to say that the victim had told about the occurrence of obscene activity and under the pressure of higher officers he added Section 376/511, IPC. It is also wrong to say that the appellant has been implicated in false case under the pressure of colonel sahab.

45. After going through the evidence of this witness, it is noteworthy firstly; He recorded the statement of the victim on 27.11.2008 after 16 days of the incident because she was neither present at the spot nor found at her home. Secondly; he did not conduct medical examination of the victim because there was no injury or abrasion on the body of the victim. Thirdly; the victim in her statement before him did not tell about tearing off her blouse, pressing her chest and attempting to do intercourse. Fourthly; he prepared the site plan on the instance of the victim, as shown as 'AX' situated in the mid of the lawn there was no tree or shrub. Fifthly; he added Section 376/511, IPC after recording the statement of the victim and PW-2 under Section 161, Cr. PC. which have been recorded on 27.11.2008.

53. In Tarkeshwar Sahu v. State of Bihar (Now Jharkhand) (2006) 8 SCC 560, the Supreme Court has observed as under. (SCC, para 22, page 572) "22. In the backdrop of settled position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Sections 376/511 IPC is wholly illegal and unsustainable."

56. In Madan Lal v. State of J & K, (1997) 7 SCC 677, the Supreme Court observed as under: (SCC para 12, page 689) "12. The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her lie flat on the ground undressed himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with 511 IPC. In the facts and circumstances of the present case the offence of an attempt to commit rape by the accused has been clearly established and the High Court rightly convicted him under Section 376 read with Section 511 IPC."