Chandra Bhushan Bajpai, J.Challenge in this appeal is to the judgment of conviction and order of sentence dated 28-2-2002 passed by the IIIrd Additional Sessions Judge, Raipur in Sessions Trial No. 198/2001 whereby and whereunder the learned Additional Sessions Judge after holding the appellant guilty for lurking house trespass in order to commit offence punishable with imprisonment and for committing rape with the prosecutrix (PW-7, name not mentioned), convicted the appellant under Sections 457 and 376(1) of the Indian Penal Code (for short the IPC) and sentenced him to undergo rigorous imprisonment for 4 years and to pay fine of Rs. 500/-, in default thereof, to further undergo rigorous imprisonment for 1 month; and to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 500/-, in default thereof, to further undergo rigorous imprisonment for 1 month, with a direction to run both the substantive jail sentences concurrently.

2. Conviction is impugned on the ground that without there being any iota of evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

3. As per case of the prosecution, on 20-5-2001, at about 11.30 a.m., the prosecutrix (PW-7) reached to Police Station Mandir Hasod, District Raipur and lodged the First Information Report (FIR) against the appellant under Sections 456, 376 of the IPC and stated that presently she is living at Village Nawagaon in the farm house situated inside the farm of Durgesh Talmale (PW-11) along with her husband who is working as Guard in the said farm house. On 19-5-2001, at about 10.00 a.m. when her husband as instructed was going for transportation of Barat, the appellant came and asked Durgesh Talmale (PW-11) for two wheeler which he allowed. The accused/appellant took the two wheeler. Thereafter, the prosecutrix (PW-7) locked the main gate of the farm and was sleeping inside the room along with 2 small children. At about 1.00 a.m. of intervening night of 19-5-2001 and 20-5-2001 the accused/appellant entered inside by jumping the boundary wall and called her to open the lock of the main gate for keeping the two wheeler inside, then she opened the lock of the main gate, thereafter the accused/appellant put the two wheeler inside and when she was taking the key of said two wheeler from the accused/appellant, he caught hold her and caused her fall down, she protested the same but he forcibly committed rape with her. She make a call for help; the accused/appellant stated that nobody will hear and he will commit the rape. Thereafter he committed the rape forcibly. After the incident, she ran away to the house of her family friend Ishwar (PW-9) and she narrated the entire incident to the wife of Ishwar namely Ramkunwarbai (PW-1), Ishwar (PW-9) and others. She also informed that the accused/appellant had consumed liquor and he is inside her house. When Ishwar (PW-9) and others visited her house, they noticed the accused/appellant was inside the house, but he had not opened the door. When her husband returned very early morning, then she narrated the whole story to him. When her husband enquired it from the accused/appellant who was in the same house, the appellant ran away from the spot. The prosecutrix (PW-7) along with her husband and other villagers reached to the police station and lodged this report. Police registered crime No. 102/2001 and wrote the FIR vide Ex.-P/5. After registration of the First Information Report, police of Police Station Mandir Hasod started the investigation. After obtaining the necessary permission, the prosecutrix (PW-7) was sent for medical examination. Dr. Smt. Neeta Bhatnagar (PW-4) examined the prosecutrix (PW-7) and noticed one small abrasion at left knee; except the said abrasion, no other external or internal injury was found. As per her assessment, no definite opinion about the intercourse can be given as she was married and habituated to intercourse. She gave her report vide Ex.-P/2. She also examined the clothes of the prosecutrix (PW-7) and after examining the same, sent it towards police for chemical analysis regarding the presence of semen stains. She gave her report vide Ex.-P/3. The spot map was prepared vide Ex.-P/8. The accused/appellant was arrested. His clothes were seized vide Ex.-P/9. The accused/appellant was sent for medical examination. Doctor K.S. Roy (PW-6) examined the accused/appellant and noticed that he was capable of doing intercourse. Nothing abnormal was noticed during his examination. He also examined the undergarment of the accused/appellant and advised for the chemical analysis. He gave his report vide Ex.-P/4. The articles so seized were sent for chemical examination vide draft Ex.-P/12. The articles were received at the Forensic Science Laboratory (FSL), Raipur vide receipt Ex.-P/13. After the analysis, the FSL, Raipur gave its report vide Ex.-P/14 and as per its report, upon the said slides of vaginal swab and clothe of the prosecutrix (PW-7) and undergarment of the accused/appellant stains of semen and human spermatozoa were found positive. The statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the Code).

4. After completion of the investigation, charge sheet was filed before the Judicial Magistrate First Class, Raipur on 31-5-2001, who, in turn, committed the case to the Court of Sessions, Raipur, from where the Additional Sessions Judge received the case on transfer and started the trial. He charged the accused/appellant under Sections 457 and 376 of the IPC. The accused/appellant denied the charges and prayed for trial.

5. In order to prove the guilt of the appellant, the prosecution examined as many as 11 witnesses. The appellant/accused was examined under Section 313 of the Code wherein he denied the circumstances appearing against him in the prosecutions case and pleaded innocence and false implication in crime in question. The accused/appellant also examined one defence witness namely Basant Kumar Yadu (DW-1) who deposed that earlier the prosecutrix (PW-7) made a complaint against some Sewak. Also she made a complaint against this defence witness and as per this witness the prosecutrix (PW-7) is of complaining nature; the accused/appellant is falsely implicated.

6. After providing opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned.

7. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court.

8. Learned counsel for the appellant vehemently argued that only Ramkunwarbai (PW-1) deposed regarding rape. Sukhnandan (PW-2) turned hostile and not supported the prosecutions case. Joidharam (PW-3) also not stated anything regarding the incident, he only deposed regarding the (dishonor). Doctor Smt. Neeta Bhatnagar (PW-4) noticed only one abrasion and no external or internal injury was found over the body of the prosecutrix (PW-7), also she gave no definite opinion regarding the incident. Constable Alakh Ram (PW-5) helped in initial investigation. Doctor K.S. Roy (PW-6) examined the accused/appellant and opined that he was capable of doing intercourse. The prosecutrix (PW-7) deposed that the person residing in the same mohalla (locality), their house situated at a distance, nobody heard the call for help and as per para 8, the accused/appellant had made her fall down twice or thrice but even then no injury noticed by the doctor. As per para 11 of the statement of the prosecutrix (PW-7), when her husband told that he will call 4 persons of the village, then the accused/appellant ran away from the spot, but where he ran away is not clearly indicated. As per para 15, if 2 children were there why they did not awake. As per statement of Baldev (PW-8, husband of the prosecutrix-PW-7) at para 6, when he knocked the door the accused/appellant opened the door, at para 4, the accused/appellant told him that he had not committed anything, it may have been committed in the influence of intoxication of liquor. As per para 5, his son aged about 7 years was sleeping in the same house, as per para 6, the owner of the farm house was also sleeping in the same room then where the accused/appellant was sleeping As submitted, there are omissions in his police statement (Ex.-D/1) and Court statement for the fact that underwear and bottle of alcohol was lying in the court yard, also that this witness asked from his wife regarding the incident. So there are omissions, which are material in the statement of this witness. As per para 14, the accused/appellant gave a suggestion that he was falsely implicated, the same was denied by the witness. As per statement of Ishwar (PW-9), the prosecutrix (PW-7) told him that the accused/appellant committed rape with her; this witness also gave a different story. In the present case, all the material witnesses deposed different sets of story and different versions. The prosecutrix (PW-7) is simply deposing regarding. There is no medical corroboration. Even after the prosecutrix (PW-7) was forcibly fallen down at the floor but the presence of only one abrasion makes the case suspicious. If the 7 years small child was sleeping along with her mother then why did not he awake Ishwar (PW-9) stated that inside the room there were 2 children sleeping, one his son and the other is his friends son i.e. of Baldev (PW-8) and the prosecutrix (PW-7). As per spot map, Ex.-P/8, at point No. 3 the incident of rape is said to be committed and he awoke the prosecutrix (PW-7) at point No. 2. There are difference in the police statement and the Court statement of the husband. This is a case of consent; she was not telling anything regarding the rape. Hence, rape is not committed over the prosecutrix (PW-7). If the accused/appellant had consumed liquor, then how he managed to run away. In absence of medical corroboration, the statement of the prosecutrix (PW-7) may not be taken as true as she was a married lady, presence of human spermatozoa and stains of semen are natural. How many children were inside the room, for this different witnesses stated different things. Hence, the case of the prosecution is suspicious and why the small children not woke up as she made a call for help. Baldev (PW-8, husband of the prosecutrix) states that owner of the farm house also slept in the same room along with the accused/appellant. There are exaggeration and improvements. The prosecution has not proved its case against the accused/appellant beyond all probable doubts. This is not a case of either consent or denial. It is further argued that on account of above submission, conviction and sentence against the accused/appellant may be set aside and he be acquitted of the charges leveled against him.

9. On the other hand, learned counsel appearing for the State/respondent supported the judgment of conviction and order of sentence passed by the trial Court against the appellant and opposed the argument advanced on behalf of the appellant and submitted that the judgment of the trial Court is well founded, there is no scope for interference; there was immediate FIR, other witnesses also supported the prosecutrix (PW-7) that she informed them about the commission of rape by the accused/appellant, also the FSL report confirms the presence of stains of semen and human spermatozoa in the clothe of the prosecutrix (PW-7) in the slides of vaginal swab and also in the undergarment of the accused/appellant; therefore, since the prosecution proved its case against the appellant sufficiently, the appeal may be dismissed.

10. In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence available on record.

11. Upon minute examination of the entire evidence, it goes to show that the accused/appellant was aware that the prosecutrix (PW-7) was all alone in the said farm house as her husband went outside for transportation of Barat. The FIR is promptly lodged. There are no enmity with the accused/appellant. As per spot map (Ex.-P/8), no other houses are connected near the farm house, thereby it eliminates the possibility and probability that any other person may hear the call of the prosecutrix (PW-7). Though there are minor omissions, but they do not effect the case adversely. As the prosecutrix (PW-7) was a married lady, medical corroboration is not necessary. The FSL report also confirms the presence of stains of semen and human spermatozoa in the clothe of the prosecutrix (PW-7), in the slides of vaginal swab taken during her examination and also in the undergarment of the accused/appellant.

12. As per the prosecutions case, immediately after the incident she went to the house of her family friend, Ishwar (PW-9) and informed him along with his wife and others regarding the incident which was duly supported by Ramkunwarbai (PW-1) and Ishwar (PW-9), the wife and the husband, that the prosecutrix (PW- 7) informed them at night 1.00 a.m. that the accused/appellant committed forcibly rape with her. Sukhnandan (PW-2) though turned hostile, but he supported a part of the prosecutions story and deposed that Baldev (PW-8) told him that the accused/appellant trespassed in his house. Joidharam (PW-3) supported the prosecutions story. As per this witness Baldev (PW-8, husband of the prosecutrix) told him that in his absence at previous night, the accused/appellant trespassed in his house after consumption of liquor. The wife of Baldev (PW-8), the prosecutrix (PW-7), on being asked by the elder persons present, as per this witness-Joidharam (PW-3), she stated that when she was all alone in the house, the accused/appellant entered in the house after consumption of liquor and when he noticed the prosecutrix (PW-7) all alone, he took her down and committed. The prosecutrix (PW-7) was cross-examined at length, she remained very firm and even after the lengthy cross-examination, nothing could be elicited which could discredit her. She gave a detailed version of the incident at para 3 and even in the cross-examination para 8; it goes to show that she was subjected for forcible intercourse by the accused/appellant. Over the number of children, there are no material difference, also nothing specifically asked regarding where the children were sleeping. As per spot map (Ex.-P/8), the incident of rape committed in another room, if the small children were sleeping in a different room, there were every possibility that they may not hear the call for help by their mother. In a natural course, immediately after the incident on account of fear and shelter she left her house and went to the house of her family friend Ramkunwarbai (PW-1) and Ishwar (PW-9), she informed them regarding the incident and when Ishwar (PW-9) along with other villagers went to the house of the prosecutrix (PW-7), they saw the accused/appellant inside the room, which is also corroborated by the husband of the prosecutrix--Baldev (PW-8) that he met with the accused/appellant inside his house and when he told him that he is going to call persons from the village, then the accused/appellant ran away from the spot. As per this witness-Baldev (PW-8), he returned home at about 4.00 early morning, at that time he was not knowing that what happened in his absence, normally he reached to his house, knocked the door and after half an hour the accused/appellant opened the door, then he saw the undergarment of the accused/appellant lying in the court yard along with bottle of alcohol, then he searched for his wife, thereafter, he reached to her family friend (Mitan), there he met with his wife who told him the entire story.

13. In the present case, defence witness Basant Kumar Yadu (DW-1) is a interested witness, he leveled the allegations against the prosecutrix (PW-7), but on account of non-production of any document and other corroborative evidence, his statement cannot be taken as true. The trial Court rightly rejected the statement of Basant Kumar Yadu (DW-1) as false and not admissible.

14. Upon minute examination of the evidence, it goes to show that there are no reason to disbelieve the prosecutrix (PW-7), her husband-Baldev (PW-8), her family friends husband and wife i.e. Ishwar (PW-9) and Ramkunwarbai (PW-1) and other witnesses who corroborated about the post part of the incident that they were informed by the prosecutrix (PW-7) that the accused/appellant committed forcibly rape with her. In the statement under Section 313 of the Code, no explanation was given by the accused/appellant, he simply stated that witnesses are telling lie as per pressure of Sarpanch, but in the entire prosecution witnesses examination, no specific suggestion is given that all the witnesses are telling lie on account of pressure of Sarpanch. There are no different versions, no different stories for the relevant issue before this Court. The witnesses are villagers, labourers, poor and almost illiterate, they hardly write their names anyhow, their statements were recorded in the Court after 5 months, minor variations or differences, if any, may not be treated as fatal for the prosecution.

15. In the present case, the factum of protest, rape with the prosecutrix (PW-7), thereafter the prosecutrix (PW-7) informed regarding the incident to many witnesses including her husband immediately after the incident and also when her husband returned home, goes to show that there is no reason as to why the prosecutrix (PW-7) would falsely implicate the accused/appellant. The suggestion given to Baldev (PW-8) that he falsely implicated the accused/appellant as he used to made false complaint to his employer, there is no force in the suggestion in absence of any corroborative fact in comparison to the entire prosecutions story proved by the prosecution which is admissible, truthful, credible and clinching. The evidence of the prosecutrix (PW-7) is trustworthy and inspires confidence which alone is sufficient to hold that the accused/appellant committed trespass along with rape with the prosecutrix (PW-7) and thereby committed offence under Sections 457 and 376(1) of the IPC. This is not a case of consent; the appellant categorically denied the incident; the prosecutrix version is supported by many other witnesses as discussed above, thus, I find no reason for false implication of the accused/appellant by the prosecutrix (PW-7), her husband Baldev (PW-8) and other witnesses.

16. After appreciating the evidence adduced by both the parties, I am of the view that the learned trial Judge after detail appreciation of the evidence held the appellant guilty under Sections 457 and 376(1) of the IPC. The judgment of conviction and finding of guilt of the accused/appellant warrants no interference. The trial Court sentenced the appellant as aforementioned. Looking to the act committed by the appellant as knowing well that the prosecutrix (PW-7) was all alone in the house, he reached lately at night at 1.00 a.m., he committed house trespass which became offence afterwards immediately when he caught hold the prosecutrix (PW-7) during putting the two wheeler inside the house while the prosecutrix (PW-7) was proceeding to take key of the said two wheeler from him and committed rape with her forcibly, as such, his entry to the house became house trespass followed by his act of forcible sexual intercourse; I am of the view that sentence awarded to the appellant is just and proper, it is not on higher side for the offence committed by the appellant. He does not deserve any lenient view on the point of sentence.

17. Consequently, the appeal being devoid of merit, is liable to be and is hereby dismissed.

18. The appellant is reported to be on bail. His bail stands cancelled. He be arrested and sent to jail forthwith to serve out the remaining part of the sentence imposed on him.