Judgment:
R.C. Mishra, J.
1. This appeal has been preferred against the judgment dated 22-1-1993 passed by the Sessions Judge, Chhindwara in S.T. No. 102/1991, whereby the appellant was convicted under Section 457 of the IPC and sentenced to undergo R.I. for two years and to pay fine of Rs. 500/- and in default to further suffer R.I. for six months.
2. The prosecution case, in short, may be stated as under:
(i) In the intervening night of 17th and 18th December, 1990, in Village Noniya, Thaggulal (P.W. 4) had gone to his agricultural field leaving his wife - the prosecutrix (P.W. 1) and children at his residence. In the middle of night, the appellant effected an entry into the house and committed rape on the prosecutrix whose age at the relevant point of time was about 35 years. Hearing her cries, neighbourers, Baldas (P.W. 2), Balram (P.W. 6) and Jagdish (P.W. 9) rushed to the spot and apprehended the appellant.
(ii) It was on the report lodged by the prosecutrix that a case under Section 376 of the IPC was registered against the appellant. She was sent for medical examination. However, Dr. Smt. Sunanda Choudhary (P.W. 5) expressed her inability to give any definite opinion as the commission of rape in view of the fact that the prosecutrix was a married woman who already had four vaginal deliveries.
(iii) After due investigation, charge-sheet was submitted in the Court of JMFC, Chhindwara, who committed the case to the Court of Sessions for trial.
3. On being charged with the offences punishable under Sections 457 and 376 of the IPC, the appellant abjured the guilt and pleaded false implication due to animosity in the backdrop of the Panchayat Election.
4. To prove the charges, as many as 17 witnesses were examined by the prosecution including the prosecutrix (P.W. 1) and the alleged eye-witnesses to the incident, viz., Baldas (P.W. 2) and Balram (P.W. 6). The appellant also called Khemlal (D.W. 1) and Balkaran (D.W. 2) in support of his defence.
5. On consideration of the entire evidence on record, the learned Trial Judge, while recording finding of not guilty in respect of the offence of rape, convicted the appellant for the offence of lurking house-trespass by night. For this, he placed reliance on a Division Bench decision of this Court in State of M.P v. Thakur Prasad 1976 MPU 433.
6. Admittedly, the State has not preferred any appeal against acquittal of the appellant on the charge of rape. His conviction under Section 457 of the IPC has been assailed mainly on the ground that it was not legally sustainable in the light of finding that he had entered the house with the sole motive to have a consensual sexual intercourse with the prosecutrix.
7. Learned Trial Judge has assigned cogent reasons in Paragraph Nos. 6 to 13 of the impugned judgment for discarding the version of prosecutrix as to commission of sexual assault. However, in doing so he also rejected the defence of false implication as improbable. He further proceeded to hold that the sexual act of the appellant, though not covered under the definition of rape, clearly amounted to the offence of adultery. This conclusion was justified in the light of overwhelming evidence establishing the following facts:
(a) At the relevant point of time, the prosecutrix was the wife of Thaggulal(P.W.4).
(b) The appellant had the knowledge that the prosecutrix was the wife of another man.
(c) The intended intercourse was without consent or connivance of the husband.
8. In Thakurdas 's case (supra), A.P. Sen, J. (as His Lordship then was) quoted with approval the principle, as explained by Justice Ashutosh Mukherjee in the leading case of Karali Prasad Guru v. Emperor ILR 44 Cal. 358, that to sustain a charge of criminal trespass all that is necessary for the prosecution is to prove a guilty intention as contemplated by Section 441 of the IPC. The decision thus provides a complete answer in negative to the contention raised by the learned Counsel for the appellant. Accordingly, the impugned conviction deserves to be affirmed.
9. Coming to the question of sentence, it may be noted that the appellant has already suffered an imprisonment for a period of more than 7 months. The fine amount has also been paid. After the alleged incident, a considerable period of more than 16 years has already elapsed. In these facts and circumstances of the case, interest of justice would meet if the term of custodial sentence is reduced to the period already undergone by him.
10. Consequently, the appeal is allowed in part. The impugned conviction of the appellant for the offence punishable under Section 457 of the IPC is hereby maintained. However, his sentence of imprisonment is reduced to the period already undergone by him.
11. Appeallant Jhabbu is on bail. His bail bonds stand discharged.