V.B. Raju, J.
1. This is a Criminal Appeal by one Parbha Ruda who was convicted by the learned Additional Sessions Judge of Ahmedabad at Himatnagar under Section 376 Indian Penal Code for having committed rape on one Bai Bhurki the wife of one Jiva and also under Sectione 451 Indian Penal Code for having committed criminal trespass by entering her room of the complainant Bai Bhurki with intention of having sexual intercourse with her.
2. [His Lorship after narrating the facts further observed:] In appeal it is contended by the Learned Counsel for the appellant that the offence of rape has not been proved that the appellant had not been sent to a medical officer for examination that his clothes had not been sent to the Chemical Analyser and that there is no evidence to show that the appellant had sexual intercourse with Bai Bhurki. It is therefore contended that the conviction for the offence of rape is not warranted and that further he has not committed the offence of criminal trespass, It is contended that in the charge the only intention alleged is the intention to commit rape that it is not alleged in the charge that the appellant had entered the room of the complainant with the intention of committing adultery and that therefore the appellant did not defend the case with a view to disproving the intention to commit adultery. It is also urged that the prosecution has not proved that Bai Bhurki is the legally married wife of Jiva. It is also contended that the appellant did not know and did not have any reason to believe that Bai Bhurki was the married wife of Jiva. It is also contended that as Bai Bhurki was a recent arrival to the town it is not likely that she would have committed adultery with a stranger. It is lastly contended that in the charge there is no reference to intention to insult or annoy the complainant.
3. [His Lordship after discussing the evidence further observed:] In these circumstances we do not see any reason to differ from the finding of the learned Additional Sessions Judge that the appellant had sexual intercourse with Bai Bhurki in her room at about 11-00 A.M. that morning. But a conviction for the offence of rape can be sustained only if the prosecution succeeds in proving that the intercourse was without the consent of Bai Bhurki or against her will. According to Bai Bhurki the appellant was armed with knife and threatened to kill her. But inspite of this according to Bai Bhurki she shouted and her cries could be heard outside. But it is not in evidence that her shouts had been heard by any person before Jiva arrived at the scene. Although in her evidence she has deposed that the appellant was armed with a knife there is no reference to the knife in her complaint which she lodged before the police. The medical evidence does not show any injury on her private part or on her person. Her clothes were not torn. There was no injury on the person of the appellant except the head injury nor is it the case of the prosecution that the clothes of the appellant were torn. Even according to the prosecution the injury on the head was not caused during the commission of the rape but was caused at the time when the appellant was trying to run away from the room after Jiva entered the room. The learned Additional Sessions Judge concedes that these circumstances might go to show that the intercourse was with the consent of the woman. The learned Judge held that there was no consent of the woman firstly because the complainant did know the accused before the day of the incident and secondly because the appellant had not stated that the sexual intercourse was with the consent of the woman. On these two grounds the learned Additional Sessions Judge found that sexual intercourse was without the consent of the woman. It may be that the woman had come to Himatnagar only two months before the incident. She has admitted that when she went to a nearby hotel to purchase 'Bidis she paid the money not to the Bidi shop-keeper but to the appellant.
4. When an accused person is charged with the commission of rape on grown up woman it is for the prosecution to prove that sexual intercourse was without the consent or against the will of the woman. It is not necessary for the defence to prove that sexual intercourse was with the consent of the woman In view of the above circumstances it is difficult to hold that the sexual intercourse was without the consent or against the will of Bai Bhurki. The conviction of the appellant under Section 376 I.P. Code must therefore be set aside together with the sentence passed on him under that section.
5. As regards the conviction for the offence under Section 451 Indian Penal Code it is contended that there is no reference in the charge to any intention to insult or annoy and that if the sexual intercourse was with the consent of the woman there would not be any intention to insult or annoy her. It is however urged by the learned Assistant Government Pleader for the state that in the charge it is stated that the intention was to commit the offence of rape and that it is not necessary to state anything more in the charge in regard to the intention. Section 441 Indian Penal Code which defines Criminal trespass reads as follows:
Whoever enters into or upon property in the possession of another with intent to commit an offence or to immediate insult or annoy any person in possession of such property or having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate insult or annoy any such person or with intent to commit an offence is said to commit criminal trespass.
The learned Assistant Government Pleader for the State however contends that it is not necessary to specify the criminal intention in the charge when the charge relates to the offence of criminal trespass. There is authority for this view in Karali Prasad Guru v. Emperor I.L.R. 44 Calcutta 358 at P. 364 where it is observed at follows:
Now it is well settled that to sustain a conviction under Section 456 it is not necessary to specify the criminal intention in the charge; it is sufficient if a guilty intention is proved such as is contemplated by Section 441: Koilash Chandra Chakarvarty v. Queen Empress I.L.R. 16 Clause 657 Balmukund Ram v. Ghansam Ram I.L.R. 22 Cal. 391 Premanundo Shaha v. Brindabun Chung I.L.R. 22 Cal. 994.
But a contrary view was taken in I.L.R. 1950 All. 163 (Abdul Salam v. Rex) where it was held that the charge should specifically state the intent which was alleged and if that intent is to intimidate insult to annoy any person in possession of the property the name of that person should also be stated.
6. It is always desirable that the charge should specify as far as possible the intent with which accused is alleged to have committed the offence. Section 537 Cri. Pro. Code provides that the defect in the charge if any should not vitiate the conviction unless prejudice had been caused to the accused by the defect in the charge. In the instant case it cannot in our opinion be said that the fact that the charge specified intention to commit rape and not the intention to annoy had caused any prejudice to the accused. Intention to annoy is usually a matter of inference from the circumstances and the accused had notice from the evidence of the circumstances sought to be relied on by the prosecution, there is therefore no merit in the contention that the conviction for criminal trespass is bad because the charge did not state that the intention of the accused was to annoy.
7. The next question which has to be considered is whether on the evidence the intention to annoy the person in possession of the room can be held to have been proved. It is contended that in the instant case even if it he assumed that the intention of the accused was to have sexual intercourse with the woman the latter was a consenting and willing party. We have already held that the prosecution has not proved beyond reasonable doubt that the sexual intercourse was without the consent or against the will of the woman. In such case the intention to annoy the woman cannot be referred.
8. But it is urged by the learned Asstt. Government Pleader that intention to annoy Jiva the husband of Bai Bhurki must be inferred and that the room was in the possession of Jiva although the latter had temporarily gone out. But this contention cannot be accepted because accused could not be credited with the intention to annoy Jiva knowing as he did that Jiva was not in the house. It is obvious that accused took advantage of the absence of Jiva in order to do an act so as not to be discovered by Jiva. Appellant may have of course known that Jiva may be annoyed if he came to know subsequently that he the appellant had intercourse with Bhurki in her room in his absence.
9. There is authority for this view in Emperor v. Chhotelal I.L.R. 40 Calcutta 221 and in King Emperor v. Balkrishan Narhar Velhankar A.I.R. 1924 Bombay 486. In the Bombay case there was dispute between two neighbors over what was alleged by the accused to be a party-wall between the accused and the complainant. It was there observed that as the accused did not enter the house at a time when the complainant was there and that as they took advantage of his absence to enter his house it was certainly a circumstance which tended to show that the intention of the accused was not to intimidate insult or to annoy the complainant an intention which if proved would bring the ease within the definition of criminal trespass in Section 441 of the Indian Penal Code. It has been held in Emperor v. Jangi Singh (1903) A.W. No. 230 and in Emperor v. Razid (1904) 27 All. 298 that such absence of the complainant showed a non-criminal intent which prevented the entry being criminal trespass under the section. In Emperor v. Chhotelal I.L.R. 40 Calcutta 221 it was held that if the accused succeeds in showing that his presence in the house was in consequence of an invitation from or with the connivance of a female living in the house with whom he was carrying on intrigue and that he desired that his presence there should not be known to the person in possession then he cannot be convicted of criminal trespass.
10. It is true that in the instant case the accused has not pleaded that he Was invited by Bai Bhurki but as already held in the circumstances it appears that the sexual intercourse was with the consent of Bai Bhurki It is clear therefore that Bai Bhurki had no objection to the presence of the appellant in her room for the purpose contemplated by the appellant. If Q enters a house in the absence of P and at the invitation of or with the connivance of a female resident of the house who is a widow or an unmarried woman the entry would not amount to 'criminal trespass even if the trespass was with the intention to have sexual intercourse with her because such intercourse would not amount to the offence of adultery and intention to annoy P cannot be inferred. In such a case the entry cannot be said to be unauthorised The appellant cannot therefore be convicted of the offence of criminal trespass on the ground that his intention was to insult or annoy Jiva the person in possession of the room.
11. It is however contended by the learned Assistant Government Pleader for the State that Bai Bhurki is the wife of Jiva and that even if the intention of the appellant was not to insult or annoy the complainant or Jiva his intention was to commit the offence of adultery and therefore he would be guilty of the offence of criminal trespass. In reply it is urged by the Learned Counsel for the appellant that the prosecution has not proved that Bai Bhurki is the legally married wife of Jiva and that in the charge there is no reference to any intention to commit the offence of adultery. The reference in the charge is to the intention to commit the offence of rape. It is urged that as intention to commit the offence of adultery is not staled in the charge it is a fatal defect in the charge. What is stated in the charge is that the intention of the appellant was to commit the offence of having sexual intercourse with Bai Bhurki without her consent or against her will. In such a case it is not strictly necessary to specify in the alternative that the intention in the alternative was to commit the offence of having sexual intercourse with Bai Bhurki albeit with her consent because intention to have sexual intercourse with consent is a minor intention compared to intention to have sexual intercourse without consent. The question here also is whether prejudice had been caused to the appellant by reason of the omission in the charge of any reference to intention to commit adultery. The appellant may have been under a reasonable impression that he was not required to meet the charge of intention to commit adultery. Further the prosecution has not actually led satisfactory evidence to prove that Bai Bhurki is the legally married wife of Jiva. Apart from the word of Bai Bhurki and Jiva and the evidence of Mansinh the boarding school boy that Jiva was living with his wife Bhurki there is no other evidence to prove that Bai Bhurki is the legally married wife of Jiva. The learned Assistant Government Pleader has not drawn our attention to any other evidence. When a person is charged with the commission of the offence of adultery with a woman or with doing an act with the intention of committing adultery with a woman it must be strictly and definitely proved that the woman is the legally wedded wife. The mere evidence of the woman and her alleged husband is not sufficient. See. I.L.R. 20 All 165 (R. v. Dalsingh) 5 Cal. 566 F.B. (Emp. v. Pitambar). Proviso to Section 50 Evidence Act provides that opinion evidence under that section is not sufficient to prove a marriage in a prosecution under sense 494 499 497 or 498 Indian Penal Code The same principle would apply to a prosecution under Section 451 Indian Penal Code where the intention alleged is to commit the offence of adultery. The evidence of the boring witness Mansinh would not therefore be sufficient to prove that Bhurki is the legally wedded wife of Jiva.
12. It is also contended by the Learned Counsel for the appellant that even if Bai Bhurki is the legally married wife of Jiva the appellant had no knowledge of the fact and that he had no reason to believe that she was the wife of Jiva. We do not accept his contention that in such cases the prosecution must not only prove the marriage but must also prove that the appellant had knowledge or had reason to believe that Bai Bhurki was he wife of Jiva.
13. As the prosecution has not satisfactorily proved that Bhurki is the wife of Jiva it is sot necessary to go into the question whether even if the intention of the appellant was to commit the offence of adultery he would still not be guilty by reason of the fact that Jiva was not present in the house at the time of the entry of the appellant into the room. We therefore hold that the conviction of the appellant under Section 451 Indian Penal Code is also not proper and we set aside the conviction of the appellant under Section 451 and also the sentence passed upon him under that section.
In the result the convictions of the appellant under Sections 376 and 451 Indian Penal Code and the sentences passed on him under these two sections are set aside.