V. P. MATHUR, J. ( 1 ) THESE two appeals arise out of the same judgment and order passed by Mr. R. K. Saksena, the then III Addi. Sessions judge of Shahjahanpur on 6. 12. 1978. Both Nanhey Lal and Ram Bahadur stood trial before the learned Judge on a charge under section - 376 I. P. C. for having committed rape on a married woman Smt. Premwati in the night between 26/27a. 1975. The learned Judge believed the prosecution witnesses and passed the impugned order convicting the two appellants on the charge and sentencing each one of them to rigorous imprisonment for five years. This judgment shall dispose of both the appeals. ( 2 ) THE occurrence took place in village Kheria Rasoolpur, which lies within the area of police station - Sindhauli of district - Shahjahanpur, Smt. Premwati - Prosecutrix is the wife of Ram Lal (P. W. 14) Nanhey Lal accused also belonged to the same Nanhey Lal Vs. State of U. P. IMPORTANT POINT If a lad y was c rying while rap e was committed, she could not be said to be a consenting party. village. The other accused Ram Bahadur, who was a peon attached to the Amin of Tahsil Powayan and was visiting this village also for realizing government dues, was at the time of this occurrence and for sometime prior to it temporarily living in this very village. The evidence further shows that Smt. Premwati (P. W. 1) had already five children when this occurrence took place, and she was carrying a pregnancy of about 4 or 5 months. Further evidence on the record, which has been believed by the learned Additional Sessions Judge, and which there is no reason to discard, is that in the night in question there was a Drama Show in neighbouring village Imilia at a distance of about a mile from village - Kheria Rasoolpur. This is admitted to one of the accused and there is direct testimony of witnesses Nanku (P. W. 2), Sahadat Ali (P. W. 3), Ramlal (P. W. 4) and Smt. Premwati (P. W. 1 ). This is admitted to one of the accused and there is direct testimony of witnesses Nanku (P. W. 2), Sahadat Ali (P. W. 3), Ramlal (P. W. 4) and Smt. Premwati (P. W. 1 ). It is already well known and is not disputed that entertainment - Shows are very seldom held in villages and therefore, whenever such an opportunity is available to the village people to witness Drama shows or other musical shows, almost every male member of the village community goes to attend it. There is definite and direct evidence of the prosecution witnesses Premwati, Nanku, Sahadat Ali and Ramlal that on that night also Nanku. Sahadat ali and Ramlal had gone to Imilia to witness the Drama. There is also evidence of Ramlal and Premwati to the effect that the two accused - Nanhey Lal and Ram Bahadur had accompanied Ramlal to Imilia. The Drama continued for long after mid night when Ramlal returned from there. Prior to it, however the two accused persons Nanhey lal and Ram Bahadur left the show and directly came to the house of the prosecutrix. It may be mentioned here that according to the evidence on the record, Ramlal had told Soot. Premwati not to chain the outer door from inside so that when he comes back from the Drama, he has easy entrance without disturbing her. This story is very natural. Ramlal is a poor man carrying out the profession of Bharbhooja to supplement his income from a major agricultural area. There was, therefore, no occasion for any theft at his place. Moreover, the occurrence took place in the month of April and when the woman Soot. Premwati and her five children were inside the eldest being a daughter aged about 9 years, it would not have been easy for any thief to have done any mischief inside the house. Hence Premwati left the outer door unchained, According to the prosecution version, since Rambahadur and Nanhey lal had accompanied Ramlal, to Imila, they must have naturally known that the lady will leave the outer door unchained from inside. Therefore, it is contended that they found a good opportunity to enter the house and to commit rape upon this lady in the absence of her husband. The prosecution story is that these two persons suddenly came in from the door which was not locked. Therefore, it is contended that they found a good opportunity to enter the house and to commit rape upon this lady in the absence of her husband. The prosecution story is that these two persons suddenly came in from the door which was not locked. They pounced upon the lady, who was, sleeping on a charpoy, bodily lifted her and placed her on the ground in supine position. When she tried to cry, her mouth was gagged with a chadar by one of the accused namely Rambahadur. Then Nanheylal committed rape on her against her will and without her consent. After he had finished, he changed the position with Rambahadur who had sexual intercourse with this lady while Nanheylal tried to keep her gagged. It, however, appears from the testimony of the lady that in this exchange of position the gag somehow was removed from her mouth and she cried out. Nanku and Sahadatali (P. Ws. 2 and 3) who were also returning from the Drama-show from Imilia, heard the cries and entered into the house and saw Rambahadur committing rape upon the lady. They were taken aback. Meanwhile Rambahadur got up and both the accused ran away from the spot. One of them was possessed of a spear and the other of a lathi. The lady tried to hold the ballam but she was pushed aside and the accused persons ran away from the spot after brandishing their weapons. ( 3 ) RAMLAL came home after that. He was informed by his wife about the rape by the two accused. Due to night he did not dare go to the Thana immediately. He waited and started for the Thana in the morning of 27. 4. 1976 and after covering a distance of five miles be reached there and lodged the report at 10. 05 A. M. Smt. Premwati was sent for medical- examination. The dhoti that she was wearing, was taken into custody and sealed and sent for analysis and vide Ext. Ka 3 spermatozoa was found on it. Of course the medical examination did not give any positive evidence of rape, because she was a married woman and had borne children and was pregnant even at the time of this occurrence. ( 4 ) THE contention of the accused persons was that the whole case was false and fabricated. Ka 3 spermatozoa was found on it. Of course the medical examination did not give any positive evidence of rape, because she was a married woman and had borne children and was pregnant even at the time of this occurrence. ( 4 ) THE contention of the accused persons was that the whole case was false and fabricated. Nanheylal took the stand that the grove of Nanku witness is just adjacent to his agricultural land and it cause damage to his crop and therefore his relations with Nanku are strained. This fact was never put to Nanku when he entered the witness box and Nanku said that he did not have any enmity with any of the accused. Similarly Nanheylal took the stand that a she-buffalo of Ramlal (P. W. 4) had entered his agricultural field and damaged the crop upon which he had given a beating to Ramlal (P. W. 4) and for that Ramlal is inimical to him. When Ramlal (P. W. 4) entered the witness box as P. W. 4 no such question was put to him. ( 5 ) IN a similar manner Rambahadur took the stand that in his capacity as Amins peon, he had arrested Ramlal (P. W. 4) for non-paymant of Taqavi. This fact was not put to Ramlal when he entered the witness box. Rambahadur also took the stand that he had seized the cattle of nankus father and while he he was taking them to the cattle pound they were forcibly snatched from him. To Nanku no such suggestion was made. It, therefore, clearly appears that the defence that Nanhey lal and Rambahadur put forth in support of their plea of false implication on the basis of enmity is a made up and false defence. There was no enmity between the two accused persons on the one hand and Ramlal, Nanku, Sahadat Ali and Smt. Premwati on the other. ( 6 ) IT is not a case in which the accused came forward with a story that they had sexual relations with Smt. Premwati by her consent or as a result of previous liaison. It is a clear cut case in which on the prosecution side there is clear allegation of rape and on the defence side the whole story is challenged as fabricated and false. It is a clear cut case in which on the prosecution side there is clear allegation of rape and on the defence side the whole story is challenged as fabricated and false. The very fact that Nanku and Sahadat ali entered the home and saw Rambahadur committing rape upon Premwati, and Nanhey lal sitting by her side trying to hold her down, clearly shows that they had heard the shrieks of the lady and hence they had entered the house. If the lady was crying, she could not be a consenting party. The testimony of witnesses Nanku and Sahadat ali gives complete support to the story put forth by Smt. Premwati, and the statement of Ramlal also furnishes corroboration to her testimony, because she immediately after the occurrence narrated the facts to Ramlal. ( 7 ) THE learned Additional sessions Judge has written a very elaborate judgment discussing all the aspects of the matter. It is true that the lady could not put up much of struggle, hence did not suffer any injury. The reason is apparent. The rapists were two in number. One had pinned her down and gagged her mouth while. the other was committing rape on her. She was already pregnant and she knew about it. Therefore, in order to ensure that her child in the womb does not suffer any injury or her pregnancy is not damaged, she might not have put up stiff resistance. But in the special circumstances of the case, it will not mean that she was a consenting party. ( 8 ) I am in agreement with the learned Additional Sessions Judge that the charge under Section 376 I. P. C. has been rightly established against both the accused persons and they were correctly convicted on that charge as such. ( 9 ) COMING to the question of sentence, five years rigorous imprisonment has been awarded. A married woman carrying a child in her womb had been violated by two lustful adults at a time, when they knew that her husband was away. They deserve a severe punishment and the sentence awarded to them cannot, therefore, be said to be in any way harsh. The two appeals are, therefore, dismissed. The appellants are on bail. Their bail bonds and sureties shall stand discharged. They shall surrender and be taken into custody forthwith to serve out their sentences. .