D. K. JAIN, J. ( 1 ) APPELLANT Jhingai alias Chingai son of Hardeo, stands convicted and sentenced to rigorous imprisonment for three years and a fine of Rs. 1,000. 00 and, in default of payment of fine, to undergo further rigorous imprisonment for three months under Section 376 of the Indian Penal Code, by the Third Additional Sessions Judge, Durg, in Sessions Trial No. 34 of 1986, decided on 24-7-1987, which is under challenged in this appeal. ( 2 ) ACCORDING to the prosecution. prosecutrix punnibai wife of Harilal Satnami, aged about 35 years, was living in a hut at Khursipar Gate, Hazarilal was. working in S. S. P. Appellant Jhingai was the landlord of the hut, in which Punnibai was residing with her two children, one aged about 4-5 months and the other was aged about 2 1/2 years. Punnibai had delivered a child, which was aged about 4-5 months at the time of the incident, after undergoing a major operation. Punnibai had gone to her parents' place at Raipur and she returned along with her children, on the day of the incident i. e. , 23-8-1985, at about 4. 30 p. m. and at that time, her husband was not in the house as he had gone to visit a friend in a different village. When Punnibai was sleeping in her hut after closing the doors from inside, then, at about 9-30 in the night, appellant Jhingai entered her hut after breaking open the back door of the hut and came inside and he shut her mouth by placing a cloth over it as a result of which, she awoke and tried to raise an alarm, but her mouth had been shut and, thereafter, the appellant committed rape on her against her wish, as a result of which, there was profuse bleeding from her private-part. The appellant, who was living nearby, then left her and ran away. Punnibai (P. W. 2) then called her neighbour Lalitabai and, informed her that she had been raped by Jhingai. Lalitabai (P. W. 5), thereafter; took Punnibai to Chhaoni police-station where she lodged the report (Ex. P-2) the same night at 22 Hours. The husband of Punnibai returned back after two days of the incident, as he had gone to visit some friend. On the report (Ex. Lalitabai (P. W. 5), thereafter; took Punnibai to Chhaoni police-station where she lodged the report (Ex. P-2) the same night at 22 Hours. The husband of Punnibai returned back after two days of the incident, as he had gone to visit some friend. On the report (Ex. P-3) lodged by Punnibai, an offence under Section 376 of I. P. C. , was registered at Crime No. 940/85. Punnibai was sent for medical examination to District Hospital, Durg, the same night of the incident, i. e. 23-8-1985, and examined by Lady Doctor Khan (P. W. 1 ). On, examination, Lady Doctor Khan (P. W. 1) as per her report (Ex. P1), found that there was tear on the left lateral vaginal wall and left side of cervix and the would was about 3" long, which according to this witness, could be caused by forceful intercourse and the injury was within 24 hours. Punnibai had been admitted in the hospital for treatment. Two sides from the vaginal smear had also been prepared by the Lady Doctor and the same had been seized and handed over to the Constable. The clothes of Punnibai had also been examined by the Lady Doctor Khan (P. W. 1) on 2-91985 and she had seen blood marks at many places over them. She thereafter, sealed the clothes and handed them over to the Police Constable. During investigation, the clothes, i. e. , one full sleeve shirt, one terry cloth full-pant and one cotton underwear, were seized in the presence of witnesses from the present appellant Jhingai on 23-8-1985 in night at 23-00 hours, as the same were having blood stains on them. He was also Sent for medical examination and was examined by Dr R. D. Sharma (P. W. 6), who vide his report (Ex. P-7), found that he was, capable of performing sexual intercourse. The clothes of Jhingai, sent in a sealed packet by the police, were also examined. by Dr. Sharma and he found blood stains at a number of places - as per his report (Ex. P-8), Dr. Shama also examined one dark blue coloured Sari, which was seized from the spot, and had advised that the aforesaid articles be sent for chemical examination. . The articles seized in the case, were sent to the Chemical Examiner; F. S. L. , Sagar and, as per report (Ex. P-8), Dr. Shama also examined one dark blue coloured Sari, which was seized from the spot, and had advised that the aforesaid articles be sent for chemical examination. . The articles seized in the case, were sent to the Chemical Examiner; F. S. L. , Sagar and, as per report (Ex. P-12) of the Chemical Examiner, presence of blood was confirmed on the clothes seized from the accused. No seminal stains and spermatozoa could be detected on blood-stained earth seized from the spot, petti-coat, cloth, Sari and pubic hair of the prosecutrix. After completing the investigation, the accused-appellant Jhingai was put up for trial. ( 3 ) ACCUSED-APPELLANT Jhingai abjured his guilt before the trial Court. The defence was that Punnibai was well known to him (accused) and there was dispute about the hut and Punnibai was trying to obtain a Patta in respect of the same and, so he had been falsely implicated. It was also his defence that, on 23-8-1985, he was on duty from 2-00 p. m. till 10-00 in the night. He was relieved from the duty at 10-10 in the night and when he reached home after the duty at about 10-30, he was arrested by the police at about 11-30 in the night. Two witnesses had been examined in defence. ( 4 ) THE submission, on behalf of the appellant, was that the prosecutrix Punnibai was a married lady, aged about 35 years, and had children also and, so she could not have been over-powered and raped against her wish. It was also submitted that Punnibai belonged to Satnami Caste and she had changed her husband and so, her conduct and character was also questionable. Absence of external injuries on the person of the prosecutrix, was also indicative of the fact that rape had not been committed on her against her wish, because, had she resisted, then there should have been some external injuries found on her person, but no external injuries had been found by the Lady Doctor - who had examined her (Punnibai) It was further submitted that the report had probably been lodged by the prosecutrix - so that she could get medical aid, because she had Some injury in her vagina. It was also submitted that presence of tear in the Vagina was not indicative of forcible sexual intercourse, but could also result due to passionate embrace at the time of committing sexual inter-course. Appellant was visiting Punnibai and was sometimes, having meals with her and was having illicit connection also - as was the version given by Lalitabai (P. W. 5) who was also living near the hut of Punnibai. The submission vas that the appellant had not committed any rape on Punnibai on the date of the incident, because he was on duty at the relevant time and in the alternate, the submission was that, in case; it was held that he had committed sexual intercourse with Punnibai, then the same had been committed with her consent and not against her wish. Regarding sentence, the submission was that the same was too severe and uncalled for. Reliance was placed on State Government, Madhya Pradesh v. Sheodayal Gurudayal, AIR 1951 Nag 8. ( 5 ) ON behalf of the respondent - State the submission was that though Punnibai was a married lady having children, it is clear from her evidence that; at the time of the -incident; she was sleeping on a cot along with her children, at the time of the incident, and, so, there was no question of receiving any external injury, and therefore absence of external injury on her person would not indicate that rape had hot been committed on her. It was also submitted that Punnibai (P. W. 2) had clearly stated in her evidence that the accused had forcibly committed rape on her. It was also submitted that there was nothing brought out in the cross-examination of the prosecutrix Punnibai to show that she was a lady of loose character and just because she happened to be belonging to Satnami Caste, it should not be said that she was not having a good character; because, the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or at the time of imposition of the sentence. On behalf of the respondent - State, it was further submitted that the sentence imposed on the appellant, was below the minimum sentence prescribed for the offence which was seven years and; hence, vide order dated 12-10-1987, this Court had also ordered a show cause notice to be issued against the appellant as to why the sentence awarded to him under Section 376 of the Indian Penal Code, may not be enhanced. In view of this, the submission was that the sentence awarded to the appellant, deserves to be enhanced and this appeal, against his conviction and sentence under Section 376 of the Indian Penal Code, was liable to be dismissed. ( 6 ) RECORD of the case has been carefully perused. The evidence of the material witnesses was also read over by the learned counsel for the appellant during the course of arguments. From the evidence of Punnibai (P. W. 2), it is clear that she was previously married to one Khunsuram of village Khudmuda and that, now Hazari Prasad is her husband and that, the first wife of Hazari Prasad is living with her children near Balaknath Mandir of Khursipar. According to Punnibai, Hazari Prasad had gone with 'baraties' and made her his wife by putting on bangles in her hands. Thus, merely because Punnibai has made Hazari Prasad her husband, from that, it cannot be inferred that she is a lady of loose character, because even according to their caste and custom, they can change their husband. ( 7 ) LALITABAI (P. W. 5) had tried to show in her evidence that the accused was regularly visiting Punnibai and that, they were having relations like husband and wife, but this version appears to have been given by Lalitabai only to help the accused who was also visiting her house, Lalitabai and been declared hostile on behalf of the prosecution and had been cross-examined also and, during her cross-examination, she had clearly stated that Punnibai had been sitting outside the house and weeping and that; if was also correct that Punnibai had told her that Jhingai had forcibly committed rape on her. It is also clear from the version of Lalitabai that, immediately after the incident, Punnibai had informed her that Jhingai had committed rape on her and, thereafter, Lalitabai had herself taken Punnibai to the police station where Punnibai had lodged the report (Ex. It is also clear from the version of Lalitabai that, immediately after the incident, Punnibai had informed her that Jhingai had committed rape on her and, thereafter, Lalitabai had herself taken Punnibai to the police station where Punnibai had lodged the report (Ex. P3) at 10-00 p. m. whereas, the incident had taken place at about 9-30 p. m. which means that the report was promptly lodged within half an hour of the incident. Punnibai was medically examined on the same night by the Lady Doctor Khan (P. W. 1) at 11-00 p. m. , the same right and she had found that there was tear on left lateral vaginal wall and left side of cervix and that the wound was about 3" long and that, it was a fresh tear. It is also clear from the evidence of Lady Doctor Khan that there was profuse bleeding from her cervix and vagina and that; in her opinion, this injury, found on her private part, could have been caused by rape having been committed on her. According to the Lady Doctor Khan, she had not found any external injury on the body of Punnibai. The absence of external injury, on the person of the victim, is not always indicative of rape having been not committed. In the present case, it is clear from the version of Punnibai (P. W. 2) that she was sleeping on a cot (Palang) at the time of the incident and, so, there was no likelihood of receiving any external injury on her person - as was rightly submitted on behalf of the respondent State. ( 8 ) FROM the version of Punnibai (P. W. 2), it is clearly established that it was the accused-appellant Jhingai who had committed forcible rape an her against her wish, as a result or which, there was much bleeding from her private part, as is also established from the fact that the clothes, which had bean seized from her; and which she was wearing at the time. of the incident; were found to be blood stained as per the report (Ex. P-12) of the Chomical Examiner, F. S. L. , Sagar. of the incident; were found to be blood stained as per the report (Ex. P-12) of the Chomical Examiner, F. S. L. , Sagar. It is all clear from the evidence that the clothes, which the accused Jhingai was wearing at the time of the incident, were also seized from him within a couple of hours of the incident, and the same were also found to be having blood stains, for which no explanation was offered by the appellant. The learned trial Judge had also considered this aspect of blood stains having been found on the clothes of the prosecutrix Punnibai and also on the clothes of accused Jhingai in para 16 of Judgment but the finding of the trial Judge that seminal stains had also been found on the said articles; in the report (Ex. P-12) of theChemical Examiner, appears to be incorrect, because, a perusal of the said report (Ex. P-12), clearly indicates that no seminal stains and spermatozoa could be detected an Articles Al, A2, A3, B, C, D2, D3, E and F. However, merely because seminal stains and spermatozoa could not be detected on the aforesaid Articles, would not go to show that rape had not bee committed out the presecutrix Punnibai by the accused-appellant Jhingai, because, the version of Punnibai that the accused had committed forcible rape on her, resulting in profuse bleeding from her private part also stands fully corroborated From the evidence of the Lady Doctor Khan (P. W. 1), who had examined Punnibai within a couple of hours of the incident and she had found a fresh tear, 3" long, on the left lateral vaginal wall and left side of the cervix, which, according to her, could have been caused by forceful intercourse. The blood stains found on the shirt, full-pant and underwear of accused Jhingai, also go to corroborate the version of the prosecutrix, and, more so, because the said clothes were promptly seized from the accused Jhingai, on the same night, at about 1l-00 p. m. , as per seizure-memo (Ex. P-4), within a couple of hours of the incident. Considering the aforesaid evidence on record, we are unable to accept the submission, made on be half of the appellant by his learned counsel, that sexual intercourse, if any, was committed with the consent of the prosecutrix Punnibai. P-4), within a couple of hours of the incident. Considering the aforesaid evidence on record, we are unable to accept the submission, made on be half of the appellant by his learned counsel, that sexual intercourse, if any, was committed with the consent of the prosecutrix Punnibai. We are also unable to agree with the submission of the learned counsel for the appellant, that the tear found in the private part of Punnibai by the Lady Doctor, did not-indicate forcible inter-course, or that the same could have resulted an a passionate embrace. There is absolutely no reason to accept the contention of the learned counsel for the appellant that the appellant was having illicit connection with the prosecutrix Punnibai from before and that, he had committed sexual intercourse at the time of the incident, with the consent of Punnibai. The learned trial Judge has also given valid and cogent reasons for not accepting the aforesaid sub-mission and the defence version and we see no reason to disagree. Besides this, from the evidence on. Record, it is clear that the appellant had entered into the hut of Punnibai in the night at about 9-30 p. m. , after breaking open the back door of the hut; and the fact that the back door was found broken is also clearly established from the evidence on record. ( 9 ) THE submission, on behalf of the appellant, that the prosecutrix Punnibai, who is aged about 35 years, could not have been overpowered by the appellant; also cannot be accepted-looking to the fact that prosecutrix had delivered a child after a major operation and this child was about 4-5 months old at the time of the incident. The submission, made on behalf of the appellant that Punnibai had lodged the report merely for her own safety to get prompt medical aid, also cannot be accepted looking to the evidence on record. It is clear from the evidence that, immediately after the incident, Punnibai had informed her neighbour Lalitabai that Jhingai had committed rape on her and which fact was also admitted to be correct by Lalitabai (P. W. 5) and also because, it was Lalitabai herself who had accompanied the prosecutrix to the police-station where the F. I. R. was promptly lodged within half an hour of the incident and Punnibai was also medically examined within a couple of hours of. the. incident. the. incident. The trial Judge was, therefore, Perfectly justified in reaching the conclusion that it was the accused-appellant. Jhingai alias Chingai, who had committed the offence of rape on the Prosecutrix without her consent. We see no reason to disagree. ( 10 ) AS regards the sentence, the submission, on behalf of the appellant, was that same was too severe and the same should be reduced. As against this, the submission, on behalf of the respondent-State, was that this Court had suo motu, while admitting the appeal and issuing notice to the respondent-State, had also issued a notice to the appellant to show cause as to why the sentence be not enhanced, as per order dated 12-10-1987, and it was, therefore, submitted that the sentence of the appellant should be enhanced to at least seven years' rigorous imprisonment, which was the minimum which could be awarded for the offence tinder Section 376 of the Indian Penal Code. ( 11 ) THE reason given by the learned trial Judge, for awarding less than the minimum sentence prescribed for the offence under Section 376 of IPC was the social status to which the parties belong, but this reason is wholly irrelevant and had no bearing in the matter of imposition of the sentence and we do not accept the said reason given by the learned trial Judge, as justified or adequate, for awarding the less than the minimum sentence prescribed for the aforesaid offence. However, considering the fact that the offence had taken place on 23-8-1985, i. e. about nine years back; and also looking to the fact that the notice for enhancement of the sentence had been issued by this Court almost about seven years back, in our considered opinion, it would not be just and proper to enhance the sentence already awarded to the appellant by the learned trial Judge. We would, however, while dismissing this appeal, confirm the conviction and sentence of rigorous imprisonment for three years and a fine of Rs. 1000. 00, and, in default of payment of fine, to undergo further rigorous imprisonment for three months under Section 376 of the Indian Penal Code, awarded by the learned trial Judge in Sessions Trial No. 34 of 1986, decided on 24-7-1987. ( 12 ) APPELLANT is reported to be on bail. His bail bonds shall stand cancelled. 1000. 00, and, in default of payment of fine, to undergo further rigorous imprisonment for three months under Section 376 of the Indian Penal Code, awarded by the learned trial Judge in Sessions Trial No. 34 of 1986, decided on 24-7-1987. ( 12 ) APPELLANT is reported to be on bail. His bail bonds shall stand cancelled. Appellant is directed, through his counsel, to appear before the Chief Judicial Magistrate, Durg, on 14-9-1991 to hear the result of this appeal and to undergo the sentence awarded to him as aforesaid. Order accordingly. .