KALYAN JYOTI SENGUPTA, J. ( 1 ) THE appellant before us has been convicted under section 448/457/376 of the Indian Penal Code. The appellant was arraigned for trial on the charge of rape allegedly committed upon the PW 2. viz. , Dilkumari and also for committing lurking house trespass. The prosecution story is summarised hereunder: The victim girl, viz. , Dilkumari is the wife of one Narad Muni, a Constable under the State Police Service. At the material time the husband of the victim girl and the accused were occupying two rooms side by side partitioned by a TChatai (bamboo splints ). On 16th December. 1980 at about 9- 30 p. m. when the above girl had fallen asleep after her husband went for his night duty at the Treasury Building at Balurghat in the District of West Dinajpur, she was alone in the room. The door of the room was closed and bolted from the inside. She had petticoat and panty beneath it and a brassiere on her breast on her wearing at that night. Inside the room a kerosene lamp was burning. Around 9-30 p. m. the appellant stealthily entered into the room where the victim was sleeping by making his way through the eastern portion of the above partitioned Chatait by cutting open the same by a bati (sharp metal instrument for dressing vegetables ). In this process the accused is alleged to have tress-passed in the room and he put off the burning lamp. Thereafter the appellant finding the victim asleep prostrated upon her put off the petticoat and pulled off the panty from one leg and thus he made it convenient to commit rape the victim girl. It is alleged the appellant then started sexual intercourse for about 6 or 7 minutes ended with discharge of semen inside the vaginal canal. Immediately after having finished of this sexual intercourse, the appellant started molesting her breast by removing the brassiere vigorously. At that time the appellant was smelling alcohol. The story of the prosecution is that she thought her husband had come back from duty and he was having inter-sourse with her. She was passing her menstrual period during that time and that was the first day of the period. She also asked the accused, presuming him to be her husband, where did he drank at that night. The story of the prosecution is that she thought her husband had come back from duty and he was having inter-sourse with her. She was passing her menstrual period during that time and that was the first day of the period. She also asked the accused, presuming him to be her husband, where did he drank at that night. It is alleged that the appellant imitating the voice of her husband, whispered that his colleagues had forced him to take alcoholic drinks. During this period she had no doubt in her mind that her husband was treating in that manner. It is her story further that her assumption was proved to be incorrect when he rekindled the lamp with a match stick. In the light of the kerosene lamp she could recognise that the appellant was not her husband and the appellant having realized that he had been recognized by the victim girl, unbolted opened the door of the room and fled away. Then and thereafter the victim girl started crying aloud and drew attention of all the neighbours viz. , PW7 China Sanki who came and thronged there. The PW-7 was only Nepali Knowing woman who could understand the reasons for the victim girlts crying and what had exactly happened to her, as he knew only Nepali language. Even the entire story was narrated by the victim, one Dilip who happened to be another colleague of the husband of the victim traced the appellant and brought him back arrested to his own room and there he was kept confined. When the appellant was being brought at the place of occurrence he alleged to have made extra- judicial confession saying, TIJ have done blunder, please spare me and forgive me, don't raise any hue and cry. On complaint being lodged by the victim girl along with her husband on the very same night, the Investigating Officer came and made various seizures and seized all the articles including the said Bati, Petticoat and Panty. She was medically examined by PW-4, viz. , Dr. Kalyan Kumar Nag. Report was obtained from him. The accused was taken to custody by Investigating Officer. It is said that the accused was also medically examined but the report of such medical examination was not produced nor the same was forthcoming. She was medically examined by PW-4, viz. , Dr. Kalyan Kumar Nag. Report was obtained from him. The accused was taken to custody by Investigating Officer. It is said that the accused was also medically examined but the report of such medical examination was not produced nor the same was forthcoming. ( 2 ) ACCORDINGLY, the charges were framed by the learned trial Judge under the aforesaid section. It is needless to mention that the accused pleaded not guilty. ( 3 ) THE Prosecution in order to bring home the charges, examined, as many as twelve witnesses. Upon analysis of the evidence both oral and material, as well as, documentary the learned trial Judge came to findings that the appellant is guilty of committing rape and also committing lurking house trespass. So he was convicted and sentenced to suffer rigorous imprisonment for eight years on the charges of rape and one year on the charges of lurking house trespass. Over and above the aforesaid imprisonment he was also sentenced to pay a fine of Rs. 100/- under section 376 of the IPC. in default, to suffer simple imprisonment for ten days. Similarly, he was also sentenced to pay fine of Rs. 10/- under charges of section 457 of the Indian Penal Code and, in default, to suffer simple imprisonment for two days. ( 4 ) UPON careful perusal of the judgment and sentence it appears to us that the basis of the learned trial Judges findings is on the evidence of the victim girl, and the corroborative evidence of the other witnesses, which had narrated circumstances after commission of the above offence. Moreover, the learned trial Judge has also relied on the so-called extra-judicial confession allegedly made by the accused. In order to examine the impugned judgment and order of its acceptability by us we are to inquire into and/or find out the following points: 1. Whether the appellant has criminally trespassed by entering stealthily in the room, where the victim girl was sleeping, by cutting open the partitioned Chatai or not. 2. Whether the appellant had sexual intercourse with the victim girl, viz. , Dilkumari or not. ( 5 ) WHETHER or not such intercourse was done by the appellant! accused against her will or not. 2. Whether the appellant had sexual intercourse with the victim girl, viz. , Dilkumari or not. ( 5 ) WHETHER or not such intercourse was done by the appellant! accused against her will or not. We shall discuss and decide the point number 1 in the manner as follows: 5 From the evidence of the victim girl PW-2 and PW-3, PW-4, PW-7 PW-8, PW-12 and the Investigating Officer it appears that the Chatai partition was cut open and the extent of such cut portion was sufficient enough to allow a crawling entry into the room where the victim girl was sleeping. It further appears from the evidence of PW-2 that the only door of the room was bolted and locked from inside. The victim girl was alone and none else were there to permit the appellant to enter into the lonely room. The Bati being the sharp weapon by which the above partition Chatai was cut open. One Hawai Chappal having blue straps was found. Of course, the said partition Chatai was removed by the landlord for re-building purpose after four or five days from date of occurrence. Therefore, it would appears from the evidence that the accused/appellant stealthily entered through the said cut open portion of the partition Chatai into the room. Therefore, it is beyond doubt proved that the appellant! accused trespassed into the room where the victim girl was sleeping. The learned trial Judge has correctly came to findings of the aforesaid fact and convicted him rightly. ( 6 ) THE learned lawyer, appearing for the appellant sumits that by means of Bati the partition Chatai cannot be cut open as it was curve shaped. He further submits that the Bati was not produced before the Court below. So it is very doubtful whether any Bati was found inside the room. He further submits that the appellant was very known person to the victim girl and her husband, so there was no question to trespass during the night. So the prosecution has not been able to prove the case of criminal trespass or the story of cutting open the partition Chatai. We have no hesitation to discard and reject this kind of absurd submission when overwhelming evidence beyond reasonable doubt proves the commission of offence of lurking trespass. The victim girl, PW-1 PW-3 and the 1. 0. So the prosecution has not been able to prove the case of criminal trespass or the story of cutting open the partition Chatai. We have no hesitation to discard and reject this kind of absurd submission when overwhelming evidence beyond reasonable doubt proves the commission of offence of lurking trespass. The victim girl, PW-1 PW-3 and the 1. 0. have stated that they have seen the cut open portion of Chatai, Bati, Chappal and also presence of the appellant. ( 7 ) NOW we shall discuss the point number 2. The evidence of the victim girl proves sexual intercourse having had by the accused/appellant. The medical examination of the victim girl and the chemical analysis report of the petticoat, panty proves the presence of semen and blood stain. The presence of the appellant during the night of the eventful day is also proved by the PW-3 who had heard whispering conversation between the appellant and the victim girl. Therefore, there was no other male person at the relevant time apart from the accused. So it is proved that it is the appellant only who having had sexual intercourse with the victim girl. The learned lawyer for the appellant submits that by the medical examination report there is no trace of rape even there is no proof of medical examination of the accused. He further submits that although, the accused was examined on the following day medically but no report is forthcoming showing that he had sexual intercourse with the victim girl. Therefore, question of committing rape upon the victim girl by the accused does not and cannot arise. We are unable to accept the submission of the learned lawyer for the appellant that the appellant did not have sexual intercourse by the appellant, with the victim. We have already observed that both material and oral evidence beyond reasonable doubt prove the factum of sexual intercourse with the victim girl by the appellant. ( 8 ) NEXT question remains whether such sexual intercourse was done by the appellant against the will and or implied consent of the victim girl or not. The prosecution version is that the victim girl thought that her husband was having sexual intercourse after return from duty from Treasury Building. Admitted position is that there was no resistance for the reasons whatever may be. The prosecution version is that the victim girl thought that her husband was having sexual intercourse after return from duty from Treasury Building. Admitted position is that there was no resistance for the reasons whatever may be. She allowed the sexual intercourse to continue for a period of six or seven minutes upon her alleged mistaken belief that her husband was having sexual intercourse. Even she had had alcoholic smell from the mouth of the accused. She then asked wherefrom the accused assuming him her husband had drunk. Therefore, at that time she had full consciousness to understand situation and further was in a position to form rational judgment. It is her further story when she had discovered in the kerosene lamp when she rekindled by match stick, her mistaken belief of her husband being present inside the room disappeared. ( 9 ) AT the first place we are not prepared to believe the story of Dilkumari that the accused pretended to be her husband and that is why she had sexual intercourse with him. There cannot be any reason to form mistaken belief because her husband she knew had gone for duty for whole of the night and he was unlikely to come back from duty so early. Further the only door and entrance of the room was closed bolted from inside. Unless she opened the door bolt none could enter. She was conscious and there she could easily recollect how her husband entered the room without she being called to open. It is difficult to believe this absurd plea and for excuse that she thought that her husband has prostrated upon her and inserting his penis into the vaginal canal and having sexual intercourse of six or seven minutes. A young girl who has lately married will not commit any mistake to identify her partner in his sexual life. A married woman has always inherent instinct to identify his male partner who has recently been married under no circumstances there can be any mistake on the question of identity of her husband. As the physique, appearance, peculiar characteristics, weight and even shape of the penis and the art of making love are always varied from one person to another. A married woman has always inherent instinct to identify his male partner who has recently been married under no circumstances there can be any mistake on the question of identity of her husband. As the physique, appearance, peculiar characteristics, weight and even shape of the penis and the art of making love are always varied from one person to another. Therefore, in case of coition one person can easily be distinguished from another as a particular young bride is familiar with the technic and art of making love of her husband. It is difficult to swallow this story of mistaken belief of her husband being present and having had sexual intercourse. Such mistake in identity, is completely contrary to normal human conduct. Therefore, we have no hesitation to hold that the victim girl allowed the said sexual intercourse to be done by the appellant with her implied consent. In other words it was not done against her will. ( 10 ) THEN question remains why did she then divulge and/or disclose this act to some other persons endangering her reputation and stigmatised to her character. Immediately after having sexual intercourse in order to save herself from this incident, she desperately entangled the accused so that she might have some explanation to her husband of the incident. It is submitted that the learned trial Judge has proceeded on the basis of the so called extra-judicial confession made by the appellant before various persons. It appears from the nature of extra-judicial confession the appellant has only said that. TIJ have committed blunder please spare me. T Nowhere the appellant has stated that he has committed rape. The appellant is charged with two counts of charge. Therefore, it is not clear which of the charges is deem to have been confessed - Whether the offence of criminal trespass or the offence of rape. In our view, this extra-judicial confession is not clear and nor sufficient to prove the guilt of the appellant either of the offence of criminal trespass or of rape. Therefore, the learned trial Judge ought not to have relied on the extra judicial confession when the same is not clear pointing to admit the guilt precisely. Therefore, we cannot uphold the findings and conviction made by the learned trial Judge as per as offence of rape is concerned. Therefore, the learned trial Judge ought not to have relied on the extra judicial confession when the same is not clear pointing to admit the guilt precisely. Therefore, we cannot uphold the findings and conviction made by the learned trial Judge as per as offence of rape is concerned. Accordingly, we set aside and/or quash the conviction under section 376 of the Indian Penal Code but we confirm the conviction under section 457, IPC of criminal trespass. The bail granted by this Court is cancelled. The appellant is directed to surrender before the Chief Judicial Magistrate, West Dinajpur at Balurghat to serve out the sentence. Thus the appeal is allowed partly without any costs. Appeal allowed partly.