JUDGMENT 1. - In the month of February, 1994 PW 1 Smt. Geeta Bai, a widow of about 35 years of age, used to work as labourer on a construction work. PW 8 Beeram and PW 9 Ram Kalyan were the other labourers. It is alleged that Beeram appellant had gone to the place of the work of construction in day time on 2.2.1994 and misbehaved with Smt. Geeta Bai. Smt. Geeta Bai protested against such behaviour of PW 8 Beeram. The appellant was allegedly in drunken condition at that time. On the intervention of PW 9 Ram Kalyan, the appellant retired from that place. 2. The prosecution's further case is that when during the intervening night of the second and third February, 1994 Smt. Geeta Bai was sleeping in her room at Village Chandipur. Beeram appellant effected his entry into her room by removing the Sankal, which was put on the doors and raped Smt. Geeta Bai. It is further alleged that the hue and cries raised by PW 1 Geeta Bai attracted her mother PW 2 Smt. Sushila, another lady PW 3 Gulab Bai and her brother PW 7 Mangi Lai to her house. When these witnesses reached the house of Smt. Geeta Bai, the appellant ran away from the place of occurrence. It is further alleged that in the morning when Smt. Geeta Bai was going to report the incident to the police the appellant intercepted her on the way and threatened her with dire consequences. Any way, Smt. Geeta Bai was successful in lodging the report at Police Station Jawar (District Jhalawar) on 8.2.1994. 3. On the basis of the written report Ex. P2, presented by Smt. Geeta Bai before him, PW 6 Bhanwar Singh SHO Police Station Jawar registered Crime No. 13/94 under Sections 450 and 376, IPC against the appellant. In the course of investigation Smt. Geeta Bai was produced before PW 4 Dr. Ramesh Chand Dube for medical examination. Dr. Dube opined that Smt. Geeta Bai was a lady of about 20 years. However, we could not give any definite opinion regarding the commission of any rape upon her. He obtained vaginal swabs for medical examination. The clothes which Smt. Geeta Bai was allegedly putting, on, on her person at the time of commission of the rape upon her by the appellant and which clothes contained some semen stains upon them were seized. However, we could not give any definite opinion regarding the commission of any rape upon her. He obtained vaginal swabs for medical examination. The clothes which Smt. Geeta Bai was allegedly putting, on, on her person at the time of commission of the rape upon her by the appellant and which clothes contained some semen stains upon them were seized. The seized clothes and the vaginal swab were though forwarded to the Chemical Examiner at State Forensic Science Laboratory, Jaipur yet, undisputedly, no report from the Chemical Examiner/ Assistant Director of the said laboratory, was produced either before the Trial Court or before this Court. 4. On trial of the appellant for the offences under Sections 376 and 450, IPC, the learned Additional Sessions Judge, Camp Aklera, (District Jhalawar) held the appellant guilty, convicted him, therefor, and sentenced him to R.I. for 7 years and fine of Rs. 1,000/- for the offence under Section 376, IPC and R.I. for 5 years and fine of Rs. 1,000/- for the offence under Section 450, IPC vide his judgment and order under appeal dated 12.12.1995 made in Sessions Case No. 218/94 (State v. Beeram Lal) . 5. The main contention of the learned Counsel for the appellant is that the version, given by PW I Smt. Geeta Bai about the commission of rape upon her by the appellant, has not been endorsed by her own mother PW 2 Smt. Sushila, the other lady PW 3 Gulab Bai and her young brother PW 7 Mangilal. It was further submitted that the FIR was much belated and that commission of rape upon Smt. Geeta Bai is not supported by the medical evidence on record as well as the learned Counsel for the appellant thus, submitted that no charge either under Section 450 or under Section 376, IPC, is proved against the appellant beyond reasonable doubt. 6. In any case, the learned Counsel urged, if it be accepted that the appellant had gone to the house of Smt. Geeta Bai, then it was on the invitation of the lady and, therefore, no offence can be said to have been committed in the present case. 7. The learned Public Prosecutor, on the other hand, submitted that in appreciating the testimony of the prosecutrix, it has to be kept in mind that in day there had been some incident wherein the appellant had misbehaved with Smt. Geeta Bai. 7. The learned Public Prosecutor, on the other hand, submitted that in appreciating the testimony of the prosecutrix, it has to be kept in mind that in day there had been some incident wherein the appellant had misbehaved with Smt. Geeta Bai. The learned P.P. further submitted that on evidence it is difficult to disbelieve that during that very night the appellant had visited house of the prosecutrix in dead hours and had committed offences against her. 8. I have considered the rival submissions and have gone through the statements of the witnesses, examined in the present case. PW 8 Beeram and PW 9 Ram Kalyan are those witnesses who were examined to prove the incident which had taken place at the construction site. PW 9 Ram Kalyan has stated that about mid-day the appellant had gone to the construction site where Smt. Geeta Bai was working, that he was in drunken state at that time and that he had abused Smt. Geeta Bai. There is no reason for which the testimony of this witness may be discarded. Even the hostile witnesses I'W 9 Ram Kalyan has admitted that the appellant had reached the construction site in day time. It is thus proved that prior to the alleged incident in the night, there had certainly been some incident wherein the appellant had abused and threatened Smt. Geeta Bai. 9. Now, so far as the incident which allegedly occurred in the night is concerned, the evidence on the same, consists of mainly 4 witnesses, namely, PW I Smt. Geeta Bai, PW 2 Smt. Sushila, PW 3 Smt. Gulab Bai and PW 7 Mangi Lal. PW 1 Smt. Geeta Bai is the prosecutrix herself. She has stated that she had been married with one Babu Lal and she had given birth to three children, two sons and one daughter, from him. Both the sons were alive. About 5 years back, prior to the incident, her husband had died and thereafter her father-in-law also died. The elder brother of her husband had also died. Her husband used to work as Pujari at Mandir of Nanya Khedi. After the death of her husband she had come to Village Chandipur where her brother Mangilal used to live. At Village Chandipur she used to start supporting herself and her children by doing manual work. The elder brother of her husband had also died. Her husband used to work as Pujari at Mandir of Nanya Khedi. After the death of her husband she had come to Village Chandipur where her brother Mangilal used to live. At Village Chandipur she used to start supporting herself and her children by doing manual work. With regard to the incident she stated that on the day of occurrence she had been working with Kalyan Karigar and when she had gone to take water from Kanjibara (cattle house), the appellant reached there and misbehaved with her. With regard to the incident which allegedly took place in the night she stated that when she was sleeping in her house, after having closed the doors, the appellant lifted the doors and effected his entry into her house and committed rape on her. She added that the appellant was armed with a knife with which he had threatened her. She further added that when the appellant was leaving her house she raised alarm whereupon her mother PW 2 Smt. Sushila Bai, PW 3 Gulab Bai another lady, her brother Mangilal and her sister-in-law Shyama Bai reached from the adjoining houses but during the meanwhile the appellant had run away from the place of occurrence. The question is as to what extent her testimony can be believed and relied upon. 10. PW 2 Smt. Sushila is mother of prosecutrix. She stated that she had heard the noise being raised by Smt. Geeta Bai as well as the appellant. She further stated that when she reached the house of Smt. Geeta Bai, she had simply seen t,,e appellant running from her house and that Smt. Geeta Bai told her nothing about any incident, though in the next sentence she added that the appellant had committed rape upon her. In the course of her cross-examination she admitted that she did not narrate the incident to anybody in the village. It is evident that the mother of the prosecutrix herself does not support her on the point of commission of any sex act with her by the appellant. It is also somewhat unnatural that no other person from the locality, populated by about 50 houses, did not reach the place of occurrence. 11. PW 3 Gulab Bai also stated in the same tone as PW 2 Sushila Bai had spoken. It is also somewhat unnatural that no other person from the locality, populated by about 50 houses, did not reach the place of occurrence. 11. PW 3 Gulab Bai also stated in the same tone as PW 2 Sushila Bai had spoken. She stated that on hearing alarm, raised by Smt. Geeta Bai she had reached her house with Smt. Sushila but by that time the appellant had runaway from that place. She further stated that though Smt. Geeta had stated at that time that the appellant had tried to out rage her modesty but he did not or could not. It is thus evident that this witness too does not support the version of the prosecutrix regarding commission of any sex act by the appellant with Smt. Geeta Bai. 12. PW 7 Mangilal is the real brother of Smt. Geeta Bai, the prosecutrix. His house is adjoining to that of Smt. Geeta Bai. Smt. Gulab Bai and Smt. Sushila Bai were sleeping at his house. He stated that on hearing alarm she had reached the place of occurrence but did not enter into the house of her sister Smt. Geeta Bai. It appears somewhat abnormal and unnatural that a brother would not like to enter into the house of her sister against whom an offence is stated to have been committed during dead hours of the night. He further stated that after the incident Geeta Bai had come to his house and thereafter his mother Sushila Bai went to the house of Smt. Geeta Bai. No such statement has been given either by Smt. Geeta Bai or her mother or even Gulab Bai. If after the incident Smt. Geeta Bai had herself gone to the house of the witness, there could have been no occasion for the witness to have arrived at the house of Smt. Geeta Bai and seen the appellant running from that place. 13. Above all, Smt. Geeta is stated to have been medically examined for commission of rape upon her but no such evidence was tendered at the trial by PW 4 Dr. Ramesh Chand Dube. Though the vaginal swab and garments allegedly stained with human semen are stated to have been seized and forwarded to the Chemical Examiner for his examination yet no such report was ever placed by the prosecution either before the Trial Court or before this Court. 14. Ramesh Chand Dube. Though the vaginal swab and garments allegedly stained with human semen are stated to have been seized and forwarded to the Chemical Examiner for his examination yet no such report was ever placed by the prosecution either before the Trial Court or before this Court. 14. After having considered the prosecution case in its entirety, I am of the opinion that the charge under Se,:tion 376, IPC against the appellant was not proved beyond reasonable doubt. The testimony of Smt. Geeta Bai in respect to that offence is not reliable and does not stand corroborated either by the circumstances naturally attending upon the commission of such offence against her or from other independent evidence. The other witnesses who are though closely related to Smt. Geeta Bai, have not supported her in that behalf. Therefore, it is not proved beyond reasonable doubt that the appellant had committed rape upon her during the night. The appellant is, therefore; entitled to acquittal of the offence under Section 376, IPC. 15. However, keeping in mind that an incident had taken place in day time and also looking to the facts that during the dead hours of night an alarm was raised from the house of Smt. Geeta Bai which attracted other witnesses, I am of the view that the appellant had effected his entry into the house of Smt. Geeta Bai with the intention of committing a cognizable offence punishable with imprisonment. The incident which took place in the day time negatives the defence arguments that the appellant could be an invitee of Smt. Geeta Bai. Had that been so, there would have been no occasion for Smt. Geeta Bai to have raised an alarm in the dead hours of the night, as she was living alone there. In my opinion, the house trespass committed by the appellant in that night is punishable under Section 450, IPC. The conviction of the appellant for the offence under Section 450, IPC is, therefore, accordingly upheld. 16. In the result, the appeal is partly accepted. The judgment and order under appeal are modified to the extent that whereas the appellant stands acquitted of the offence under Section 376, IPC and his conviction and sentence for that offence are hereby set aside, his conviction for the offence under Section 450, IPC is maintained. 16. In the result, the appeal is partly accepted. The judgment and order under appeal are modified to the extent that whereas the appellant stands acquitted of the offence under Section 376, IPC and his conviction and sentence for that offence are hereby set aside, his conviction for the offence under Section 450, IPC is maintained. However, the sentence awarded to him for that offence is reduced to the period already undergone but the amount of fine is increased from Rs. 1,000/- to Rs. 5,000/-. In default of payment of fine the appellant shall have to undergo R.I. for one year. The appellant shall be released as and when he pays the aforesaid amount of fine. The amount of fine if realised, shall be paid to Smt. Geeta Bai by way of compensation.Appeal partly allowed. *******