JUDGMENT T.P.S. Mann, J.:- With the allegations of committing criminal trespass by entering into the house of the complainant with an intention to commit an offence and thereafter committing rape upon her, the appellant was tried by Additional Sessions Judge, Faridabad, who vide judgment dated 30.7.1994 convicted him under Sections 450 and 376 IPC. Vide order passed on 1.8.1994, the trial Court sentenced the appellant to undergo RI for ten years and to pay a fine of Rs.2,000/-, in default of payment of fine to undergo further RI for six months under Section 376 IPC. For the offence under Section 450 IPC, the appellant was sentenced to undergo a similar term of imprisonment and fine, besides the default clause. Sentences for both the offences were ordered to run concurrently. 2. Aggrieved by the same, the appellant filed the present appeal in this Court. 3. The prosecutrix, who was aged 25 years and married to Fazruddin was sleeping inside her house on the night intervening 2/3.6.1993. Her young son, who was about two years of age, was sleeping with her, while her husband had laid himself on a cot outside, i.e. in the courtyard. At about 2.00 A. M., when the prosecutrix was sleeping, the appellant managed to reach her place. He tied her mouth with the help of a saafa. This resulted in her waking up. However, the appellant over-powered her and after breaking the string of her salwar and taking off his paijama committed rape upon her. When her young son started crying, it attracted her husband Fazruddin, who came inside. On seeing him, the appellant ran away from the spot after scaling over the wall. She received injuries while she was subjected to rape. 4. There was no conveyance available during the night. Only in the morning, the prosecutrix, along with her husband, reached Police Station, where she lodged FIR Ex. PC on 3.6.1993 at 10.15 A.M. 5. The investigation was thereafter initiated by ASI Ram Niwas, who got the prosecutrix medico-legally examined from CHC, Hathin. The accused was arrested on 8.6.1993 by him, who was also similarly got medico-legally examined. Statements of witnesses were recorded. After the completion of the investigation, challan was presented against the appellant by SI Gian Singh, SHO, Police Station, Hathin. 6. The investigation was thereafter initiated by ASI Ram Niwas, who got the prosecutrix medico-legally examined from CHC, Hathin. The accused was arrested on 8.6.1993 by him, who was also similarly got medico-legally examined. Statements of witnesses were recorded. After the completion of the investigation, challan was presented against the appellant by SI Gian Singh, SHO, Police Station, Hathin. 6. After commitment of the case, Additional Sessions Judge, Faridabad framed charges against the appellant for the aforementioned offences on 10.12.1993 to which he pleaded not guilty and claimed trial. 7. In support of its case, the prosecution examined Dr. Rajni Gupta PW1, who stated that she medico-legally examined the prosecutrix on 3.6.1993 at 12.00 noon in Community Health Centre, Hathin. The prosecutrix was found to be conscious. She had no tenderness of the abdomen on account of having a pregnancy of 14 weeks. There was no external injury on her private parts. Hymen was ruptured. Per speculum examination revealed the presence of thin, white discharge. Vaginal examination showed that the vagina admitted two fingers easily. Cervix was backward. Uterus was of 14 weeks size. There was no bleeding per vagina. The doctor further found the following injuries on the body of the prosecutrix: “1. Abrasion 2 x 3 cm in size red in colour below left eye. 2. Diffused swelling of 3 x 3 cm on right side of forehead. 3. Multiple abrasions 5 x 7 cm on right hip.” Dr. Lokesh Kumar PW2 deposed regarding the medico-legal examination of the appellant on 8.6.1993 at about 9.30 P.M. As per his opinion, the accused had no abnormality which could make him unfit for sexual intercourse. Constable Krishan Kumar PW3 stated about delivering the special report of this case to the Ilaqa Magistrate. The prosecutrix was examined as PW4. She supported the case of the prosecution as was stated by her in FIR Ex.PC. Fazruddin, husband of the prosecutrix, appeared as PW5. He stated that he was sleeping outside his house, while his wife and son were sleeping inside. On hearing his son weeping, he went inside and found the accused running away naked, while carrying his paijama in his hand. He also found his wife lying naked on a cot. The head and mouth of his wife were tied with the cot. He untied the saafa from the head and mouth of his wife. On hearing his son weeping, he went inside and found the accused running away naked, while carrying his paijama in his hand. He also found his wife lying naked on a cot. The head and mouth of his wife were tied with the cot. He untied the saafa from the head and mouth of his wife. He had recognized and identified the accused as it was moonlit night. Next morning, he accompanied his wife to the Police station. He also stated in his examination-in-chief that when he entered his house during the night he had seen the accused lying over his wife and committing sexual intercourse. On noticing his presence, the accused had run away naked. Subhash Chand PW6 proved scaled site plan Ex. PO, which was prepared by him on the demarcation of Fazruddin and one Samman. The investigation part of the case was deposed to by ASI Ram Niwas PW7. After tendering report EX.PH of Forensic Science Laboratory (for short ‘FSL’) in evidence and affidavits EX.PJ of Head Constable Ranbir Singh and EX.PK of Constable Chiranji Lal, learned Public Prosecutor closed the prosecution evidence. 8. When examined under Section 313 Cr.P.C., the appellant pleaded false implication and stated that the witnesses had deposed due to enmity. However, no evidence was led in support of the plea. 9. The trial Court believed the prosecution version and convicted and sentenced the appellant as mentioned above. 10. I have heard learned counsel for the parties and gone through the evidence brought on record with their assistance. 11. The presence of injuries on the person of the prosecutrix is a clear indication of the fact that the appellant had forcible sexual intercourse with her. Dr. Rajni Gupta PW1 clearly stated in her cross-examination that on account of presence of injuries, in her opinion, it was a case of resisted affair and not of consent. Though, the said doctor had mentioned that the injuries on the head and face of the prosecutrix could be on account of beating, yet the prosecutrix clearly denied the suggestion that she was caught by her husband with the accused and given beatings. 12. It is the version of the prosecutrix, first in FIR Ex. PC and thereafter in the statement made in the Court as PW4 that she was lying asleep in a room and her two years old child was also sleeping. 12. It is the version of the prosecutrix, first in FIR Ex. PC and thereafter in the statement made in the Court as PW4 that she was lying asleep in a room and her two years old child was also sleeping. As she was asleep, she could not notice as to how the accused had entered into her house. She was awakened only when the accused tied her mouth with the help of a saafa. In such a situation, she would not have been in a position to shout or call for help. In fact, as per the testimony of Fazruddin PW5, he, after hearing the weeping of his two years old son, came inside the room and noticed that the accused was lying on his wife and committing sexual intercourse. He also found that the mouth and head of his wife was tied with the help of a saafa, the ends of which were further tied to the cot. On noticing that Fazruddin had entered the room, the accused fled away from there after carrying his paijama in his hand. The accused was easily identified by him, it being a moonlit night. Next morning, both, the prosecutrix and her husband, jointly went to the Police Station and lodged the FIR. 13. Both the prosecutrix and her husband were subjected to thorough cross-examination by the defence but no material could be brought on record from which it could be said that they were deposing falsely. The medical evidence corroborated the version of the prosecutrix and her husband. As mentioned above, the presence of the three injuries on the person of the prosecutrix could only be on account of resistance offered by her to the act of forcible sexual intercourse and not on account of any consent. Moreover, there is no evidence available on the file that the prosecutrix had received those injuries as a result of the beating given to her by her husband. Such a suggestion though made to the prosecutrix and her husband was specifically denied by them. The salwar of the prosecutrix was sent for examination. Vide report Ex. PH, Senior Scientific Officer of FSL, Madhuban reported that human semen was detected on the same. In his statement under Section 313 Cr.P.C., the appellant only stated that he was falsely implicated and the witnesses were deposing against him on account of enmity. The salwar of the prosecutrix was sent for examination. Vide report Ex. PH, Senior Scientific Officer of FSL, Madhuban reported that human semen was detected on the same. In his statement under Section 313 Cr.P.C., the appellant only stated that he was falsely implicated and the witnesses were deposing against him on account of enmity. However, the accused did not lead any evidence in support of his said plea. Mere giving of suggestions to the witnesses, which suggestions were specifically denied by them, would not lead this Court to infer that such a plea of the accused was tenable. In view of the above, no fault can be found with the conviction of the appellant for the offences for which he was initially charged and finally convicted. 14. Coming to the question of sentence, it has to be seen that in para 4 of the impugned order dated 1.8.1994, the learned trial Court awarded RI for ten years under Section 376 IPC on the ground that the same was minimum punishment prescribed by the statute. Section 376(1) IPC which would be the relevant provision of law of which the appellant has been convicted, envisages imposition of minimum punishment of seven years. The present case does not fall within any of the clauses of Section 376(2) IPC, which would have impelled the Court to award the minimum punishment of ten years. Under Section 376(1) IPC, the minimum punishment is seven years. Thus, I find that the facts of the present case required imposition of minimum punishment of seven years for the offence under Section 376 IPC and also for reducing the sentence of imprisonment under Section 450 IPC from RI for ten years to RI for seven years. 14. Accordingly, the conviction of the appellant under Sections 376 and 450 IPC is maintained. However: RI for ten years imposed upon the appellant for each of the aforementioned offences, is reduced to RI for seven years. The amount of fine imposed by the trial Court upon the appellant for the two offences along with its default clause does not call for any interference and is, accordingly, maintained. Substantive sentences of imprisonment for both the offences shall run concurrently. 15. Except for the modification in the quantum of sentence, as mentioned above the present appeal fails and is, therefore, dismissed. ———————————