1. This is an appeal by the accused who was charged with an offence punishable Under Section 376, IPC as well as for an offence punishable Under Section 457, IPC but who was acquitted Under Section 376: IPC and convicted Under Section 451, IPC by the ' Sessions Judge, Bhandara.
2. It is alleged that in the night between 2nd and 3rd of December, 1967, at village Khod-Shivani. the accused committed rape on one Saraswati wife of Bhura Ukey of that village. It was further alleged that at the same time and place, he committed lurking house trespass by night by entering into the house belonging to the husband of Saraswatibai.
3, The accused as well as Saraswati and her husband Bhura are residents of village Khod-Shivani in Sakoli tahsil of the district Bhandara. Saraswati was living with her husband Bhura in her house in the village. She is about twenty-two years of age. Her husband was an employee and had also his own paddy fields. On the night between 2nd and 3rd of December 1967, he had gone for the threshing operations in his fields after his meals. Saraswati thereafter was sleeping with her young son who was six years old on a country cot inside her house. Her room had a door, but, the chain of the door was outside. The door, however, was loose enough for the person inside the room to take the hand outside and close it by the chain outside. She had chained her door therefore in this way from outside and went to sleep. The case of the prosecution is that, in the absence of her husband, the accused came to the door and opened the chain from the outside at about 10 p. m. He then entered the room while Saraswati was sleeping on her cot. He pulled her down and had forcible sexual intercourse with her. When he had finished that sexual intercourse and had put on his clothes and was about to leave the room, Saraswati's husband Bhura appeared at the house. Her husband entered the house and caught hold of the accused. Saraswati was shouting for help. Her husband Bhura also had a fight with the accused, but the accused appeared to have overpowered Bhura and knocked him down and was sitting on his chest. By that time Bhura's brother Tulshiram and other persons came there. Bhura was rescued. The relatives of the accused also arrived there. The father of the accused and others took away the accused from Bhura and his brother, although Bhura and his brother wanted to take him to the Police Patil in the night at 10 p. m. The accused comes from the Patil class and Saraswati from the Gond caste.
4. The Police Patil called Bhura in the morning. The matter was, therefore, reported to the Police Patil. The report was sent to the Police Station Duggipar. The matter was taken up for investigation. After the necessary investigation, a charge-sheet was sent against the accused. The charge against him was of a lurking house trespass and that of rape.
5. The accused has defended himself by saying that he had a servant by name Motiram, who lives near the house of Bhura. Actually, Motiram Is a brother of Bhura, but he lives separately there. The accused wanted him to keep the bullock-carts ready for taking paddy in the morning. The accused's case is that when he was calling out Motiram from outside. Saraswati came from inside her house into the chapri. She told him that Motiram had not yet come back to his house. By that time. Saraswati's husband came there and rebuked him as to why he was talking with his wife so late in the night. His case is that Bhura caught hold of him while he was standing in the court-yard of Motiram. Then Bhura called out for his brother and both these brothers assaulted him. By that time many other persons gathered there. His own father also arrived there. Because his father intervened, those people let him off and allowed him to go away with his father.
6. The learned Sessions Judge, after hearing the case, came to the conclusion that the prosecution have not established by satisfactory evidence the offence of rape against the accused. According to him, the testimony of Saraswati revealed that she was a consenting party to this sexual intercourse. He, therefore, acquitted him for the offence Under Section 376, IPC but he came to the conclusion that the accused has committed the offence punishable Under Section 451, IPC and not Under Section 457. IPC The learned Sessions Judge held that the accused entered the house of Bhura at night time for having sexual intercourse with his wife Saraswati and did actually have such an intercourse after the entry into his house. This was an offence of adultery. Therefore, he found that he has committed an offence of house trespass. Accordingly, therefore, he convicted him Under Section 451. IPC He has sentenced him to a rigorous imprisonment for only one month. Against this order of conviction, the accused has come here in appeal.
7. The important evidence, in so far as the offence Under Section 451 I, P.C. is concerned, is that of Saraswati and her husband Bhura. Saraswati has deposed that her husband had gone that night for threshing their paddy on the field and thereafter she was sleeping in the room and her six year son was also sleeping on her cot. The door has a chain only from outside but it could be closed or opened by hand from inside the house. She closed the door by chaining it outside from inside. Then she went to sleep. When she was sleeping, the accused came there, opened the chain and opened the door. He then entered the room and pulled her down on the ground and had sexual intercourse against her will. The accused had taken out all his clothes and then had sexual intercourse with her. After he put on all the clothes after the sexual intercourse, he was about to go when her husband appeared on the scene and entered the house. Her husband, therefore, caught hold of him and had a fight with him. It appears from her conduct that she was a consenting party as was concluded by the trial Court. Although she says that she was shouting out for help, it appears that she was not shouting. There were quite a few neighbours there. They would have all ran to her help if she was shouting. Her husband's brother Tulashiram and his wife, her mother-in-law and several others live in the neighbourhood. She says that when she was thrown down on the ground, the accused took out all his clothes and then had sexual intercourse with . her. She had, therefore,, enough opportunity of releasing herself from his. clutches. She, however, did not release herself from the clutches. The accused after that had put on his clothes. That also must have taken some time. It appears Saraswati did not do anything. For whatever reason she had consented, the fact does appear that she did consent to the sexual intercourse which the accused had with her.
8. The point, however, for my decision here is whether the accused had committed an offence punishable Under Section 451, IPC For the purpose of establishing this offence, the prosecution have to establish that the accused has committed house trespass and that the same was committed in order to commit an offence punishable with imprisonment. For the purpose of establishing house - trespass it is necessary for the prosecution also to show that the accused had made an entry into or upon the property in the possession of Saras- wati's' husband and if such entry was unlawful, and then if he remained unlawfully upon such property, such an entry or unlawful remaining at the house must be with the intent to commit an offence. Now, the learned advocate for the appellant contends here that the accused cannot be said to have committed this offence of house trespass in order to commit an offence, because, according to him, he had gone there on the invitation of Saraswati. Therefore, according to him, the entry cannot be said to be unlawful. It is further argued by him that the house must have been in possession not only of Saraswati's husband Bhura but also in possession of Saraswati his wife. He, therefore, argues that he entered the house which was in possession of Saraswati, because of her invitation. According to him, if the entry is lawful, the committing of the offence thereafter,, after making such an entry, will not make his entry a criminal trespass because there was no objection whatsoever by Bhura's wife Saraswati. Because there was no objection by Saraswati, therefore, his remaining in the house would be lawful. At any rate, he argues that, until the husband objects to his remaining in the house, his remaining there would be lawful. It is further argued by him that, in this case, there was connivance on the part of the husband and, therefore, he cannot also be said to have entered the house of Saraswati for a prospective offence of adultery.
9. But is his premise correct? Is there any evidence to establish that the accused had gone to the house of Saraswati and had made an entry in her house because of the invitation given by Saraswati? There is nothing on record to show that Saraswati had asked the accused to go to her house that night. On the other hand, Saraswati's evidence clearly shows that she had chained the door of her room from outside and the accused came there and opened the chain while she was sleeping. But the learned Advocate for the appellant argues that the trial Court disbelieved the story of Saraswati and, therefore, the accused was acquitted of the offence of rape. It is true that the evidence of Saraswati shows that she was a consenting party to the intercourse. That, however, does not mean that there is evidence also to show that she had invited the accused. to have sexual intercourse with her in her house. There is absolutely no evidence whatsoever to find that he went there on the invitation of this poor Saraswati. Therefore, the premise on which the argument of the learned advocate is based is itself not found from the record.
10. It is further contended that the, accused had not gone with a view to committing an offence. According to him, it could not be an offence at all, because Saraswati was a consenting party, It could not also have been an offence because her husband also had connived at it. His ground is that the husband also is not telling the truth and, therefore, it should be found that when he arrived there late, his whole story is untrue. The learned Sessions Judge, during the course of his judgment did observe that Saraswati's husband Bhura Ukey was trying to save face for himself and for his wife Saraswati by supporting the version of the wife that the sexual intercourse was a forcible one and against her wishes when the facts do show that she was a consenting party to it. But that was in so far as Saraswati's story regarding the rape is concerned. The learned Sessions Judge also observes that the version put forth by the accused that he had gone there to call Motiram also could not be relied upon but he would rather accept the version of Saraswati and her husband Bhura. Therefore, in so far as the offence punishable Under Section 451, IPC is concerned, he did rely upon the evidence of not only Saraswati but also Bhura. It appears to me that Saraswati's story so far as the offence of rape concerned may not be believed, but her evidence in so far as the first part of the prosecution story is concerned is reliable and should be believed. Therefore, when she was sleeping, the accused came to her house, opened the chain and then entered the house. He obviously entered the house for the purpose of having a sexual intercourse with the married wife of Bhura. This is an offence of adultery. It may be that, in a given case, if the wife stays separately and not with her husband and if there is a consent by the wife to the inter-, course by the accused, his entry would not amount to a criminal trespass for the purpose of committing an offence But such is not the case here. The evidence shows that his entry was unlawful.
11. But the learned advocate for the appellant invites my attention to Brii Basi v. Queen Empress ILR (1896) All 74 and says that to sustain a conviction Under Section 451, IPC i'or the offence of house trespass with 'intent to commit an offence, the prospective offence being adultery, it is necessary to show that there has been no consent or connivance on the part of the husband of the woman the intent to commit adultery with whom is charged against the accused. This was a. case where the complaint was preferred by the nephew of the husband of the woman with whom the accused had sexual intercourse. Her husband also was not called as a witness and there was no evidence that the accused had gone to the house to have a connection with the wife of Ramgopal, the husband, without the connivance and without the consent of Ramgopal. But such are not the facts here. Here the facts are very much dissimilar. The learned advocate also relies on Jagannath v. Emperor 23 Ind Cas 703 : A.I.R. 1914 Oudh 182, where also' the husband appeared neither as a complainant nor as a witness. In that case, also, there was nothing to show that the house was in his possession or that he had not consented to or connived at the entry of the accused. That case also, in my view, will not help the learned advocate for the appellant here.
12. It is true that when the prospective offence is that of adultery, it its necessary to show that there has been no consent or connivance on the part of the husband of the woman, the intent to commit adultery with whom is charged against the accused. But in this particular case, the husband arrived and had a fight with the accused. In fact, he is the person who caught hold of him and was about to hand him over to the Police Patil but the accused's father intervened and took him away from the clutches of the husband. In my view, where it has been shown that the husband was absent on a legitimate pursuit of his occupation it may also safely be presumed that such husband neither consented to. nor connived at any adultery or immorality on the part of his wife. It is obvious that he would be wholly ignorant of what was going on in his house and that, therefore, he could neither consent to nor connive at the same. Therefore, even if he was absent and during his absence this offence had taken place, it cannot be presumed that he had either consented to such an adultery or had connived at it. In our case, the husband arrived a little late and caught hold of the accused and protested against it and had also filed a complaint.
13. It is strange that the learned Sessions Judge has passed a very lenient sentence against the accused.
14. This appeal therefore, should fail. I, therefore, confirm the order of conviction and sentence passed by the trial Court and dismiss the appeal. The appellant to surrender to his bail within a week.