Sharma, J. - (1.) THE appellant Jaldeepsingh was challaned under sec. 376 I. P. C. by the Mandawar Police Station in the court of Extra Magistrate, Tijara. THE prosecution case is that at about midnight between the 23rd and 24th July 1948 the appellant entered the house of Sultansingh Chamar and committed rape upon his newly married wife Mst. Mishro aged about 20 years. Mst. Mishro tried to raise an alarm but the appellant put his hand over her mouth and prevented her from crying. He began to have sexual intercourse with her forcibly and in the meantime she somehow removed the hand of the appellant from her mouth and raised an alarm. Her husband who was sleeping near her room came in and saw the appellant committing rape upon her. He tried to remove the appellant but he pushed Sultansingh who fell down on the ground. Sultansingh alto raised an alarm and in consequence some of the neighbours including Sohansingh, P. W. 4, and Chanwarsingh, Madhosingh and Jagmalsingh came inside the house and removed the appellant who at once took to his heels. A report was lodged at the Police Station Mandawar on the 25th of July. 1948 at about 2 P. M. and a ghaghra of Mst. Mishro alleged to be stained and some broken piece of glass bangles were produced before the police station. Mst. Mishro was medically examined by Dr. Khandpuri at Alwar Zanana Hospital, Alwar. THE accused remained absconding for about 2 years and was arrested in August 1950. THE case was challaned against him as aforesaid. THE Extra Magistrate committed him to take his trial before the Court of Sessions at Alwar under sec. 376 I. P. C. but the learned Sessions Judge also added a charge under secs, 457 I. P. C.
(2.) THE appellant denied the charge and pleaded that the case was an outcome of enmity between the two parties of Rajputs, one of which was led by hi? uncle Shivnath Singh and the other by Ganpatsingh. THE learned Sessions Judge was however satisfied that the appellant committed the offences under secs. 457 and 376 I. P. C and consequently convicted and sentenced him under secs. 457 and 376 and sentenced him to four years' rigorous imprisonment and a fine of Rs. 100/- under sec. 376 and two years' rigorous imprisonment under sec. 457 and a fine of Rs. 50/ -. THE sentences of imprisonment were to run concurrently. He has preferred this appeal against his conviction and sentences. It was argued by Mr. Pannalal on behalf of the appellant that the case against the appellant was very doubtful as the first information report was not |lodged immediately after the alleged incident but was made more than 36 hours after. No reasonable explanation has been given why the report was made so late. He has also argued that according to the medical report no signs of forcible sexual intercourse were found over the private parts or any other part of Mst. Mishro's body. He has further argued that the case rests mainly on the evidence of Sohansingh who had been brought under the influence of the rival party. There is no doubt that according to the medical report no injuries were found on the private parts or any other part of Mst. Mishro's body. It is difficult to believe that after prolonged forcible sexual intercourse as is alleged by the prosecution no injury might be caused to the private parts or other part of Mst. Mishro's body. The learned counsel for the State himself conceded that it was not probable that no injury of whatsoever sort should have been caused to the private parts of Mst. Mishro's body. If the accused indulged in forcible sexual intercourse for a sufficiently long time. We are therefore not satisfied on the evidence on record that the accused was able actually to commit rape. From the prosecution evidence, however, it is clear that the accused entered the house of Sultansingh in the night with a view to commit rape or at least outrage the modesty of Mst. Mishro. He was actually found lying over Mst. Mishro when he was removed by Sohansingh and others. No enmity has been proved between the accused and Sultansingh and there appears to be no reason why he should have been falsely implicated. It was argued that there was enmity between Shivnathsingh and Ganpatsingh's party and therefore Ganpat-singh's party somehow instigated Sultansingh to bring a false case against the accused. The accused has not been able to show that any such influence was exercised by Ganpatsingh's party over Sultansingh. The evidence of Mst. Mishro and Sultansingh is corroborated by the evidence of an independent witness, Sohansingh, who is in no way inimical to the accused. Rather he belongs to the party of the uncle of the accused. There is absolutely no reason why Sohansingh should be falsely implicating the accused. No doubt the report was lodged rather late at the police station but the explanation of Sultansingh is that he had received an injury on being pushed by the accused at the time of the occurrence and he also hesitated to make a report against an influential man like the accused. The explanation may be true or it may be that Sultansingh considered twice before he made a report which would bring his wife into disrepute. It is proved by disinterested evidence that the accused was found inside the house of Sultansingh at dead of night and was actually lying over Mst. Mishro when he was removed by Sohansingh and others. In view of the medical report the actual commission of rape appears to be exaggerated but there can be no doubt that the accused assaulted and used criminal force to Mst. Mishro intending to outrage her motlesty. He was therefore undoubtedly guilty of an offence under sec. 354 I. P. C. It was also argued by Mr. Pannalal that there is no evidence to show that the appellant took precautions to conceal his act of house trespass. The accused could not therefore be guilty under sec. 457 I. P. C. We have been referred to a ruling of the Allahabad High Court reported as Chhadami vs. Emperor (1) (A. I. R. 1940 All. 259. ). In that case it was held by a Division Bench that it cannot be said that the mere fact that a house trespass was committed by night makes the offence one of lurking house trespass. In order of constitute lurking house trespass the offender must take some active means to conceal his presence. In the present case we do not find that the appellant took any precautions to conceal the act of house trespass. He cannot therefore be said to have committed an offence under sec. 457. Of course he committed criminal trespass by entering into Sultansingh's house and therefore his action amounted to house trespass. He certainly committed this house trespass in order to commit rape or at any rate to outrage Mst. Mishro's modesty. He was therefore guilty of an offence under sec. 451 I. P. C. The appeal is partly allowed, the convictions under secs. 376 and 457 I. P. C. are altered to convictions under secs. 354 and 451 I. P. C. respectively. Under the circumstances, the appellant is sentenced to one year's rigorous imprisonment and a fine of Rs. 100/- under sec. 354 I. P. C. and to one year's rigorous imprisonment and a fine of Rs. 50/- under sec. 451 I. P. C. instead of four years' rigorous imprisonment and a fine of Rs. 100/- under sec. 376 and two years' rigorous imprisonment and fine of Rs. 50/- under sec. 457 I. P. C. Both the sentences of imprisonment shall run concurrently. In default of payment of fine under sec. 354 the accused shall undergo two months' further rigorous imprisonment and in default of payment of fine under sec. 451 also for a further term of one month's rigorous imprisonment. .;