Intruding upon the privacy of a woman and making gestures would be a common ingredient both of Section 509 and of Section 376, IPC. An offence under Section 509, in my opinion, would be a minor offence of the offence under section 376, IPC.

V. D. BHARGAVA, J.

( 1 ) BANKEY has filed this appeal against his conviction under Section 376 read with Section 511,. P. C

( 2 ) ACCORDING to the prosecution there was one Chunni resident of Mauza Basoma, police station bisault district Budaun. On 6-11-57, which was a day previous to Puranmashi, Chunni along with his son Jai Lal went to Asafpur railway station on his way to Chaubari for taking a dip in the Ganges. He left the ladies and children at the house. Since the train was to leave in the night, they had gone a little earlier and they were sleeping] at the railway station. It is alleged that the accused taking the opportunity of the absence of the adult male members of the family entered the house at about 10 Oclock in the night, caught hold of Smt. Tufania, wife of Jai Lal who was sleeping alone in the Kothri and forcibly wanted to remove her dhoti and to have sexual intercourse with her. Tufania is alleged to have resisted. Thereafter her mother-in-law Smt. Dbarmfa arrived. Both of them raised alarm. Other witnesses also arrived upon which the appellant ran away. Kehri and ram Kumar are the persons who had come. They were also going for having a dip in the Ganges, and when they reached the railway station: Asafpur they informed Chunni about the incident. Chunni, when he heard about the matter did not go for the bath but returned home and came to know the details from the ladies. A report was lodged thereafter at the police station. It is alleged that the report was not properly written by the police people at the police station. After three days Chunni came to Budaun and lodged a complaint on 11-11-57. The accused was challaned under Section 376 read with section 51 ). P. C. and convicted and sentenced to five years R.. and a fine of Rs. 50/ -. The accused has denied the allegation, but has produced no defence evidence, nor has he told why he has been implicated.

( 3 ) ACCORDING to the appellant there had been a dispute about the mend of a field between him and chunni and Chunni had threatened to implicate the accused in some false case and therefore he has been implicated. He has not been able to produce any evidence of the fact that there had been any dispute about the mend. He has not been able to show when the dispute took place. If it had taken place only a short time before the incident that may have been a reason for false implication, but if it had taken place long ago that would be no ground for falsely implicating,

( 4 ) IN order to prove its case the prosecution has produced five witnesses. They are Chunni, Smt. Toofania, Kehri, Ram Kumar and Smt. Dhara-mia. So far as Chunni is concerned, his evidence is not a direct evidence but only hearsay evidence about the incident. So far as Toofania (P. W. 2) kehri (P. W. 3), Ram Kumar (P. W. 4) and Smt. Dharamia (P. W. 5) are concerned, they have given the evidence that on the night between 6th and 7th November the accused entered their house. According to Toofania he came and started an altercation (hujjat karne laga) and he removed her rezai, upon which Toofania came out. She was wearing a petty coat. She cried upon which her mother-in-law was awakened.

( 5 ) ACCORDING to Smt. Dharamia (P. W. 5) the accused was having a quarrel (jhanjhat) with her daughter-in-law Smt. Toofania. Smt, Toofania was raising noise, crying "thief; thief". None of these two witnesses has deposed that the dhoti of Smt. Toofania was removed and she was naked, while the other witnesses Kehri and Ram Kumar, who are neighbours, have said that when they went to the roof of their house on hearing the alarm they could see that Toofania was shouting and the accused was holding her and that Smt. Toofania was naked.

( 6 ) FROM the evidence of these witnesses there does not appear to be any doubt that Bankey had entered the house of Chunni with probably some improper motive. But I do not think that he had gone to the extent of actually committing rape. He appears to have been making only gestures and

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