Criminal Appeal (SJ) No.70 of 1997 ****** Against the judgment of conviction dated 27.02.1997 and order of sentence dated 28.02.1997 passed by Sri Om Prakash Sinha, learned District & Sessions Judge, Gopalganj in Sessions Trial No. 31 of 1993. ****** Jagdeo Chaudhary, Son of Chandar Chaudhary, resident of village – Bhaisahi Tola Kodar, Police Station – Manjha Garh, District – Gopalganj. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : For the Respondent : ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. The appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case as alleged by the informant is that on 04.06.1992 while the informant Lakhpatia Devi went to catch her she- buffalo at about 5:00 A.M. which had fled away from the Khuta and when she went some distance across the road, Jagdeo Choudhary came and caught hold of her and thrown her in the Khanta, tried to rape her and when she protested then she was assaulted and raped. After the rape she started crying then Ghegi Chaudhary son of Saryug Chaudhary, Sheoji Chaudhary son of Sahdev Chaudhary both the nephew of the 2 appellant came. Jagdeo Chaudhary told that the victim is a thief and had come to bring a box. In the pretext of having committed theft on which Sheoji Chaudhary caught hold of the hair of the victim and tried to drag her and Jagdeo Chaudhary assaulted her by slaps and fists and then the victim came to her house and disclosed the fact to the people and then the people advised her to go to the police station. 3. On the fardbeyan, the FIR was lodged and after investigation the charge-sheet was submitted and the case was committed to the court of Sessions. 4. During the trial five witnesses were examined on behalf of the prosecution. P. W. 1 is the father-in-law of the informant, P.W. 2 is the victim-informant Lakhpatia Devi, P. W. 3 is Chinta Devi the daughter of the informant, P. W. 4 is the doctor and P. W. 5 is the I. O. 5. The trial court took into consideration the evidence of victim Lakhpatia Devi P. W. 2 while she was going to catch her she-buffalo she was caught hold by Jagdeo Chaudhary and was raped. On her cry accused Gheghi Chaudhary and Sheoji Chaudhary came and assaulted her. P. W. 4 is the doctor who examined the victim on the date of occurrence itself and proved the injury report marked as Ext. 1 and has found (i) bruise on right cheek on face – 2” x 1.5”, (ii) a bruise on the forehead 2.5” x 2”, (iii) a bruise on left forearm at three places 2.5” x 1/4”, 2” x 1/4" and 1-1/4” x 1-1/4”, (iv) swelling with abrasion on right hip posteriorly 1.5” x 1” and (v) a swelling on right back and chest 2” x 1”. The doctor has found injuries 1 to 5 are simple in nature caused by 3 hard and blunt substance. However, he has found that there is mark of laceration present in both lateral and anterior end posterior fornices of vagina and there was tearing on anterior fornices of 1” in size and there was vaginal discharge and the doctor opined that rape was committed on the patient. However, the doctor did not find any spermatozoa in pathological examination and it was opined that the presence of spermatozoa on the vaginal part is not essential in every rape case. 6. Further taking into consideration the evidence of P. W. 1 that he heard the alarm, went to the place of occurrence where the victim disclosed about the rape by Jagdeo Chaudhary and P. W. 3 has also stated that her mother has gone to catch she-buffalo and on her cry she went there and saw the unfolding of the cloths of her mother and learnt from the mother about the sexual intercourse. 7. However, the defence has come with a case that the sexual intercourse between the appellant and the victim was with consent as the victim has stated in her cross-examination that she was living with Jagdeo Chaudhary since last ten years and they used to do the work with consent of each other and even during the period Jagdeo Chaudhary had said to terminate her pregnancy. She has further stated that there was quarrel between them and Jagdeo Chaudhary has stopped maintenance so she filed a case and P. W. 1 the father-in-law of the victim has also stated that Lakhpatiya Devi is his daughter-in-law and his son died about 15 to 20 years back. Further he has stated that he has driven out her daughter- in-law since last two years. His evidence has been recorded in the year 4 1994 whereas the occurrence is of the year 1992 and has stated that when he found her wrong then he has driven her and further the prosecution case of suggestion which has been denied by P. W. 1 that Jagdeo Chaudhary always have illicit relation with his daughter-in-law and she is living with Jagdeo Chadudhary since the death of her husband. 8. The trial court after considering the evidence of the witnesses hold that there is ample evidence regarding the rape as well as sexual intercourse and rejected the defence of the accused about the consent and hold that the sexual intercourse by the appellant was not with the consent at the time of occurrence and hence convicted and sentenced as stated above. 9. Learned counsel for the appellant, however, contended that the victim herself admitted in her evidence that she was living with the accused since last ten years and she has filed a case as she was not giving her maintenance and this itself proved that the victim was consenting party. 10. However, taking into consideration the evidence, the victim has specifically stated that while she was going to catch her she-buffalo then he was apprehended and raped by Jagdeo Chaudhary and assaulted. She made a cry and then P. Ws. 1 and 3 have also supported the prosecution case that on Halla they went to the place of occurrence and the victim disclosed about rape. However, the evidence of the doctor P. W. 4 confirmed the sexual intercourse with the victim and the I. O. has affirmed and supported the prosecution case at about the place of 5 occurrence found the trampling and hence the sexual intercourse cannot be denied and rather it is well established that the victim was subjected to rape and sexual intercourse and the prosecutrix has well supported and corroborated by other evidence and now the only question for consideration whether the sexual intercourse was with consent. It is also established that they are not husband and wife to cover under the explanation of Section 375 of the IPC and as per the prosecution case that the victim was going to catch hold of the she-buffalo and then she was caught and raped and hence from the trend of the evidence it can well be inferred that when the occurrence took place the victim P. W. 2 has stated in her cross-examination that she is living with the appellant since last ten years and they indulge in the activity with consent and even she was got pregnant which was terminated. However, appellant has made out a case that earlier consent was given for sexual intercourse and there was some quarrel between them due to which the accused stopped giving maintenance and hence she filed the case but consent once given for sexual intercourse will not mean that it continued unless they are husband wife. Hence, apparently on the date of occurrence itself there was no consent and hence I find and hold that the prosecution has been able to prove the charges of rape beyond reasonable doubt and hence the order of conviction recorded by the lower court is hereby maintained. 11. However, having regard to the facts and circumstances that the victim in her statement has accepted that she was living with the appellant since last ten years giving the consent to the appellant for 6 sexual intercourse and hence being as good as husband wife and occurrence is of the year 1992 and 20 years have already been elapsed and the appellant has remained in jail at the time of occurrence during the investigation/trial as well as about one and half months after conviction till the grant of bail by this Court and hence the ends of justice shall meet by sentencing the appellant for the period already undergone and hence with the modification in sentence the appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 23rd September, 2011. N. A. F. R. / Kundan.