Criminal Appeal (SJ) No.146 of 1998 **** Against the judgment, dated 24.02.1998, passed bySri Ramjee Pandey, Additional Sessions Judge, I, Jamui, in Sessions Case No. 553 of 1990 **** Dilo Rabidas, son of Mahadeo Rabidas, resident of village Itaba, P.S. Sono, district Jamui .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant ..Mr. Bharat Lal, Adv. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 376 of the Penal Code and has been sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case, as alleged in the fardbeyan, dated 06.07.1988, by the informant, Tusiya Devi, the prosecutrix, that in the month of poosh at about 10.00 a.m. she has been to take rahri field pressing her mouth and committed rape. When she protested then he told that he will keep her if she becomes pregnant and threatened to kill 2 if she disclosed to others. Then she did not disclose out of fear and he was under confidence that if something wrong would happens Dilo Rabidas will keep her. It is further alleged that thereafter Dilo Rabidas continued cohabitation in the pretext of marriage. It is further alleged that she become pregnant and then she disclosed about the occurrence to her mother in the month of baisakh. There was Panchayati, but, Dilo Rabidas refused to keep her. Two days prior to the filing of the complaint Dilo Rabidas demanded Rs.5,000/- for keeping her and when she refused to pay the amount, Dilo Rabidas resiled from his commitment. On the fardbeyan the first information report lodged and after investigation the charge sheet submitted, the cognizance taken and the case was committed to the Court of sessions. After commitment, charge was framed for offence under Section 376 of the Penal Code against appellant and under Section 3 of the Dowry Prohibition Act. 4. However, during the trial four witnesses examined. P.W. 1 is the mother of the informant, P.W. 2 is the victim, P.W. 3 is Kaleshwar Rabidas, who turned hostile and P.W. 4 is the doctor. 5. The accused pleaded innocence and set up defence that he has falsely been implicated by Tusiya Devi who had trapped Dilo Rabidas in love affairs and made the attempt to marry him and when he failed she filed this case falsely implicating Dilo Rabidas. 6. At the trial the question raised about the age of the girl that the girl is less than sixteen years and, further the victim was a consenting party and there is no corroboration to the evidence of rape. 3 7. The trial Court held on the basis of medical evidence and the report of the doctor that the victim was less than sixteen years old on the date of occurrence and, hence, her consent is no consent and further held that she was raped after taking her in rahri field by closing her mouth. 8. On the evidence of prosecutrix who supported the prosecution case in fardbeyan and the evidence of P.W. 2, the mother of P.W. 1 that when she returned from the sister’s daughter’s house then the victim disclosed about the occurrence and, hence, the victim was not a consenting party and the evidence of the victim can not discarded on the ground that she is the solitary witness as no corroboration is required to record conviction on the evidence of solitary witness. 9. The learned counsel for the appellant, however, challenged the finding of the lower Court on age of victim and asserted that the age of the victim was more than sixteen years and was in a consenting age and the evidence of victim suffers from inherent improbability and contradiction to be relied upon. The evidence clearly indicates that she was a consenting party and in view of the nature of the evidence of the victim it is not safe to dispense with the advisability of the corroboration to pass the order of conviction on the sole testimony of the prosecution. 10. So far the first point is concerned, the age of the victim stated in her deposition on 02.02.1993 as 22 years. The Court has also assessed her age as 22 years and taking her age as 22 years on 02.02.1993, the date of deposition of this witness, her age is more than 4 sixteen years on the date of occurrence, i.e., on 06.07.1988 and, hence, the victim was having age more than sixteen years and, hence, was in consenting age. The learned lower Court, however, rejected the evidence of the victim and proceeded to consider the age of the evidence of doctor and the medical report where the age of the victim was assessed as 17 years on the basis of radiological examination on 26.04.1989 as 17 years and held that on the date of occurrence, i.e., in between December, 1987, to January, 1988, she was less than sixteen years. However, the age assessed on the medical evidence on the medical report or radiological report is only an opinion based on insufficient data whereas the age of victim as deposed by her is a direct evidence on the date of deposition and, hence, the age, as stated, by the victim shall prevail over the age opined in medical examination and, hence, the finding recorded by the lower Court about the age of the victim as less than sixteen years is not sustainable and is here set aside and I find and hold that the victim was above sixteen years on the date of occurrence. 11. The next question for consideration regarding the rape as to whether the victim has proved or her evidence is reliable and worthy of confidence. P.W. 2 is the victim and she is the sole witness on the rape and P.W. 2 in her evidence as stated that on the date of occurrence she was at her house then Dilo Rabidas came at 07.00 p.m. took her by closing her mouth to the rahri field and raped her. However, in her evidence in paragraph 13 of her deposition in cross examination she has stated that prior to the occurrence she had met with 5 Dilo Rabidas twice in rahri field. She has further stated that she had not disclosed this fact to any one. However, the prosecution case by the informant in the fardbeyan, who is none else than this witness that when she protested at the rahri field at the time of alleged occurrence then the appellant told that he will keep her if she becomes pregnant. She has, further, stated that she was confident that if something wrong would happen, Dilo Rabidas will keep her and, further, case is that they continued cohabitation from poosh to baisakh till she became pregnant. Then she disclosed the matter to her mother. However, the mother, P.W. 1, in her evidence stated that at the time of occurrence she was not at the house and had gone to sister’s daughter’s house and when she returned then she learnt. However, the evidence of mother that she learnt when she returned, suffers from the contradiction from the prosecution case in the fardbeyan that the cohabitation continued till baisakh when she become pregnant then she reported her mother in baisakh and then the matter was raised. P.W. 2 the victim in her evidence has also stated that her first marriage was at Dhandih where she was living with her husband, who love her and after two years returned and, further she performed second marriage and she liked her second husband, but, the second husband does not come. 12. Hence, it is apparent from the evidence that the victim was a married lady having two marriages prior to the occurrence, further the victim used to meet the appellant secretly in the rahri field prior to the occurrence and on the date of occurrence that she was taken by appellant to rahri then she protested there then Dilo Rabidas said that 6 he will keep her if she becomes pregnant and she was confident that if something wrong would happen, Dilo Rabidas will keep her and this followed with the further case of the prosecution that she continued cohabitation from poosh to baisakh itself indicates that there was consent. 13. Had there been any threat or rape against her will or without her consent she was free to report the matter after her mother came from sister’s daughter’s place and the matter could have been reported, however, none reported the matter and the evidence of the victim that she was confident that if anything will happen then Dilo Rabidas will keep her, itself, indicate that she was a consenting party. The victim is not a virgin, but, a married lady having marriage twice and was well understanding the nature and consequence of sexual act and is intelligent enough and continuing the cohabitation for several months without any reporting either to mother or to any one, itself, indicate that she was voluntarily indulged in the act having freely submitted herself in free and unconstrained possession of her physical and mental state and, hence, taking into consideration the entire evidence that she used to meet the appellant in rahri field prior to the occurrence and even when she protested it was impressed that he will keep her and the victim being confident shall allow and they went on continuing the cohabitation particularly under the facts and circumstances that she was a married lady well understanding the consequence of the act and taking into consideration the good and evil of the act and, hence, it is apparent that it is a consent, however, any 7 argument that a consent was obtained by fraud by impressing her that he will keep her if something happen is not sustainable in criminal jurisprudence because a false promise is not a fact within the meaning of a Code as the consent in Section 375 of the Penal Code, itself, defines and enumerates the circumstance envisage not thirdly, fourthly and fifthly in Section 375 of the Penal Code in which the consent given by the prosecutrix is vitiated and not amount to consent and Section 90 of the Penal Code provides that if consent obtained under fear or injury or under misconception of fact and if the person doing the act knows or has reason to believe that the consent was given in consequence of such fear or misconception and, hence, to confirm to Section 90 of the Penal Code it has to be proved that the consent was given under fear or misconception of fact and, further that the person doing the act has reason to believe that the consent was given in consequence of such things and, hence, two facts are required to be proved by the prosecution. However, a promise that he will keep her is not a question of fact, there is no mention of any specific date and it is required to establish that at the time of promise there was no intention at all, however, neither these facts has been established nor it has been proved that the consent was given in consequence of misconception about his assurance to keep rather taking into consideration the entire facts and circumstances the victim having been married twice is a well grown up woman and continued to cohabitation having confident that the appellant will keep her if something wrong happens is not a misconception of fact, but, an act of promiscuous behaviour of the 8 victim and this view is supported by decision reported in (2003) 4 S.C.C., 46 (Uday Vrs. State of Karnataka) and, hence, having regard to the facts and circumstances, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt and as the prosecution has not been able to prove the act was without her will or consent and, hence, the order of conviction and sentence is set aside. 14. The appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 10th day of August 2011, N.A.F.R., S.A.