IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.296 OF 1997 Against the judgment of conviction dated 28.08.1997 and order of sentence dated 30.08.1997 passed by Ist Additional Sessions Judge, Sitamarhi in Sessions Trial No.249 of 1994/41 of 1995. JAGARNATH MAHTO, Son of Late Sahdeo Mahto, resident of Village-Narsama, Police Station- Riga, District-Sitamarhi........ Appellant Versus State Of Bihar.... .... Respondent For the Appellant: Sri Prasoon Sinha, Advocate For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant was charged with committing offences under Sections 366A and 376 IPC by the learned Ist Additional Sessions Judge, Sitamarhi in Sessions Trial No.249 of 1994/41 of 1995 and by judgment dated 28.08.1997 was convicted of the two offences. After being heard on sentence on 30.08.1997, the appellant was directed to suffer rigorous imprisonment for six months as also to pay a fine of Rs.2,000/-, else to suffer rigorous imprisonment for one year for being found guilty under Section 366A IPC. For being held guilty of offence under Section 376 IPC, the appellant was directed to suffer rigorous imprisonment for eight years as also to pay a fine of Rs.2,000/-, else to suffer rigorous 2 imprisonment for one year. The sentences were directed to run concurrently. The appellant has preferred the present appeal to challenge the order of conviction and sentence passed against him. 2. P.W.5, Raj Kumari, happened to be the daughter of P.W.8 Satya Narayan Mahto. It appears from her evidence that her parents had six children, the eldest being one of the sons who was elder to the victim. The appellant was running a tailoring shop, opposite the house of P.W.8, in the house of one Gonaur Sah(not examined). It is not disputed that the victim Raj Kumari was on visiting terms with the appellant, as per her own evidence as also that of her father, for learning the art of tailoring. 3. In the above background, the allegation is that on 17.11.1994, the victim had gone out to Punaura Janaki Mandir for taking a dip into Sita Kund and she did not return. P.W.8, her father, set out on a search of the lady and, lastly, came to find out that the present appellant was also missing from the shop. That knowledge grew the informant more anxious to plunge into a deeper probe, and in that course he made enquires from his co- villagers, like, Deo Narayan Mahto and Kishun Mahto(both not examined) and came to learn that this appellant and the victim Raj Kumari were seen together going to Sitamarhi bus stand. The informant went to the house of 3 the appellant to find that he was absent from there also and had not gone there. 4. The informant inferred that the appellant had either enticed or taken her daughter away in order to getting himself married to her. 5. On the basis of Ext-3, the written report, the FIR of the case, Ext-6 was drawn up for the offence being investigated into. It appears from the evidence of P.W.10, the investigating officer that during the course of investigation, the victim was recovered on 06.05.1995, i.e., after about six months of the occurrence and, as such, was produced before, P.W.6 Sri Rajendra Prasad Mishra, Judicial Magistrate, Ist Class, Sitamarhi for her statement and, accordingly, the learned Magistrate recorded her statement under Section 164 Cr.P.C. which has been marked Ext-2. The victim was sent then for her medical examination by P.W.4, Dr. Urmila Sinha and her evidence reveals that the lady on the date of occurrence was about 16 years of age and further that she was carrying a foetus of 18 weeks indicating that she was pregnant by four and half months. 6. The Investigating Officer, P.W.10, inspected the place of occurrence, recorded the statements of persons appearing acquainted with the facts and circumstances of the case and finding material sufficient, sent the present appellant up for his trial. 4 7. The appellant’s defence was that the lady ran out of her parents’ house out of love and affection, she was carrying for the present appellant on of her motion and in order to getting married to the appellant so as to residing with him and that was the reason that the lady was carrying a pregnancy. 8. The learned trial Judge considering the evidence and circumstances recorded the finding of guilt and passed the sentences. 9. The submissions on behalf of the appellant forwarded by Sri Prasoon Sinha, his learned counsel were that the circumstances which may appear from the solitary evidence of P.W.5 who could be the only witness on the story of taking or enticing away, may indicate that the lady was not only a willing party rather was a happy party in moving out with the appellant from where-ever, and probably from her father’s house, so as to travelling to different places for settling down as the wife of the appellant after marrying him. Contention further was that the admitted position indicates that it was not a one time decision of either the victim or the appellant rather they had concertedly done it after having perused their affair for quite some times. 10. As in the written report so in the evidence of P.W.5 Raj Kumari, it appears admitted, as may appear from paragraph-7 of her evidence, that she was a frequent 5 visitor to the tailoring shop of the appellant and the pretext for the visits were to learn the art of tailoring. In fact, the period has also been indicated for which the two were carrying the relationship in the backdrop of teaching or learning the art of tailoring. P.W.5 has admitted in paragraph-7 that it was since last five-six months that she was visiting the appellant for learning the art of tailoring. A very meaningful question was put to P.W.5 as to whether she had told the present appellant that she on the fateful night was actually to go to Sita Kund for taking a dip and she stated that she had not, but this Court has other inference because when it comes to reading the evidence of P.W.5 in paragraph-6 one could find that not only the lady had informed the appellant, but probably had planned the whole affair so beautifully that even her aunt who was accompanying her besides her other family members could not resist the act of the appellant of showing a dagger to the victim and thereby to subjugate her to accompany him. This was not end of the matter. The evidence has come in paragraph-9 that she started from Sita Kund with the appellant on foot up to Gaushala and from there they boarded a rickshaw together to come to the bus stand and in between she had her house, but she did not cry out that she was being taken away forcibly at the point of dagger by the appellant to another place. Not only that, she stated in 6 paragraph-10 that she after boarding a bus came to Hajipur from Sitamarhi. There were good number of passengers in the bus, but she could not complain to anybody about the manner she has been taken away by the appellant for the purposes of getting married to her. She alighted at Hajipur to catch the train to Balia, but again she was neither complaining to anybody on the way or at the railway station and least to talk in the train bogie. These could be circumstances pointing out that it was a well thought out and beautifully executed plan of the couple to run away from the obstructing world of Sitamarhi to a safer place where they could live lovingly with each other. There could not be any other better inference. 11. The lady was found by P.W.4 aged about 16 years. Jaya Mala Vrs. Home Secretary, Govt. of J & K reported in AIR 1982 Supreme Court 1293, while considering the evidence of a doctor on the point of assessment of age points out that a margin on either sides has to be of three years. If the victim was found about 16 years by P.W.4 adding up three years her age comes somewhere to 19 years and this was the reason that the defence was suggesting to P.W.5 that she had concealed her age and in fact she was aged 19 years and further that she had herself eloped with the appellant so as to getting married to him. 7 12. The learned trial Judge has recorded that consent of a minor or a lady who is up to 16 years of age for either of the two offences was no consent. But, when the court has recorded a finding that the lady might be exceeding 16 years of age and may be around 19 years then it becomes valid, specially under the circumstances which I have culled out of the evidence of P.W.5 that she was not only a consenting party, but was enjoying the company rather more willingly than the appellant that she was revelling in her sojourn from Sita Kund to Balia and never complained to any one about the acts of the appellant. 13. Under the facts and circumstances of the case, this Court finds that the offences for which the appellant was convicted were never constituted and established and, as such, the judgment of conviction was bad on facts as also on law and, accordingly, the same is hereby set aside. The appellant is acquitted of the charges for which he was convicted of. Patna High Court, Dated, the 21st day of November, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)