Criminal Appeal (SJ) No. 254 of 2007 -------- Against the judgment and order of conviction and sentence dated 24th January, 2007 passed by Shri Dr. Kumar Deo Dutta, Additional District & Sessions Judge, (F.T.C.) II, Ara, Bhojpur in Sessions Trial No. 244 of 2004. ------- Ajay Paswan, son of Uday Narayan Paswan, resident of village – Barishwan, Police Station – Shahpur, District – Bhojpur ……………… Appellant Versus The State of Bihar ……………. Respondent ----------- For the Appellant : Smt. Anita Kumari Singh, Advocate For the State : Shri 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 Ajay Paswan was indicted of committing offence under sections 363 and 376 IPC by Additional Sessions Judge-cum-Presiding Officer, Fast Track Court II, Ara, Bhojpur in Sessions Trial No. 244 of 2004. By judgment dated 24.1.2007, the appellant was found guilty on the two charges and was, accordingly, directed to suffer RI for seven years on each of the two counts as also to pay a fine of rupees five thousand equally on two counts, else to suffer RI for two months in default of paying the fine. 2. Undisputedly, Lalia Kumari (P.W. 5), the daughter of P.W. 3 was on visiting terms with the present appellant. It is noted in 2 the very written report that she was a frequent visitor to the house of the present appellant. She disappeared from her father’s house on 3.6.2003. During the course of search the informant, as per the allegation, came to know that it was the present appellant and the other accused persons who were named in the written report (Ext. 3) had enticed away his daughter Lalia, who was allegedly 14 years of age on 3.6.2003. 3. The written report (Ext. 3) was presented before the Officer Incharge of the police station after twenty eight days, i.e., on 1.7.2003 and on that basis, FIR was drawn up and it appears that after quite some months the lady came back to her father’s house and was, as such, produced before the Magistrate for recording her statement under section 164 Cr.P.C. She was examined by P.W. 6 Dr. Madhubala Sinha and she was also produced before a medical board, of which P.W. 6 was one of the members and, accordingly, the board found her aged in between 16 and 17 years as may appear from its report (Ext.6). The medical report furnished by P.W. 6 on examining the lady indicated that she was habituated to sex as her hymen was bearing old tear and her vagina was admitting two fingers easily. 4. The police after completing the formalities of investigation, sent up the present appellant for trial and, accordingly, he was convicted. 5. In support of the charges, seven prosecution witnesses were examined whereas the defence examined five witnesses. The prosecution witnesses, specially, P.Ws 3 and 5 supported the 3 allegation that this appellant had enticed away the lady (P.W.5). In fact, the evidence of P.W. 5 indicates as if she was mislead into the house of the appellant by his mother where she was offered biscuit and tea, whereafter, she became unconscious. When she regained her consciousness, she found herself in Dimapur, Assam. The lady stated that she was repeatedly raped by the appellant at the point of Chhura. 6. During the course of cross-examination of P.W. 5, certain facts were brought on record, which simply make her evidence unconvincing as regards the allegation of her being taken away after being made unconscious and thereafter being subjected to sexual intercourse by the appellant. The lady stated in her evidence that she was travelling with the appellant in train and in cross-examination, she has stated that they were travelling on valid travelling ticket issued by the railways. The lady stated that she and the present appellant were travelling in the same compartment but, were sitting at two different places. The defence was putting a very relevant question as to whether she was telling the fellow travelers in the train as to how she had been enticed away or taken away and why she was being taken to another place. The reply given by the lady was that she had not. The lady was further cross-examined as to where she was living with the appellant on which she has stated that she was kept in a house where she was cooking meals but, again was avoiding the truth. She was stating before the court that she, in spite of having cooked the food, did not take it and it was this appellant who was consuming the food. However, she has admitted that the appellant used to leave the house 4 at 10 A.M. and would come back at around 4 P.M. when she was all alone in the house but, she never shouted for any help nor did she inform any person in neighbourhood at Dimapur as to what had happened. She also stated that some vermilion was put into the parting of her hairs but she again explains that it was done by the appellant at the point of Chhura. Not only that, she also appears having got photographed with the appellant but again attempts to explain the conduct of the appellant. The age of the victim was assessed by the board as between 16-17 years. 7. The principles of law as set down by the Supreme Court in the case of Jayamala Vs. Home Secretary, J & K AIR 1982 Supreme Court 1297 indicates that there could be a margin of two years in the age determination by the doctor. What the Supreme Court was directing was to add two years to the age determined by the doctor and on adding up those two years to seventeen years, which was the assessed age of the victim through Ext. 6, she could be said to be around 19 years of age. Circumstances appear from her evidence and further from the filing of the written report after twenty eight days, indicating as if the lady were a free flier from her house and had not been influenced by any other act than her own friendly attachment to the present appellant. Besides, her conduct of travelling to Dimapur on valid travelling tickets, remaining in a house with the appellant there as wife and husband and allowing the appellant to put vermilion in the parting of her hairs as also getting her photographs, these all indicate that she was simply yearning for the appellant. That inference 5 is further fortified by the fact that she was enjoying the company of the appellant so much so that she appears living with him in Dimapur as a legally wedded wife. 8. Consent is anathema to the allegation of rape and consent appears naturally coming out of the evidence of P.W. 5 and some of the circumstances, which this Court had read out of her evidence. The charge under section 363 IPC could not be upheld simply because taking away the lady out of her lawful guardianship is at all not established. It is a free flight out of free will of an adult, who was probably infatuated to move out of her parent’s house due to the infatuation she was carrying towards the appellant. Likewise, charge under section 376 IPC must also fail due to the consenting contours of the conduct of the lady. 9. In the result, the appeal succeeds and the same is allowed by setting aside the judgment of conviction and sentence passed upon the appellant. If the appellant is still in custody, he shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 6th September, 2011, NAFR/Anil/