IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.376 of 1998 (Against the Judgment and order dated 24th August, 1998 passed in Sessions Trial No. 667 of 1997/ 55 of 1998 by the Ist Additional District Judge, Purna) ========================================================== Md. Nasim S/o Md. Jalil, R/o Vill. Rahmat Nagar, P.S. K. Hat, District : Purnea .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellant/s : Mr. Ashutosh Kumar Mr. Nachiketa Jha. For the Respondent : Mr. S.N. Prasad. A.P.P. CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH P R E S E N T (HONOURABLE MR. JUSTICE MANDHATA SINGH) J U D G E M E N T Mandhata Singh, J. 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. This appeal is filed against the Judgment and order dated 24.08.1998 and 31.08.1998 passed by the Ist Additional District Judge, Purnea in Sessions Trial No. 667 of 1997/55 of 1998 convicting the appellant under Section 376 of I.P.C. and sentencing him to undergo R.I. for 10 years. 3. Fardbeyan of the victim’s father has Patna High Court CR. APP (SJ) No.376 of 1998 dt.05-12-2011 2 2 been made basis for F.I.R. which, in brief, is that her 13 years daughter came in company of this appellant along with Khurshid and both the persons committed rape upon her. In the morning, on information informant along with others went to orchard of polytechnic found present his daughter, this appellant and one Khurshid. Khurshid left the place but Nasim, appellant was caught along with his daughter. 4. After trial, case ended in conviction and sentence of the appellant by passing the Impugned Judgment and Order validity of which has been questioned through filing this appeal. 5. In all 8 witnesses are examined by the Trial Court. Documentary evidence in the case is Medical Report (Ext.1) and F.I.R. (Ext.2). Admittedly, there is no eye witness in the case save and except victim herself. She has been examined in the case as P.W.1. P.W. 7 and P.W.8 are two Investigating Officers of the case. Their statement is relevant on the point that investigation was conducted by them including recording statement of witnesses. P.W. 2, P.W. 3, P.W.4 and P.W.5 are informant or his family members. They are relevant on the point that victim remained absent from the house in the night. She was brought or came Patna High Court CR. APP (SJ) No.376 of 1998 dt.05-12-2011 3 3 herself in the morning to their house. Now, a single witness remains on the point of commitment of real act of rape. On this point, she states that when she was coming from her father’s shop, this accused met her, came to School with her and committed rape. By referring her part of statement made in the Court, it is submitted on behalf of the appellant that there was no such act ever committed by him, appellant. If really sexual intercourse was committed then also it was without her consent is doubted. It is made clear that consent is relevant in cases of rape if that (age of the victim) comes 16 years or above. Witnesses from victim’s family members including victim may state the age but they including victim are silent on this point no doubt deposition of the victim as P.W. 1 is there in which before recording her statement appearance of age assessed by trial Court has come. In heading of the form of deposition, victim’s age has been assessed by Trial Judge 18 years but no age is told by the victim. Now remains the statement of P.W.6, the Doctor who examined victim just after filing of the case and that is 15 to 16 variation of two years is possible in assessment of age that can go Patna High Court CR. APP (SJ) No.376 of 1998 dt.05-12-2011 4 4 either way. Margin of one year is given by the Doctor herself. If one year more can be taken towards lower side, there is no material at all on the record as none of the witnesses even victim or any from her family members has come forward to state her age. In upper side, assessment of Trial Court is there while examining this victim, as P.W. 1 that is 18 years if may not be taken for increasing 16 to 17 then also that can be accepted for 16 years and another view is that the view taken for innocence is more acceptable. In any case, that is accepted for 16. In that case, consent plays a vital role and on this point submission of the learned counsel for the defence is that circumstance was existing that the victim was a consenting party, as in paragraph-2 of the examination of Chief, she states that after the sexual intercourse, he (appellant) asked her to remain there in the orchard waiting him as he was going to his sister for money and from the prosecution case itself she remained there till arrival of her father. Further, submission of learned counsel for the petitioner is that circumstance was existing for false implication of this petitioner that has also appeared in cross-examination of the P.W.1, victim herself in Patna High Court CR. APP (SJ) No.376 of 1998 dt.05-12-2011 5 5 paragraph-7, states that petitioner’s shop was in side of her father’s shop that was the reason why accused was known to her. Earlier to the incident, there was quarrel in between this petitioner and her father. He was intending that her father should leave his shop. I agree with the points raised by making submission that the act of sexual intercourse if really was there that was with the consent of the victim and circumstance was existing also there for false implication by victim’s father. This much of the aspect has not been considered by the Trial Court while coming to the conclusion of conviction so that is not liable to sustain. Accordingly, the Criminal Appeal is allowed and the Judgment and order dated 24.08.1998 and 31.08.1998 passed by the Ist Additional District Judge, Purnea in connection with Sessions Trial No. 667 of 1997/55 of 1998 is set aside. Above named petitioner is directed to be acquitted of charge leveled against him and discharged from the liabilities of bail bonds. (Mandhata Singh, J.) Patna High Court, Patna 5th September, 2011, Shailendra Bhushan Prasad, A.F.R.