Criminal Appeal (SJ) No.318 of 1998 Against the judgment and order dated 22. 08. 1998 and order of sentence dated 29. 08. 1998, passed by Shri Ajay Kumar Srivastava, Additional District & Sessions Judge I, Purnea, in Sessions Trial No. 308 of 1994/ Trial No. 34 of 1998 1. Md. Azam, son of Md. Jainus. 2. Md. Jainus, son of Late Jamel. 3. Md. Billa @ Md. Billa Mian, son of Late Nasurddin. 4. Md. Kasim, son of Late Nasruddin. All are residents of Village- Madarganj, Police Station- Simaraha, District- Araria. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Uday Bhanu Roy, Advocate. Mr. Ambrish Kr.Jha, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1 has been convicted for offence under Section 376 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. Further all the three appellants including Md. Azam have been convicted under Section 313/511 I.P.C. and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as alleged in the complaint petition by Bibi Akhtari alleging therein that 2 when she went to the house of accused Md. Azam to take milk then Md. Azam forcibly get Bibi Akhtari inside the house and committed rape against her will at the point of dagger and after committing rape Md. Azam assured that he will marry her and not to disclose and after the occurrence sexual relationship between the accused Md. Azam and the complainant continued followed with the promise of marriage which led to the pregnancy of the informant. It is further alleged that on 26. 07. 1992, accused persons called Bibi Akhtari to the house of the accused persons where she reached thereafter, all the accused persons Md. Azam, Md. Kasim, Md. Billa and Md. Jainus tried to administer medicine for terminating her pregnancy, but on her cry, witnesses came there and saw a bottle of medicine and she also disclosed the facts to the witnesses. Thereafter, the complainant disclosed about the occurrence to her parents and then Panchayati was held and accused Md. Azam confessed his guilt admitted before Panchayati about sexual intercourse and he assured to marry her, but he has not married her. 4. However, on the complaint petition, F.I.R. was lodged under Section 156 (3) I.P.C. and after 3 investigation charge sheet submitted. Cognizance was taken and the case was committed to the Court of Sessions. The charges were framed and Trial Court taking into consideration the evidence of P.W. 1 the marriage was solemnised with the appellant no. 1 so that appellant may procure bail but after grant of bail the appellant again throw victim after commission of rape and pregnancy of seven months the case was instituted. Then she filed the case for maintenance which was also compromised and after compromised, the appellant no. 1 divorced her and married with another lady and further she did not administer medicine for termination of her pregnancy as it was intervened by some persons and her evidence is followed with defence adduced to evidence which is Ext. A and B, the copy of order sheet and the deposition of Bibi Akhtari in Maintenance Case No. 6/94 and on considering the oral and documentary evidence, the order of conviction and sentence recorded by the trial court as stated above. 5. Learned counsel for the appellants however submits that three stages in the prosecution case i.e. firstly, in December, 1991, she was raped without consent 4 when victim went to the house of appellant to take milk. Secondly, she claimed that sexual intercourse between the informant and appellant no. 1 and has continued in view of promise of marriage and thirdly attempt was made for terminated her pregnancy by administering medicine to the victim. However, the occurrence is of the December, 1991, was never reported by the victim till filing of the complaint, though, she has sufficient opportunity. It is further alleged after first occurrence the victim was assured by the appellant that he will marry her and sexual relationship was maintained on pretext that appellant will marry her. So the sexual intercourse was with consent. The victim is more than 16 years old and sexual intercourse with promise to marriage does not make out a case under Section 376 I.P.C., when the promise was not a misrepresentation, particularly, under the fact that the promise of marriage was satisfied as it accepted that appellant no. 1 married with the informant and has relied upon decision reported in 1990 B.L.J.R., 1984 Criminal Law Journal page 1535 Jayanta Ram Panda Vrs. State of West Bengal and decision reported in 2003 (4) S.C. page 46 Uday Vrs. State of Karnataka, where it has been held 5 that “if promise is made with intention not to marry then only promise can be said to be fraudulently or misrepresented to attract 376 I.P.C.” and it has been contended that under the facts and circumstance of the case, the marriage was solemnised and hence it cannot be said that promise was not fulfilled. 6. It has further been contended that the allegation is that four persons catch hold of the victim for administering medicine to terminate the pregnancy of the informant, but medicine could not be administered for the reason that on hulla several persons came and hence due to intervening circumstances the act of administering medicine could not be performed. But none of the person who came to intervene the administering of the medicine has not come has come to depose that they intervene and hence the prosecution could not establish that administering medicine was failed by intervention to prove its case beyond doubt. 7. Learned counsel for the State however contends the argument and submits that the act of prosecution has framed the case. 8. However, having regard to the fact that only 6 four witnesses were examined in this case and case of the prosecution that occurrence took place in the year 1991, at first instance at the house of the appellant no. 1. However, that matter was not reported till July, 1992, when the complaint was filed. It is alleged that in July, 1992, when the pregnancy of the informant was of seven months. However, four witnesses were examined are the informant and his parents and the parents have stated that that they learnt for the first time in July, 1992. P.W. 3 in para 5 stated that she learnt about the occurrence on the day when she was being administered medicine and on her call Md. Abbas, Kamil and Yasin came. However, the said Md. Abbas, Kamil and Yasin were not examined in this case and the intervening circumstance has not been established by cogent, reliable and unimpeachable evidence. 9. Hence having regard to the facts and circumstance, that rape alleged to have committed in the year 1991, but not reported till July, 1992 to any one when there was sufficient opportunity to report and further sexual intercourse alleged to have been continued with consent on pretext of promise to marry. However, if 7 the promise made with intention not to fulfill the promise the promise may be presumed to be misrepresentation. However, it has come in evidence that the appellant subsequently married with the victim and hence promise fulfilled and hence sexual intercourse was with consent. 10. However, under the facts and circumstances of the case, the appellant no. 1 has married with the victim, hence it cannot be said that promise was misrepresented and hence, act of sexual intercourse is covered by consent of the victim. 11. However, the age of victim is relevant at this stage. However, the victim in her statement has stated that her age 15-16 years in the year 1996, though, court has assessed her age as 19 years and hence her age 19 years on the date of his evidence, but as per evidence of the victim disclosing her age 15-16 years, hence her age become 10-11 years on the date of occurrence. However, the age of appellant no. 1 Md. Azam in the year 1998, 23 years and has court has also assessed his age 23 years and hence both appellant or victim was minor on the date of occurrence as per their age. Ext. B is the certified copy of deposition of Bibi Akhtari on 08. 09. 1994, where her age 8 as stated to be 21 years and court has assessed her age 20 years and as per assessment of the age by the court even she was more than 16 years on the date of occurrence 1991. 12. Hence, having regard to the facts that since the prosecution case is that sexual intercourse was done by the consent on promise of marriage and promise has been fulfilled and hence it cannot be said that consent was by fraud or misrepresentation and hence offence under Section 376 I.P.C. is not made out. Further, there is allegation of administering medicine, but it could not be administered due to intervene of Md. Abbas, Kamil and Yasin and others, but none of them examined to satisfy the intervening circumstance. 13. Hence, the intervening circumstance has not been established so charge under Section 313/511 I.P.C. not proved beyond reasonable doubt and falls to ground and hence order of conviction and sentence recorded by the lower court is set aside and the appeal is allowed. Patna High Court, The 5th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)