IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.371 of 1998 (Against the Judgment and Order dated 22nd September, 1998 passed by the Additional Sessions Judge, Kishanganj in Sessions Trial No. 312 of 1997.) ========================================================== Abdul Sattar Son of Shorab Ali, R/o Malmali, P.S. Korobari (Dighal Bank) District-Kishanganj .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellant : Mr. Ajay Mishra, Adv. (Amicus Curiae) For the Respondent : Mr. S.N. Prasad, A.P.P. P R E S E N T (HONOURABLE MR. JUSTICE MANDHATA SINGH) J U D G E M E N T Mandhata Singh, J. Heard, learned Amicus Curiae and learned counsel for the State. This appeal is filed against the Judgment and Order dated 22nd September, 1998 passed by the Additional Sessions Judge, Kishanganj in Sessions Trial No. 312 of 1997 by which the learned Judge has convicted the appellant under Section 376 of the I.P.C. and sentenced to Rigorous Imprisonment for 5 years. A written report given by the victim herself is made basis for the F.I.R., in brief, is to the effect that on 07.02.1996 at about 7.00 pm., when the informant went Patna High Court CR. APP (SJ) No.371 of 1998 dt.08-12-2011 2 to meet the call of nature and just sat for the purpose, accused Abdul Sattar-appellant, Manirul @ Mannu and Bojju overpowered her from behind, taken to the house of the appellant Sattar after pressing her mouth and putting her in fear of dragger. It is further said in the written report that from the house of this appellant, Manirul and Bojju came out appellant bolted the door from in side and committed rape thrice at the point of dragger in the night. After concluding the trial, conviction and sentence for the offence under Section 376 of the I.P.C. is awarded validity of which has been questioned through filing of this appeal. In all 7 witnesses are examined in the case but only paragraphs no. 6, 7, 8, 9 and 10 of cross examination of victim is referred to convince that sexual intercourse, if really committed, does not come within the definition of rape, as it was consented one. It is made clear that consent is necessary only when victim is 16 years of age or above. Her age is given 17 years by her even in her written report by the victim. P.W. 1 is also on the point of assessment of age. On this point, radiological finding is about her age 17 years and that of Dental Surgeon above 18 years but in opinion of P.W.1, the Doctor who examined the victim is above 18, in any case not less than 16 rather more than 16 years in which case consent plays Patna High Court CR. APP (SJ) No.371 of 1998 dt.08-12-2011 3 a vital role that is, if sexual intercourse is with consent of the lady that does not come within definition of rape. Para-6 of the victim is to the effect that both victim and appellant entered the room which was bolted by the appellant. In para-7, she is stating that she was wearing sari which she undressed and kept on cot and same thing was repeated by the accused. He also kept his lungi on the same cot and thereafter everything was done. Emphasis was that both taken each other in their hands rather eyes of the victim was open at that time and the act was repeated thrice in the whole night then in morning before Saheri she went to her maternal-grand mother. This much of the act is clear that the same cannot be done without consent in my opinion also. Once it comes that sexual intercourse is with consent, no offence is made out which has not been taken into consideration by the Trial Court so, the conclusion reached by it, is not liable to be sustained. One thing is made clear here that only 5 years have been awarded, while the minimum punishment for rape is 7 years but after acquittal that is of no relevance. Accordingly, the appeal is allowed and the order and judgment passed by the Additional Sessions Judge, Kishanganj on 22nd September, 1998 in Sessions Trial No. 312 of 1997 is set aside and the appellant is acquitted of Patna High Court CR. APP (SJ) No.371 of 1998 dt.08-12-2011 4 the charge for the offence under Section 376 of the I.P.C. and he is discharged from the liabilities of the bail bonds. Let a copy of the first page and last page of this order be handed over to the learned Amicus Curiae. Patna High Court, Patna 8th December, 2011. Shailendra Bh.Pd./ N.A.F.R./ (Mandhata Singh, J.)