1 Criminal Appeal (SJ) No.15 OF 1994 - - - - Against the judgment of conviction and order of sentence dated 15.12.1993 passed by the Additional Sessions Judge-IV, Madhubani, in Sessions Trial No. 147 of 1993. JAI KUMAR MAHTO son of Bahru Mahto, resident of Village Bichkhana, Police Station Arer(Benipatty), District Madhubani … … Appellant Versus 1. THE STATE OF BIHAR 2. Ram Gulam Mahto, resident of Village Bichkhana,Police Station Arer, District Madhubani … … Respsondents For the appellant: Shri Ajay Kumar Thakur,Adv. 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 present appeal has been preferred by the solitary appellant to question the propriety of his conviction under Sections 366A and 497 of the Indian Penal Code which was recorded by the 4th Additional Sessions Judge, Madhubani, in Sessions Trial No. 147 of 1993. The appellant had also been charged under Section 376 of the Indian Penal Code, but the learned trial Judge acquitted the appellant on that count and convicted him for the offence under Section 497 of the Indian Penal Code for which there was no charge framed. 2. The prosecution case, in short, was that the appellant took or enticed away P.W. 5, the prosecutrix from her father’s house at about 8 2 A.M. on 28.9.1992 from her village to Madhubani and from there to Darbhanga and after causing her unconscious, took her away to Assam where she was repeatedly raped. 3. During course of the trial several witnesses were examined but the evidence of other witnesses does not appear of much importance except that of the prosecutrix, P.W. 5 as the decision of the present appeal mainly hinges upon her evidence. In addition to that, the court wishes to have a glance of the evidence of P.W. 13 Dr. Nirmala Kumari who had medically examined P.W. 5. 4. P.W. 5 stated that the appellant came and told her that her Mama was ill and hospitalized and that he was required to take her to the Darbhanga Medical College Hospital and further asked her to pick up her ornaments. The prosecutrix picked up her ornaments and left with the appellant, came to Benipatti and from there to Madhubani by bus and further to Darbhanga, also by bus. It is stated by the prosecutrix that some substance was administered to her through her breath, while travelling in the bus as a result of which she lost her consciousness and in the state of her unconsciousness she was taken to Assam which she could learn only after regaining her 3 consciousness. She found herself into a thatched hut there where she was kept for over a month and during that course the appellant had sexual intercourse forcibly with her. It is further stated that the appellant wanted money from the prosecutrix on the pretext of getting her Mama treated, but after being told by the prosecutrix that she did not have any money, the appellant took her ornaments on the pretext of mortgaging them so as to getting the money. 5. In her evidence in paragraph 2 the lady stated that she was married four years prior to the occurrence and that she did not have any relationship with the man and further that she did not have sex with him and that the man had, ultimately, married another lady. The lady was never taken by her husband to his house. On further reading of the evidence of P.W. 5 in paragraph 6 it may appear that the appellant was a regular visitor to her house and the evidence in paragraph 7 of P.W. 5 when considered with some of her statements in paragraph 6, may point out that the whole story of administering any substance to her so as to making her unconscious is a hoax and simply not acceptable. If she had raised an alarm about administering some substance to her and 4 reported the same to the conductor of the bus and co-passengers, as narrated by her, then there could be no reason that the appellants could have succeeded in administering some substance to her and if she was made to lose her consciousness in the bus then how was it that she was shifted into a train and was, in the state of her unconsciousness taken to Assam. The lady appears to me making completely a false statement because in the year 1992 there was no direct link from Darbhanga for going to Assam and one had to catch a train for going to Assam only after reaching Samastipur. The above circumstances indicate that the lady was a willing partner who was leaving out her house to go with the appellant at different places. 6. This inference also gets further corroboration when the evidence of the lady in paragraph 9 is considered. She has stated that in Assam where she was kept, there were many houses around it and those houses were inhibited by many families. The lady has stated that she used to interact with the ladies of different houses and not only she used to visit the houses of the neighbourhood but also the ladies of different houses used to visit her. She used to cook meals 5 and breakfast for the appellant and she used to share the same bed with the appellant. If this was the fact as was stated by the prosecutrix in paragraph 9 of her evidence then it could simply not indicate that she was an unwilling partner and she was taken or enticed away. 7. The evidence of P.W. 13 Dr. Nirmala Kumari indicates as under: “ No external injury on the body of the victim as well as no evidence of internal injury was found. Hymen not intact. Vagina admits two fingers. It means she is habituated to intercourse.” The evidence of the Doctor further indicates that the prosecutrix was in between 16 and 17 years of age. On consideration of the evidence of P.W. 13 in the light of law laid down by the Supreme Court in Varda Rajan Vs. State of Madras reported in A.I.R. 1965 S.C.942 the lady could be said to have attained the majority and she could be said to have crossed the threshold of discretion and could be further said to be capable of taking her own decision about her life. The evidence is that she left her house when neither of her two mothers nor her father was present in the house. She was all alone and left her house with ornaments. The very circumstance that she was moving with her ornaments indicates that she was fully and 6 completely a willing party accompanying the appellant to whatever destinations. 8. Considering the evidence and the circumstances appearing, therefrom, the Court finds that it was a fit case in which the appellant should have been acquitted under Section 366A of the Indian Penal Code. As regards the conviction under Section 497 of the Penal Code, firstly, there was no charge framed under that section. Secondly, it was not a minor offence in comparison to the offences under Sections 366A or 376 of the Penal Code. Hence, conviction of the appellant without framing a charge for an offence under Section 497 of the Indian Penal Code was also erroneous. 9. In the result, the appeal succeeds, the judgment of conviction and order of sentence which were passed against the appellant are hereby set aside and the appellant is acquitted. 10. The appellant is on bail. He shall stand discharged from the liability of his bond. ( Dharnidhar Jha, J.) Patna High Court The 7th April, 2011 Kanth/N.A.F.R.