Criminal Appeal (SJ) No. 34 OF 1996 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Dinesh Sah, S/o Asharfi Sah, Resident of Village- Dhangarha, Police Station-Baniyapur, District- Saran. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent)) ************* For the Appellant : Mrs. Kusum Lata Das, Adv. For the State : Mr. (Dr.) Kumar Uday Pratap, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 376 IPC and sentenced to RI for seven years passed by the 2nd Additional Sessions Judge, Saran at Chapra in S.Tr. No. 95/91/68/91 by a judgment dated 03.02.1996. 2. The prosecution case is that on 25.08.1990 the informant instituted the case against the accused persons including the appellant that his sister had been kidnapped by co-accused, Asharfi Sah and his three sons. During trial the victim was recovered. The defence of the appellant was that in fact the girl who was a major had gone with the appellant on her own sweet-will and married him. 3. During trial the prosecution in all examined eleven witnesses out of whom P.W. 1 is on the point of having seen accused Radha Kishun Sah and the prosecutrix going together. P.W. 2 is on the point that he had seen the prosecutrix sitting in the shop of Asharfi Sah where his wife and three sons were present. P.W. 3 is also on the same point. P.W. 7 has stated that he had seen the 2 prosecutrix along with Asharfi Sah and his sons. P.W. 6 is the Judicial Magistrate who recorded the statement of the prosecutrix under Section 164 Cr.P.C. P.W. 4, Sharda Kumari is the victim girl. P.W. 8 is the Doctor who examined the prosecutrix on 16.11.1990 whereas P.W. 9 is the informant. P.W. 10 is the Investigating Officer and P.W. 11 is a formal witness. 4. The defence also examined two witnesses out of whom D.W. 1 stated that the prosecutrix was born on 13.11.1970 and that the story of kidnapping was completely false as also that the prosecutrix was around twenty years of age. D.W. 2 is the uncle of the present appellant and on the fact that the prosecutrix was married to the appellant after she was medically examined and opined to be 19 years of age. P.W. 4 the prosecutrix has stated that she was aged about 14 years and had gone to the shop of Asharfi Sah to purchase the salt where she met with accused Asharfi Sah, Radha Kishun Sah and the mother of Radha Kishun Sah. The mother of Radha Kishun Sah allegedly told that her mother’s sister was ill at Naihar and asked her to go there with her. The mother of Radha Kishun Sah touched something to her head and she became unconscious. The accused Radha Kishun Sah took her to Assam in unconscious condition. When she became conscious she asked Radha Kishun Sah why she had been brought there then he took her to Siwan from Assam. Radha Kishun Sah also offered to marry her but she refused to do so and then he took her to his brother’s place i.e. the appellant’s house. 3 The appellant thereafter threatened her and took her to Civil Court and coerced her to marry him. She then lived with him for two months in course of which he also established sexual relation-ship with her. He then took her to Siwan at the place of his sister’s husband and then she was arrested along with the appellant by the police. In her cross-examination she stated that she was married to Dinesh Sah and from the version of her cross-examination it appears that undoubtedly it was a case of consent between the two. P.W. 5 the Doctor who examined the prosecutrix was of the opinion that she was approximately 16 years of age. 5. Under the circumstances, it is difficult to uphold the conviction of the appellant under Section 376 IPC. In the result, the appeal is allowed and the judgment dated 03.02.1996 passed by the 2nd Additional Sessions Judge, Saran, Chapra in Sessions Trial No. 95/91/68/91 is set aside. The appellant is discharged of the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 19th May, 2011. NAFR/Vikash/-