Criminal Appeal (SJ) No.135 of 1997 Against the judgment and order dated 9.5.1997 passed by the Additional District and Sessions judge IX, Patna, in Sessions Trial No.135 of 1995. ========================================================== Kush Kumar .... .... Appellant. Versus State Of Bihar .... .... Respondent. ========================================================== For the Appellant : Mr. Arun Kumar Tripathi, Amicus curiae. For the Respondent : Mr. Ajay Mishra, A.P.P. For the informant : Mr.R.Narain,Advocate. ========================================================== P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. The appellant has been convicted under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 2. The prosecution case, in short, as alleged by the informant, Vijay Kumar that his daughter, namely, Kumari Rashmi had been kidnapped by Kush Kumar son of Naurangi Lal Rajak by enticing. It is alleged that Kush Kumar had kidnapped her on a motor cycle by putting her under fear. It is further alleged that prior to the occurrence his daughter disclosed that said Kush Kumar used to tease and threaten for marriage and, hence, he has stated that Kush Kumar kidnapped her. It is further alleged that regarding this fact the information given to the father and the brother of Kush Kumar. But they did not take any action and, hence, it appears that they also appears involved in conspiracy. The occurrence is dated 15.9.1994 and 2 the matter was reported and the F.I.R. was lodged on 19.9.1994 and investigation proceeded. In course of investigation the police raided the house of one Ashok Kumar in Mohalla Kazipur and recovered the victim on 1.10.1994 along with the accused Kush Kumar. The statement of the victim was recorded under section 164 Cr.P.C. The police after investigation submitted charge sheet. 3. During the trial ten witnesses were examined on behalf of the prosecution. They also adduced documentary and oral evidence which are Exts. 1 to 7. The defence has also adduced evidence. Three witnesses were examined on behalf of the defence and they also produced documentary evidence which are Exts. A and B series. Ext.A is envelope and Exts. B/1 to B/25 are love letters. They also adduced photographs and the marriage register which are Exts.C and D. 4. After taking into consideration the entire evidence of the witnesses the trial court acquitted the appellant for the charge and for the offence under sections 323 and 366A I.P.C. but, however, convicted under section 376 I.P.C. and sentenced to undergo rigorous imprisonment for five years. The trial court while considering the evidence of the prosecution held that the victim was of 17 years of age on the date of the occurrence dated 15.9.1994 and further taking into consideration the evidence of P.W.1, Rashmi Kumari, the victim and the prosecution case as we as the evidence of P.W.1 the victim, Rashmi Kumari that no sooner she reached Baidyanath Ayurved Bhawan, Khasmahal, accused Kush Kumar came on a Rajdoot Motorcycle and told her that her mother was indisposed 3 lying in P.M.C.H. The victim sat over his motorcycle. The accused Kush Kumar drove his motor cycle towards Kankar Bagh. He stopped the motor cycle at Patrol Pump took out a pistol and asked the victim to be keep quite otherwise she along with her entire family members would be killed. Thereafter he went to Ambedkar Colony where he stayed couple of hour and some photographs of the victim were taken and then both proceeded to Hajipur. There they stayed at Vaishali Hotel for about two hours and then the victim was taken to Bhagwanpur at the House of the sister of the appellant where her mother, brother and father of the appellant were present and there it is alleged that she was kept in a room and the Kush Kumar came in the room in drunken state and requested her for marriage and when the victim protested she was slapped and raped and then the entire family members of the appellant requested that now her chastity has been violated and she stayed Bhagwanpur for four days where she was ravished several times and from there she was taken to Allahabad and from Allahabad to Patna. 5. Taking into consideration these evidences the trial court observed that in a sum and substance of the examination-in- chief of the victim the story narrated by her is highly unbelievable and improbable. The narration of the story is easily found in the book of Arabian Night and he found her evidence that though she stated in her evidence that Naurangi Lal and Law Kumar accompanied her from Bhagwanpur to Allahabad and then came back from Bhagwanpur on 30.9.1996 knew of the fact both were arrested and remanded on 1.10.1994 by the police and found that the statement of the victim consists with the facts established and, hence, though acquitted the 4 appellants for the offence under section 366 of I.P.C. on two scores that the victim then out of her own volition and further for offence under section 366 A I.P.C. one of the essential ingredients is that kidnapping of her is affected by another person and here in this case Rashmi Kumari was kidnapped for sexual intercourse and for marriage and, hence, offence under section 366A I.P.C. is not made out. However, with regard to the offence under section 376 I.P.C. and the learned Additional Sessions Judge has held that consent of the victim for the sexual intercourse was there and it is not a fact that she was cohabited against her will or without any consent. However, the trial court held that the consent given by the victim was clouded under duress that accused Kush Kumar was her husband and, thus, deceptive consent is not at all and appeared from that cohabitation was done by the accused appellant and, hence, convicted the appellant for the offence under section 376 I.P.C. 6. That the learned counsel for the amicus curiae submitted that taking into consideration the fact that the victim was consenting party and the appellant has been acquitted for the offence under section 366A I.P.C. and no appeal has been preferred. 7. The learned counsel for the informant as well as the counsel for the State however contended that the conviction has been recorded under section 376 I.P.C. but the sentence imposed for one for five years whereas minimum sentence requires 7 years and any punishment less than for 7 years must be for reason to be recorded but separated by same evidence no reason has been assigned and it has further been contended that Ext.B series itself suggests that the process 5 of seducing the victim was continuing since 1993 when the victim was a minor below 16 years and though the charge framed under section 366 but the appellant was acquitted and has further contended that the consent of the victim was deceptive. 8. Taking into consideration the respective submissions the question for consideration whether the sexual intercourse was with the consent of the victim or whether the victim was consented party to the sexual intercourse. 9. However prosecution case in the complaint petition filed by the father of the victim that the victim had gone out and was kidnapped and objected and some days prior to the occurrence the victim had reported about the teasing by this appellant. However, P.W.1 is the victim herself and she in her evidence has stated that when she proceeded for her college from her house then she came to the Baidyanath Ayurved Bhawan where she met the appellant and the appellant disclosed her that her mother is seriously ill at P.M.C.H. However, without any enquiry about the nature of the illness she sat over the motor cycle of the appellant. However, instead of going to P.M.C.H. by crossing the bridge of Chiraiyatand she was taken to Tiwari Becher Petrol Pump but there was no protest. It is alleged that at Tiwari Becher she was threatened by pistol.The victim was alone along with the appellant. But she did not report the matter at the petrol pump. Thereafter she went alongwith the motor cycle.She in her evidence stated that after threatening the appellant put the pistol in the dock of the motorcycle and kept her sitting on the motor cycle. Even then she did not protested rather she went along with the appellant on the 6 motor cycle and she was taken to Ambedkar colony there she remained for two hours and from Ambedkar colony on bus to Hajipur and from Hajipur she went to Vaishali Hotel. However, in the entire way neither she protested nor raised any halla. Again she was taken to the house of the sister of the appellant at Bhagwanpur and there she alleged that rape was committed. However, she stated that she did not make any halla and then, from there she was taken to Allahabad and from there she was taken to Patna.The defence has also adduced Ext.B/series. From Exts. B/1 to B/5 are love letters, admittedly, in the writing of the victim. However, the prosecution has made out a case that these letters got written during her captivity. However, case of the victim that these are not exhibited. The trial court has taken into consideration the fact and has also held that these are written in league. The case of the prosecution that these letters were written in captivity by force applied by the appellant. Ext.B series are letters 25 in number cannot be said to have been written in one stretch or under duress or under threat. 10. Hence, taking into consideration the facts and circumstance that there was prior communication between the two, the victim and the appellant and they had developed intimacy and on the date of the occurrence the victim was more than 16 years of age. But section 375 of the I.P.C.,however, provides that the victim having about the age of 16 years can give her consent under section 375 I.P.C. However, having regard to the fact that the victim went on a motor cycle of the appellant and though the prosecution case in the fardbeyan by the father that the victim went under some deception. But, hencee, the conduct of the victim that on the discloser of the accused appellant 7 that mother is seriously ill she proceeded without any query or without visiting house and without intimating her family members is a conduct which shows an element of conduct other than enticement or abduction. However, the mode and manner in which victim proceeded with the appellant does not indicate that she was kidnapped or enticed away but rather gave her consent she went on motor cycle did not raise any halla and did not protest when there was several opportunity to resist or to raise halla and, hence, it is apparent that she was a consenting party and this view finds support from her love letters. The age of the victim was also of consenting age as per section 375 of the I.P.C. a girl more than above 16 years to gave consent for sexual intercourse. However, learned trial court has acquitted the appellant for the offence under section 366 A of I.P.C. and neither appellant nor any family member of the appellant preferred appeal against acquittal for the offence under section 366 I.P.C. However, having regard to the facts and circumstances when there was several opportunity to the victim to raise halla but instead of proceeding or raising halla she went on motor cycle of the appellant and different places and even at the house of the sister of the appellant and then to Allahabad to get the marriage registered. 11. Hence, taking into consideration the entire facts and circumstances it is apparent and and I come to the irresistible conclusion that the victim was a consenting party to the sexual intercourse. The trial court though held that she had cohabitated without her will or without consent as consent given was clouded under duress and that the appellant is her husband is without any basis and against the material available on record. The circumstance shows that 8 she was a consenting party and there is no circumstance to suggest that consent was given in duress or the appellant was her husband. However, whether the appellant is husband of the victim or not is not material if the consent was there. Taking into consideration the entire facts and circumstances for the moment she is alleged to have been kidnapped and sat on the motor cycle itself she was a consenting party and she moved one place to another without any protest or without any objection itself indicates that she was a consenting party which is supported by the love letters and, hence, I find and hold that having regard to the facts and circumstances the offence under section 376 of I.P.C. is not made out and, hence, the order of the conviction and sentence against the appellant is set aside. The appeal is allowed. Patna High Court,Patna. The 14th October, 2011 AnilKrSinha/N.A.F.R. (Gopal Prasad)