Criminal Appeal (SJ) No. 109 OF 1996 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Munna Mistry, S/o Awadhesh Mistry, Resident of Village-Tendua, Tola-Shantinagar, P.S.- Aurangabad (M), District-Aurangabad. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Shree Krishna Prasad Singh, Adv. : Mr. Mahendra Kishore Singh, Adv. : Mr. Bhashkar Sharma, Adv. For the State : Mrs. Nirmala Kumari, 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 Sections 366A and 376 IPC and sentenced to RI for ten years under both counts by the 2nd Additional Sessions Judge, Aurangabad in Sessions Tiral No. 191/94/19/95 by a judgment dated 22.04.1996. 2. The case of the prosecution is that daughter of the informant did not return after she went to ease herself on 18.02.1994 and it was suspected that the appellant had kidnapped her. Subsequently, the girl was recovered and she gave incriminating statement recorded under Section 164 Cr.P.C. 3. During trial, the prosecution in all examined fifteen witnesses out of whom P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 7 have been declared hostile. P.W. 9, P.W. 11, P.W. 13 and P.W. 14 are 2 hearsay witnesses. P.W. 10 is the victim and P.W. 12 is the Doctor who examined her. 4. The defence examined two witnesses on its behalf and brought the documents to show that the girl was an adult on the date of occurrence being aged about twenty years. 5. Since the case was merely based on the evidence of P.W. 10 and P.W. 12 it is necessary to examine the evidence of these two witnesses. 6. From the evidence of P.W. 10, it appears that she has stated in Court that she was kidnapped by the appellant but on a close examination of her evidence she admitted that she had traveled various places in eleven days and it does not seem probable that she would not have raised alarm in this period. It is for this reason even the Court below had concluded that it appears to be a consent between the parties. 7. From the evidence of the Doctor, I find that she had assessed the age of the victim as being between 16 to 18 years and therefore giving benefit of doubt that the victim was aged about 18 years it is difficult to uphold the conviction of the appellant both under Sections 376 and 366(A) IPC. She being an adult was fully competent to give consent to the appellant for acts that they had jointly committed. 3 8. In the result, the appeal is allowed and the judgment dated 22.04.1996 passed by the 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No. 191/94/19/95 is set aside. The appellant is discharged of the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 12th May, 2011. NAFR/Vikash/-