Criminal Appeal (SJ) No.393 OF 1994 [Appeal against the judgment and order dated 30.11.1994 passed by the 1st Assistant Sessions Judge, Araria in Sessions Trial No.306 of 1992/ 390 of 1993] VIDIYANAND CHOURASIA, SON OF MAKHAN CHOURASIA, RESIDENT OF VILALGE BANSBARI, POLICE STATION ARARIA, DISTRICT ARARIA …………………….. Appellant Versus THE STATE OF BIHAR ………….. Respondent For the Appellant : Mr. Uday Bhanu Roy, Advocate For the Respondent : Mr. J.K. Singh, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/s. 376 I.P.C. and sentenced to R.I. for five years by a judgment dated 30.11.1994 passed by the 1st Assistant Sessions Judge, Araria in Sessions Trial No.306 of 1992/ 390 of 1993. The case of the prosecution is that the informant was subjected to sexual intercourse on the promise of marriage by the appellant but refused to marry her subsequently. During trial the prosecution has examined five witnesses in all. Out of whom, P.W.3 is the victim herself and she has stated that the appellant had started physical relationship with her when she was aged 18 years and thereafter refused to marry her but now they are both married and had come to depose in the Court together. P.W.4 is the father of the said victim, whereas P.W.1 and P.W.2, who are - 2 - neighbours of P.W.4, have been declared hostile. P.w.5 is the doctor, who testified that the prosecutrix was carrying pregnancy of about seven months at the time of occurrence. No doubt, subsequently the victim had stated that she was tortured and turned away by the appellant but since the appellant has been charged only for the offence u/s.376 I.P.C. this Court can only consider as to whether in the facts of the case an offence under Section 376 I.P.C. is made out or not. In view of the positive evidence of the victim- prosecutrix that she was eighteen years of age at the time of occurrence and had entered into a physical relationship with the appellant with consent, I have no option but to allow this appeal and set aside the conviction, holding that no offence u/s.376 I.P.C. is made out. Hence, the appeal is allowed and the order of conviction and sentence passed against the appellant on 30.11.1994 passed by the 1st Assistant Sessions Judge, Araria in Sessions Trial No.306 of 1992/ 390 of 1993 is set aside. The appellant is discharged from the liability of his bail bonds. Patna High Court Dated, 8th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )