IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.369 OF 1998 Against the judgment of conviction dated 20.08.1998 and order of sentence dated 22.08.1998 passed by 5th Additional Sessions Judge, Bhagalpur in Sessions Trial No.412 of 1995/Trial No.84 of 1996. 1. BABABU @ BABALA TANTI, Son of Parmeshwar Tanti,Resident of Village-Fulwariya, P.S.- Jagdishpur, District-Bhagalpur. 2. BILLO TANTI, Son of Laxmi Tanti, Resident of Village-Fulwariya, P.S.Jagdishpur, District-Bhagalpur .... Appellants Versus State Of Bihar.... .... Respondent With Criminal Appeal (SJ) No. 390 of 1998 ASHOK TANTI, Son of Sri Sukhdeo Tanti, Resident of Village-Fulwaria, P.S.Jagdishpur, District-Bhagalpur .... Appellant Versus State Of Bihar.... .... Respondent For the Appellants: Sri Radha Raman Verma, Advocate (Cr.Appeal No.369 of 1998) For the appellant: - Sri Pranav Kumar (Amicus Curiae) (In Cr.Appeal No.390 of 1998) For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The three appellants two in Cr.Appeal No.369 of 1998 and one in the other Criminal Appeal No.390 of 1998 were tried for committing offences under Sections 366A and 376 IPC by the learned 5th Additional Sessions 2 Judge, Bhagalpur in Sessions Trial No.412 of 1995 by judgment dated 20.08.1998, the appellants were held guilty of committing the two offences and were directed to suffer rigorous imprisonment for five years and seven years respectively. The sentences were directed to run concurrently. 2. Father of the victim(P.W.2)Latori Yadav @ Laturi Yadav lodged a report alleging that his daughter who was at his house on 05.08.1994 along with his other daughter, P.W.4 Mani Kumari, was asked by the three appellants, who came to his house to drive away the cow which had trespassed into the Parwal field. It is stated that the victim P.W.6 went to the field and drove the cow away, but thereafter she was captured by the appellants and taken away. She did not come back and search was made by P.W.2, during which course P.W.7 Bijoy Yadav informed P.W.2 Latori Yadav that he had seen the victim P.W.6(Sona Devi) accompanying Babala Tanti and Ashok Tanti towards market place but, she did not return even in the night. 3. The search continued and lastly the victim not coming back to her house on 07.08.1994, the FIR(Ext-1) was lodged, on the basis of which the investigation was taken up and the three appellants were sent up for trial. 3 4. During the course of trial, the informant, P.W.2 Latori Yadav @ Laturi Yadav turned hostile but stated that his daughter was aged about 17-18 years on the date of occurrence. His mother P.W.5 Sona Devi also turned hostile as did P.W.4 Mani Kumari, the younger sister of the victim who was very much present in the house by not supporting the prosecution charges and rather stated that her sister was elder to her by 10-12 years. The age of P.W.4 recorded by the court below was 8-9 years. Other witnesses, like, P.W.1 Jagdish Yadav, P.W.3 Domi Yadav also turned hostile. The evidence of P.W.6, the victim supported the charges as P.W.7 Bijoy Yadav @ Bijali Yadav also deposed that he had informed the father of P.W.6 that he had seen her going towards the market place along with appellants Babala Tanti and Ashok Tanti. 5. So far as the evidence of P.W.6, the prosecutrix is concerned, she has stated that she was captured by appellants Ashok Tanti, Babala Tanti and she was taken to a Khesari field where she was raped by Ashok Tanti in the manner as was stated by her in her evidence. In her cross-examination, she admitted that she was carrying an illicit relationship with appellant Ashok Tanti for last two years and was also moving out to different places with the said appellant. The relationship appears so deep that she 4 after being shown a photograph of herself and appellant Ashok Tanti, she admitted that she got herself photographed with the appellant Ashok Tanti. She admitted further that her menstrual cycle had stopped since last two months and probably she was pregnant and further that she had got married to Ashok Tanti though she stated that Ashok Tanti had forcibly put Sindur on parting of her hairs. During her cross- examination, she was shown some prescriptions in respect of herself issued by a doctor in which she had described herself as the wife of appellant Ashok Tanti. This fact gets corroborated by Ext-E, the affidavit which indicates as if the appellant Ashok Tanti had solemnized his marriage with the victim. The prescription which described the victim as wife of appellant Ashok Tanti further indicated as if she was carrying a child from appellant Ashok Tanti in her womb. 6. Thus, what I find from the evidence of P.W.6 is that she was enjoying the relationship with appellant Ashok Tanti and was not forced to go out to different places with him, so much so that she did not have any hesitation in doing so as she had cordial relationship with the appellant. This was the reason that she got pregnant and was taken to the doctor by appellant Ashok Tanti. What appears to me is that 5 probably appellant Ashok Tanti had either dumped or was about to dump the lady who had got pregnant and this was the reason that the lady was coming out with the story of being raped by appellant Ashok Tanti and after being misled to go out of her house by remaining two appellants. It was probably an attempt to file the case so as to gaining bargaining power against appellant Ashok Tanti so that he was forced to take the lady back as his wife to his house. The age as per his father P.W.2 of the lady on the day of occurrence was 18 years. She was admitting having sex freely with appellant Ashok Tanti without any hesitation. If it was so as appears the truth then it could not be a case under Section 376 IPC. 7. The story that any cow had trespassed into a Khesari field has not been established and I am of the opinion that particular part of the story was invented so as to making out a case that the lady was misled to go with the appellants. 8. In the above view of the matter and considering the totality of the circumstances which appear emerging from the evidence of the victim, I find that the judgment of conviction and sentences passed upon the appellants were not sustainable in law. 9. In the result, the two appeals are allowed 6 and the appellants are acquitted of the charges for which they have been convicted. 10. Sri Pranav Kumar, has appeared in Jail Appeal of appellant Ashok Tanti which has been registered as Cr.Appeal No.390 of 1998 as Amicus Curiae. He has assisted the Court immensely and in my considered view, he deserves a fee of arguing the appeal which should be paid by the High Court Legal Services Committee, for which purpose, let a copy of the first and the last pages of the judgment be made over to him. Patna High Court, Dated, the 25th day of November, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)