1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.620 of 2007 - - - - Against the judgment of conviction and order of sentence dated 20.4.2007 and 26.4.2007, respectively, passed by Additional Sessions Judge, Fast Track Court No.2, Muzaffarpur, in Sessions Trial No. 434 of 2003. ====================================================== Md.Aley, son of Md. Jaheer, resident of Village Munni Bagari, Police Station Piyar, District Muzaffarpur .... .... Appellant Versus The State Of Bihar .... .... Respondent ====================================================== Appearance : For the Appellant : Shri Satya Narayan Mishra, Advocate For the Respondent : Shri Ajay Mishra, A.P.P. ====================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The present appeal is directed against the judgment of conviction dated 20.4.2007 passed by Fast Tack Court 2, Muzaffarpur, in Sessions Trial No. 434 of 2003 by which, while convicting the appellant for committing offence under Section 376(1) of the Indian Penal Code the trial court was acquitting accused Md. Jaheer with the present appellant who had also been put on trial with the present appellant in the above noted Sessions Trial by being charged under Sections 315/511 of the Indian Penal Code. 2. The basis for initiation of the case was a complaint petition which was filed on 15.2.2003 before the Chief Judicial Magistrate, Muzaffarpur, a copy of which was forwarded by to the police under Section 156(3) Cr. P.C. for investigation as a result of which Piyar P.S.Case No. 12 of 2003 was registered. It was stated in the complaint petition by P.W. 12 Afsana Khatoon that she was residing in her Mama’s house who had brought her up after bringing her there from her parents’ Village. 2 There was a flood as a result of which Mama of the complainant left his house and had shifted into his old house along with the complainant. It was stated by the complainant P.W. 12 that about 6-7 days prior to the filing of the complaint petition, she came into the new house at abut 4 P.M. where she was caught by the present appellant and was taken inside the abandoned house and was raped. When the complainant stated to the appellant that she will inform her Mama and further the villagers too, the appellant assured her getting himself married to her and under that promise the appellant continued having sexual intercourse with P.W. 12 so much so that she conceived on that account. The complainant stated that she informed Md. Jaheer, the father of the appellant, about the acts of the present appellant and having conceived from him under the promise of the appellant of getting married to her, and the said accused Md. Jaheer assured that it may be like that but one month prior to the filing of the complaint petition, the appellant took the lady to his house and his father and mother administered any unwholesome substance to the lady for causing miscarriage of the child which was in her womb but it did not miscarry. Thereafter, the complainant along with her Mama and mother went to the house of the appellant from where she was driven out after being abused. It was stated that the appellant refused to get himself married to her. It was also stated that a Panchayati was also convened on 14.2.2003, but the accused persons did not turn up in that panchayati and by being forced under the above circumstances the complainant was compelled to file the complaint petition. 3. P.W.13, S.I. Misrilal Yadav, the Officer-in-charge of the Police Station, drew up the F.I.R. of the case and proceeded to investigate it. He inspected the place of occurrence and recorded the statements of witnesses. Besides, he arrested the appellant and forwarded him to jail custody and after completing the investigation, submitted charge sheet for trial of the accused persons. 3 4. A Board of Doctors was constituted and that Board examined the lady and assessed her age between 18 to 19 years on 17.3.2003, i.e., about two months after the occurrence which could be said to have occurred from July, 2002 to January, 2003. The appellant has not taken any specific defence as is generally found except that he has falsely been implicated in the case. 5. During the course of hearing of the present appeal, it was argued that the act complained of appears consented as it was not on a solitary occasion that the lady alleged having been raped by the appellant rather the evidence of the complainant P.W. 12 indicates as if she was having sexual intercourse with the present appellant time and again so much so that she conceived from the appellant. It was contended that holding out a promise to the lady of getting married to her was not true and the fact of the matter was that she fell in love with the appellant out of her free will and not getting herself married to the appellant, she was dragging the appellant in the case with false charge. 6. The prosecution examined fifteen witnesses out of whom P.Ws. 2,3,4 and 5 were witnesses who testified that a Panchayati was convened at the house of Mustaque and these witnesses had participated in the Panchayati in which the appellant also participated and denied having sexual intercourse with the complainant. But, what appears from the evidence of these witnesses is that there was no written proceedings of the Panchayati and most of the witnesses had not made statements to that effect before the Investigating Officer. P.W. 3 Jainul Haque has stated that he had not made any statement before the Investigating Officer. Likewise, P.Ws. 2 and 3 made similar evidence of not being questioned by the police or giving statement to it. So far as the recording of the proceedings of Panchyati is concerned, the witnesses like P.Ws. 3, 4 and 5 stated that no record of the Panchayati was made. But, if one considers the evidence of P.W. 2 one 4 could find that the proceeding was drawn up and that a copy of the same was handed over to the police Officer P.W. 13. However, the evidence of P.W. 13 does not indicate that he had ever been handed over a copy of the proceeding. When the evidence of P.Ws. 2,3, 4 and 5 are contrasted against the statement given by the complainant in her written complaint, what the Court finds is that the written complaint does state that a Panchayati was convened, but it was categorically stated in the last line of the written complaint that the accused refused to participate or appear in that Panchayati. As such, the claim of these witnesses that the present appellant Md. Aley had appeared in the Panchayati before them and had admitted indulging in the act as complained of, appears not acceptable to the Court. Moreover, the man at whose Darbaja the Panchaayati is said to have been convened, i.e., Mustque, has not been examined to state that indeed a Panchayati was convened at his Darbja. Thus, what I find is that the explanation which was given in the complaint petition for lodging such a belated complaint petition for an occurrence which had started sometimes in July, 2002 appears not acceptable to the Court. That further cements the inference that the lady was a consenting party to the act complained of and for any particular reason, may be the afterthought, to obtain a position of marriage with the appellant, she was coming out with the complaint petition alleging that she was duped and, thus, exploited and, as such, the offence of rape. 7. The facts stated by the lady, P.W. 12 itself indicate that she enjoyed the position of being the sex partner of the appellant. She was aged 18 to 19. Her mother P.W. 11 who also did not give any statement to the Police stated that she had also been abandoned by her husband advised just after the complainant born to take shelter in the house of P.W. 6 Hasina Khatoon, the wife of Mama of the complainant. Under such circumstances, probably, the lady was herself having a 5 fling with the appellant and under the facts of the case what this Court finds is that the offence under Section 376 of the Indian Penal Code was not constituted. 8. In the result, the appeal succeeds and the same is allowed. The conviction of the appellant under Section 376 of the Indian Penal Code and sentence which was passed upon him are hereby set aside and the appellant is acquitted. 9. The appellant Md. Aley is in custody. He is directed to be released forthwith if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 25th August, 2011 Kanth/N.A.F.R.