Consent immaterial in case of a minor girl: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.2215 Arising Out of PS. Case No. 92 Year 2012 Thana UDAKISHUNGANJ District Madhepura Lalo Sharma S o Dhyani Sharma resident of village Mauja Baliya Basa Gopalpur P.S. Udakishunganj District Madhepura The State of Bihar ... Appellant s ... Respondent s CRIMINAL APPEALNo. 2215 Arising Out of PS. Case No. 92 Year 2012 Thana UDAKISHUNGANJ District Madhepura Vijay Sharma S o Bechan Sharma resident of village Baliya Basa Gopalpur P.S. Udakishunganj District Madhepura The State of Bihar ... Appellant s ... Respondent s In CRIMINAL APPEALNo. 2215 For the Appellant s Mr.Anant Kumar 1 Advocate. Mr. Sanjay Kumar Advocate. For the Respondent s In CRIMINAL APPEALNo. 2215 For the Appellant s Mr.Anant Kumar 1 Advocate. Mr. Sanjay Kumar Advocate. For the Respondent s Mr.Binod Bihari Singh A.P.P CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR Date : 10 11 2020 Mr. S.A.Ahmad A.P.P Both the appeals arise out of the same judgment of conviction and order of sentence hence both were heard together and are being disposed off by this common judgment. 2. Both the appellants Lalo Sharma and Vijay Sharma faced trial in Sessions Trial No. 26(A) of 2013 before learned Additional Sessions Judge I Madhepura. The trial arose out of Udakishunganj P.S. Case No. 912 registered in pursuance of the order passed under Section 156(3) Cr.P.C Patna High Court CR. APPNo.2215 dt.10 11 2020 whereby Complaint Case No. 421 of 2012 brought by PW 7 against four persons was ordered to be registered as a police 3. The learned trial Judge found the appellant Lalo Sharma guilty for the offence under Section 376 IPC and sentenced him to undergo rigorous imprisonment of 10 years and to pay a fine of Rs.5 000 and in default of payment of fine to further undergo simple imprisonment of one year. The learned trial Judge further convicted both the appellants for offence under Section 312 I.P.C. and awarded rigorous imprisonment of 7 years and fine of Rs.5000 against both the appellants and in default of payment of fine the appellants were directed to further undergo simple imprisonment of one year. Sentences against the appellant Lalo Sharma were to run concurrently. 4. The conviction and sentence have been challenged on the ground that there is no allegation or evidence on the record that the appellants caused miscarriage to a woman hence the conviction under Section 312 IPC is based on conjectures and surmises. 5. Conviction of the appellant Lalo Sharma under Section 376 I.P.C. has been challenged on the ground that serious infirmities in the prosecution evidence have been Patna High Court CR. APPNo.2215 dt.10 11 2020 ignored by the learned trial Judge 6. The prosecution case as disclosed in the First Information Reportis that the complainant a girl about 15 years had gone to cut grass for feeding the animals about 3½ months prior to filing of the complaint petition dated 30.04.2012. Both the appellants dragged her inside the crop field. Accused Jawahar Sharma put his hand on her mouth and appellant Lalo Sharma ravished her. Due to threat by the accused persons on the life of family members the complainant did not disclose about the occurrence and later on appellant Lalo Sharma was off and on in physical relation with her alluring her that Lalo would marry with her. Others also established physical relation with her. The complainant became pregnant and on 21.04.2012 the accused persons brought her to a doctor to administer medicines for miscarriage but the complainant refused to take the same and made alarm as well as disclosed to the public about whatever had happened against her. The date of is disclosed in between February’2012 to 7. During investigation of the case statement of the victim was recorded under Section 164 Cr.P.C. She has admitted about that statement in her deposition before the court as PW 7 Patna High Court CR. APPNo.2215 dt.10 11 2020 In the statement before the Magistrate she stated that only appellant Lalo Sharma had ravished her and others acted as a C.I.D. to Lalo Sharma 8. After investigation the police submitted chargesheet and the learned trial Judge framed charges under Sections 323 376 312 and 504 of the Indian Penal Code. The impugned judgment does not speak about acquittal or conviction under Sections 323 and 504 of the Indian Penal Code. However by necessary implication the appellants were acquitted for those 9. During trial prosecution examined altogether 10 witnesses. PW 1 Charitar Sharma is grand father of the victim girl and he has supported the allegation as hearsay evidence PW 2 Prakash Sharma PW 3 Surendra Sharma PW 4 Haldhar Sharma PW 5 Naval Sharma have not supported the prosecution case as such the prosecution declared them hostile PW 6 Pawni Devi is mother of the victim girl and she has supported the allegation as hearsay witness on the disclosure statement of the victim. 10. PW 7 deposed consistent with what she had stated in the F.I.R. The cross examination of the witness does not reveal any infirmity or otherwise untrustworthiness of the Patna High Court CR. APPNo.2215 dt.10 11 2020 witness. PW 7 disclosed her age as 15 years and she was not cross examined even as suggestion that her age is above the age 11. The doctor who examined the victim medically on 24.08.2012 assessed her age in between 14 16 years and the learned Magistrate before whom her statement under Section 164 Cr.P.C. was recorded assessed the age of the victim as 15 years. No contrary material is available on the record to suggest that the victim was above 16 years of age. As such there is no merit in the contention of learned counsel for the appellants that the victim was a consenting party. Consent of a girl under 16 years age was immaterial on the date of offence in view of definition of “rape” under Section 375 of the Indian Penal Code. The medical opinion of the doctor brought on the record by PW 8 was that the victim had given birth to a child 12. Since there is no infirmity in the trustworthy evidence of PW 7 who is corroborated by the medical evidence and the victim was below 16 years of age on the date of alleged offence committed against her hence even if she consented for subsequent sexual relationship on allurement of marriage by the appellant Lalo Sharma the offence of rape is clearly proved Patna High Court CR. APPNo.2215 dt.10 11 2020 against the appellant Lalo Sharma beyond doubt. Hence his conviction under Section 376 IPC requires no interference. 13. Section 312 of the Indian Penal Code reads as Causing miscarriage.— Whoever voluntarily causes a woman with child to miscarry shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman be punished with imprisonment of either description for a term which may extend to three years or with fine or with both and if the woman be quick with child shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine Explanation.—A woman who causes herself to miscarry is within the meaning of this section. 14. Evidently there is no evidence that any of the appellants were involved in causing miscarriage of a woman. As such conviction recorded under Section 312 I.P.C. with the aid of Section 34 of the Indian Penal Code is not sustainable in law as the conviction is based on no evidence. Therefore both the appellants are hereby acquitted of the charge under Section 312 of the Indian Penal Code. Sharma stands allowed. 15. In the result appeal of the appellant Vijay Patna High Court CR. APPNo.2215 dt.10 11 2020 16. Mr. Sanjay Kumar learned counsel for the appellant Lalo Sharma has lastly prayed for reduction of sentence against the appellant Lalo Sharma passed under Section 376 of the Indian Penal Code to the period already undergone on the ground that the appellant Lalo Sharma is a young boy and has already undergone more than the minimum sentence of seven years prescribed for offence under Section 376 IPC applicable on the date of alleged occurrence. 17. It appears that appellant Lalo Sharma filed a petition before the court below on 27.04.2013 along with school transfer certificate and claimed that his date of birth is 15.05.1996. Therefore his case should be transmitted to the Juvenile Justice Board. The learned Magistrate transmitted the record to the Juvenile Justice Board and the Board entered into an enquiry about the age of the appellant Lalo Sharma. During enquiry school registers were produced and the Headmaster of the school Mr. Arun Kumar appeared before the Board and supported that in the school register date of birth of the appellant Lalo Sharma is recorded as 15.05.1996. The statement of Mr. Arun Kumar was consistent with the school register available on the record. The mother of the appellant Lalo Sharma had filed an affidavit that the date of birth of the Patna High Court CR. APPNo.2215 dt.10 11 2020 appellant Lalo Sharma was 15.05.1996. Her affidavit is dated 02.07.2013 wherein she stated that her sonhas crossed the age of 17 years. 18. In spite of the aforesaid material the court below called for a report from the medical board and the medical board opined that the appellant Lalo Sharma was between 20 22 years on the date of examination. The Court below relied upon the medical board’s opinion and by order dated 31.10.2013 held that the appellant was not a juvenile on the date of occurrence. 19. Though the said order got finality however this Court is competent to consider the legality of the said order while exercising its power of reduction of sentence under Section 386 Cr.P.C. Even under Rule 12(3) of the Juvenile JusticeRules 2007 there was consistent provision to that as contained in Section 94 of the Juvenile Justice Act 2015 that while conducting enquiry to determine the age of the child the Board shall take into consideration the evidence of the date of birth certificate from the school or matriculation or equivalent certificate and in absence thereof the birth certificate granted by the Corporation or Municipal Authority and in Patna High Court CR. APPNo.2215 dt.10 11 2020 absence of both the categories the ossification test was to be done and Medical aid to be considered for age determination 20. Learned counsel for the State does not dispute the factual and legal position above in the matter of claim of 21. In the present case the date of birth certificate from the school was on the record and the same was thoroughly verified and found genuine. Hence the court below should have followed the prescribed Rules. 22. Considering the aforesaid legal infirmity in the age determination of the appellant the sentence passed against the appellant Lalo Sharma is hereby reduced to the period already undergone. However the appellant Lalo Sharma shall pay fine as directed by the trial Judge and the same shall be given to the victim of the crime 23. With the aforesaid observation appeal of the appellant Lalo Sharma is partly allowed and partly dismissed. Birendra Kumar J

Summary: Maintaining sexual relations with a girl less than 16 years of age based on promises of marriage would be considered rape, irrespective of consent. The single bench consisting of J. Birendra Kumar shed light on Section 376 and 312 of the Indian Penal Code in the matter of Lalo Sharma S/o Dhyani Sharma, resident of village/Mauja – Baliya Basa Gopalpur, P.S. Udakishinganj, District – Madhepura v. The State of Bihar [Criminal Appeal (SJ) No. 222 of 2015]. The facts of the case are such that a girl of 15 years of age was dragged inside a crop field by the appellants where she was present to cut grass for feeding animals. Lalo Sharma then with the help of the other appellants ravished her and thereafter continued to have an on and off physical relation with her by alluring her that he would marry her. Due to the threat of the accused persons on the life of her family members, the complainant did not disclose about the occurrence. Consequently the other appellants too established a physical relation with her. The complainant became pregnant to which the appellants asked to undergo a miscarriage. The complainant refused to do so and subsequently also registered an FIR. Charges under section 323, 376, 312 and 504 of the IPC were placed on the appellants of which they were acquitted under Sections 323 and 504. During trial in the Sessions Court, the Judge found that the appellant Lalo Sharma was guilty for the offence under Section 376 IPC and sentenced him to rigorous imprisonment of 10 years along with a fine of Rs.5,000/-, the default of which would attract another year of simple imprisonment. The other appellants were sentenced to 7 years of rigorous imprisonment under Section 312 of IPC along with RS.5,000/- fine, the default of which would again attract another year of simple imprisonment.