JUDGMENT
Vishnudeo Narayan, J.
1. This appeal has been directed by the appellant named above against the judgment and order dated 24.8.1996 passed in Sessions Trial No. 87/1994 by Mr. Subhash Chandra Jha, Additional Sessions Judge, Bermo at Tenughat whereby the appellant was found guilty for the offence punishable under Section 376, I.P.C. and he was convicted and sentenced to undergo R.I. for seven years and to pay a fine of Rs. 25,000/- to be paid to the victim Meena Kumari and in default thereof to undergo S.I. for two years. However, the appellant and other three accused persons were acquitted for the offence under Sections 323 and 498A, I.P.C. and 3 and 4 of Dowry Prohibition Act.
2. The prosecution case has arisen on the basis of a petition of complaint filed by Manna Ram Mahto lodged before the Court of A.C.J.M., Bermo at Tenughat on 6.4.1991 regarding the occurrence which is said to have taken place on 13.3.1991 and 20.3.1991 which was forwarded to the O/C Nawadih P.S. for institution of the case, its investigation and submission of final form. On the basis of said complaint petition a case under Sections 498A and 323, I.P.C. and under Sections 3 and 4 of Dowry Prohibition Act was instituted against the appellant and three other persons on 25.4.1991 and charge-sheet was submitted after investigation for the offence aforesaid. The learned Magistrate in seisin of the trial after recording of the evidence of the prosecution witnesses including that of Meena Kumari, the alleged victim of ravishment by the appellant for three months found prima facie case for its commitment to the Court of Sessions and vide order dated 26.2.1994 the case was committed to the Court of Sessions for trial. Thereafter charge under Section 376 was framed against the appellant and further a charge under Sections 323 and 487A, I.P.C. and 3 and 4 of the Dowry Prohibition Act was framed against all the accused persons including the appellant.
3. Complainant/informant Manna Ram Mahto is the father of Sttanti Devi and Meena Kumari. Marriage of Shanti Devi was solemnized with the appellant in July, 1988 as per Hindu religion and rites and Shanti Devi led her conjugal life with the appellant and during the course of her conjugal life she was blessed with a daughter and a son. It is alleged that Shanti Devi was not having good health during the period of her second pregnancy and the appellant brought Meena Kumari, the younger sister of his wife, for the care and nursing of Shanti Devi to his house from her parents house and during the stay of Meena Kumari in his house he developed illicit sexual intercourse with Meena Kumari as a result of which said Meena Kumari became pregnant. The prosecution case further is that during the illness of Shanti Devi the appellant along with his father Jaleshwar Mahto and mother Tungia Devi started treating her with cruelty and compelled her to bring Rs. 20,000/- from her parents and when the said demand was not fulfilled she was assaulted and turned out from her matrimonial home and she was also threatened that if the demand is not fulfilled she will be done to death and finding no way out Shanti Devi returned to her parents house. It is also alleged that the appellant along with all other accused persons came to the house of the complainant where they disclosed their intention to get the marriage of Meena Kumari solemnized with the appellant and on protest by the complainant/ informant and others they attempted to take away the female child of Shanti Devi and they also assaulted Shanti Devi and an attempt was also made to take away Meena Kumari with them.
4. The appellant and other acquitted accused persons have denied the charge and claimed themselves to be innocent and to have committed no offence and they have been falsely implicated in this case.
5. In support of the prosecution case besides P.W. 3 Manna Ram Mahto, the informant, P.W. 1, Meena Kumari, the alleged ravished woman, P.W. 2, Panwa Devi, her mother and P.W. 4, Banshidhar Mahto, a co-villager have taken oath for the prosecution. P.W. 5 is a formal witness who has proved the formal F.I.R.I.O. has not taken oath in this case for the reasons best known to the prosecution. Shanti Devi, the wife of the appellant has got herself examined as D.W. 1 in this case. Ext. 2 is the petition of complaint which is the basis of this prosecution case.
6. In view of the oral and documentary evidence on the record the learned Court below found the appellant guilty only for the offence under Section 376, I.P.C. and has convicted and sentenced him as stated above. However, the other three co-accused persons and the appellant were not found guilty for the offence under Sections 323 and 498A, I.P.C. and for the offence under Sections 3 and 4 of the Dowry Prohibition Act and they were acquitted.
7. Assailing the impugned judgment vehemently as perverse and not based on the evidence on record it has been submitted by the learned Counsel for the appellant that there is no allegation of any ravishment of P.W. 1, Meena Kumari by the appellant in the petition of complaint which simply states that the appellant has illicit connection with Meena Kumari as a result of which she is said to have given birth of a child which by no state of imagination can be said to be an offence of rape when Meena Kumari herself was a major at the time of the alleged occurrence. It has also been submitted that Panwa Devi, the mother of Meena Kumari has deposed that Meena Kumari is 1 1/2 years younger to Shanti Devi and the learned Court below has assessed the age of Shanti Devi on 5:2.1996 as 28 years and in this view of the matter the age of Meena Kumari in the year 1991 can never be less than 21 years. It has also been submitted that the charge under Section 376, I.P.C. framed against the appellant for having committed rape on Meena Kumari on 28th March, 1991 and onwards for several times is totally unfounded vitiating the entire trial. Lastly it has been submitted that P.W. 1, Meena Kumari in her evidence on oath has deposed to have expressed her desire and given her consent for marrying Dilip Mahto, the appellant and under such a situation it can safely be inferred that had there been any sexual intercourse between Meena Kumari and the appellant, though denied, is a consented sexual intercourse and in this view of the matter no offence under Section 376, I.P.C. is at all made out against the appellant.
8. Learned A.P.P. has submitted that P.W. 1 Meena Kumar was a minor below 18 years of age at the time of the occurrence and she was ravished by the appellant in his own house when she was brought there for the nursing of the wife of the appellant and she was subjected to continuous sexual intercourse against her Will as well as without her consent as a result of which she became pregnant and gave birth to a child. It has also been submitted that the offence is more heinous as ravishment has been committed to the younger sister of her wife and after the ravishment the appellant persuaded her not to disclose in respect thereof on the false pretext of solemnizing his marriage with her. Lastly it has been submitted that in view of the evidence on the record the learned Court below has rightly convicted the appellant and, thus, there is no illegality in the impugned judgment and order.
9. Section 375, I.P.C. defines rape. Relevant extract of this section as it pertains to this case reads thus :
“A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :
First – Against her Will.
Secondly – Without her consent,
xxx xxx xxx
xxx xxx xxx”
10. Admittedly P.W. 1, Meena Kumari, the daughter of the informant is the younger sister of D.W. 1, Shanti Devi, the wife of the appellant and during the second pregnancy of Shanti Devi in her matrimonial home P.W. 1, Meena Kumari is brought there by the appellant to look after and nurse Shanti Devi aforesaid. According to the prosecution case Meena Kumari aforesaid had lived in the house of the appellant for a period of three months since Durga Puja prior to the occurrence. There is averment in para 4 of the petition of complaint which is the basis of this case that during the said period the appellant had illicit connection with Meena Kumari as a result of which she has conceived. A plain reading of the averment made in the complaint petition of the informant and evidence of P.W. 1, Meena Kumari read with the evidence of P.W. 2 and P.W. 3 i.e., her parents clearly suggest that P.W. 1, Meena Kumari is willing and full consenting party to the sexual intercourse with the appellant and she has sexual intercourse with the appellant on several occasions for a long time and in such a situation P.W. 1 is alleged to have been conceived as a result of said sexual intercourse. P.W. 1, Meena Kumari in para 1 of her evidence has deposed that she had lived in the house of the appellant for three months and during that period the appellant has ravished her. She has further deposed that she had reported the matter to her elder sister Shanti Devi whenever she was ravished by the appellant and on protest by Shanti Devi to the appellant the said Shanti Devi was assaulted and intimidated to be done to death. In para 5 of her examination-in-chief she has specifically stated that the appellant always used to make a promise of marrying her at the time of the said ravishment. In para 7 of her cross-examination she has deposed that even in her parents’ house the appellant used to express his desire to marry her whenever he came there and on the request of the appellant she has consented to marry him and this consent was expressed by her in her parents’ house. She has also deposed that she has told her parents that she intends to marry the appellant which was protested by her parents. It appears from the evidence of P.W. 1 that during the stay of P.W. 1, Meena Kumari in the house of the appellant her father P.W. 3 has visited thrice and P.W. 1 did not acquaint him with the affairs going on between her and the appellant and she has concealed it from her father. The conduct of P.W. 1 in respect thereof gives an inkling of the fact that she has not been ravished against her Will and consent rather the sexual intercourse with her was definitely not against her Will and without her consent. D.W. 1, on the other hand, has deposed that P.W. 1, Meena Kumari has never reported to her regarding the fact of sexual intercourse or her ravishment as the case may be by the appellant. Now a pertinent question arises at this stage as to whether P.W. 1, Meena Kumari was a minor at the relevant time. This is the crux of the matter. It is the settled principle of law that consent for sexual intercourse by a minor cannot be said to be a free consent. It is pertinent to mention at the very outset that there is no medical evidence on the record as she was not examined by any doctor for ascertaining her age. There is also no averment in the petition of complaint disclosing the age of P.W. 1, Meena Kumari. However, P.W. 1, Meena Kumari has deposed that she was 15 years old when she was ravished by the appellant. She has disclosed her age to be 17 years on 16.8.1994 and the learned Court below assessed her age about 18 years. The occurrence is of the month of March, 1991 and she has been in the house of the appellant for a period of three months from Durga Puja prior to the said occurrence. Therefore, according to her evidence her age comes to be 14 years at the relevant time. P.W. 3, the informant, has deposed in para 12 of his evidence that P.W. 1, Meena Kumari was 13-14 years old at the time when she was ravished and he has denied the fact that he has stated before the police that Meena Kumari was 19-20 years old at that time. I.O. has not taken oath in this case and due to non-examination of the I.O. the appellant has been debarred of controverting the evidence of P.W. 3 as stated by him before the I.Q. regarding the age of P.W. 1, Meena Kumari and this aspect of the matter has definitely caused serious prejudice to the appellant. P.W. 2, the mother of Meena Kumari aforesaid has deposed that Meena Kumar is younger to Shanti Devi by VA years. Shanti Devi has taken oath in this case as D.W. 1 on 5.2.1996 in which she has stated her age to be 28 years and the learned Court below assessed her age to be 26 years. D.W. 1 has also deposed that Meena Kumari is younger to her by 1 1/2 years. It, therefore, appears that in the year, 1990 Meena Kumari was aged about 21 years and as per evidence on the record she was a major girl. In view of the evidence of P.W. 2 read with D.W. 1 it is crystal clear that P.W. 1, Meena Kumari and her father (P.W. 3) have wrongly stated the age of Meena Kumari and their evidence, therefore, is not worthy of credit in respect thereof. In view of the evidence aforesaid P.W. 1, Meena Kumari was definitely not minor below 18 years of age during the period of Durga Puja of the year, 1990. It is equally crystal clear from the testimony of P.W. 1, Meena Kumari that it is a case where on her own showing she was willing and full consenting party to that of sexual intercourse with the appellant. It also appears that P.W. 1, Meena Kumari continued without any protest, demur or objection with the affair of having sexual intercourse with the appellant for a period of three months in his house prior to the institution of the case. In this view of the matter the allegation, P.W. 1 Meena Kumari was subjected to sexual intercourse with the appellant on the assumption based on an assurance or promise or giving out an understanding that the appellant shall marry her, cannot amount to the lack of consent for sexual intercourse as far as P.W. 1, Meena Kumari is concerned. In view of the finding above that P.W. 1, Meena Kumari is major at the relevant time and if she gives consent even on any of the aforesaid assumptions and, thus, she has sexual intercourse with the appellant she will be under all circumstances and in all respects considered to be a consenting party. This consented sexual intercourse between P.W. 1 Meena Kumari and the appellant continued for three months until the day of the reckoning when P.W. 3, the informant filed this case.
11. In the facts and circumstanes of this case P.W. 1 is deemed to have given consent as far as sexual intercourse is concerned and such consent cannot be called as an illegal consent so far the applicability of Section 376, I.P.C is concerned. Viewed thus, in such a situation which is explicit from the evidence on the record, the accused appellant cannot be deemed to have been prima facie committed the offence of rape under Section 376, I.P.C. I am fortified in my view as per the ratio laid down in the case of Sahdeo Pandit and Ors. v. State of jharkhand and Anr., 2002 (1) JLJR 431; Arjun Gupta v. State of Jharkhand, 2001 (3) JCR 311; and Baldhari Ohdar v. State of Bihar, 2000 (2) ECC 713. The learned Court below has failed to properly weigh the evidence on the record in proper perspective and has gravely erred in finding the appellant guilty for the offence under Section 376, I.P.C. in this case.
12. It is, therefore, evident from the discussions above that the impugned judgment of the learned Court below suffers with illegality which required an interference therein. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the Court below is hereby set aside. The appellant is not found guilty for the offence under Section 376, I.P.C. levelled against him and he is acquired and he is also discharged from the liability of the bail bonds.
