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Judgment
I.P. Singh, J.—Criminal Appeal No. 329 of 1990 has been heard along with Criminal Revision No. 823 of 1990 and the judgment will govern both of them.
Criminal Appeal No. 329/1990 directed against the judgment and on dated 31.8.1990 passed by Shri (sic) Prasad Shrivastava, Sessions Judge, sitamarhi in S.T. No. 84 of 1989. By this judgment the learned Sessions Judge had convicted the Appellant of the offence punishable u/s 376 of the Indian Penal Code and has sentenced him to undergo rigorous imprisonment for 3 years.
The prosecution case, in short, is that in between the night of 20/21 st November, 1988 the Appellant under the pre-(sic)xt of performing inter-caste marriage with the informant Bhagwati Kumari @ Devi allas Ranjani Kumari @ Devi (P.W. 3) kidnapped her, still a minor from the lawful custody of her parents and took her to (sic)owrah Railway Station. There on the pre(sic)xt of answering the call of nature he left P.W.3 alone and departed therefrom. When (sic) did not return back after a consider(sic) time P.W. 3 became anxious but was (sic)ped by an unknown Muslim gentle man (sic) took her to the South Port Police station from where she was produced be(sic) the Additional Collector (Judicial) (sic)ore South 24 Parganas West Bengal, learned Additional Collector (Judicial) directed her to be taken to Pupri in the district of Sitamarhi under police escort. accordingly, she was taken to Pupri where (sic) Fardbeyan (Ext. 4) was recorded on (sic)11.1988 by the Officer Incharge of Pupri (sic)ice Station on the basis of which a nal(sic) F.I.R. (Ext. 5) was drawn up. The (sic)ament of P.W. 3 (Ext. 2) u/s (sic) of the Code of Criminal Procedure, (sic) (in short ''the Code'') was recorded by Magistrate on 1.12.1988. To ascertain (sic)correct age a Medical Board was consist which submitted its report (Ext. 3) (sic) 7.2.1989 according to which she above 18 years of age on the date of examination. The police after complete the investigations submitted the charge (sic) under Sections 363, 366A and 376 of (sic) Indian Penal Code. The cognizance of (sic) offence was taken and the case was committed to the court of session. On trial for the offence under Sections 363, 366A and 376 of the Indian Penal Code by the learned Sessions Judge the above named sole accused Sanjay Kumar alias Sanjay Kumar Bubuna (present Appellant) was acquitted of the charges u/s 363 and 366A of the Indian Penal Code. He was, however, convicted under Sections 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 3 years. It is against this conviction that the present appeal has been filed.
In this appeal the Appellant has contended that the father of P.W. 3 had lodged informatory petition (Ext. C) on 24.11.1988 to the effect that P.W. 3 had left the house on 20.11.1988 after being annoyed with her parents. In Ext. C there is no allegation against the present Appellant even when it was lodged four days after the alleged occurrence. Moreover in her statement made u/s 164 of the Code (Ext. 2) recorded on 1.12.1988 P.W. 3 has disclosed her age to be 17 years.
The defence of the Appellant is the total denial of the alleged occurrence. He has examined three D. Ws. and had proved Ext. B which is a report filed in the Alipur Court. According to Ext. B which is a report of D.W. 1 the Police Officer of Calcutta P.W. 3 had admitted before him that she was married to the present Appellant one year before November, 1988 namely in November, 1987. Also the Appellant has contended that as per Ext. C lodged by the father of P.W. 3 no allegation has been made made against him. From Ext. A which is the medical examination report of Doctor lla Mishra P.W. 3 was found to be 20 years old on 30.11.1988. All these things will go to show that the present Appellant is innocent. P.W. 3 is his legally married wife, the marriage having taken place in February, 1988. After this marriage P.W. 3 became pregnant in May, 1988 and gave birth to a male child. There is no question of committing rape on a married wife she being above 15 years of age. On this ground it has been contended that he be acquitted of the charge u/s 376 of the Indian Penal Code.
Criminal Revision No. 823 of 1990 has been filed by P.W. 3 on 27.11.1990. In this petition she has described herself as the wife of Sanjay Kumar Bubna (opposite party No. 2) who happens to be the Appellant in Criminal Appeal No. 329/90. This also shows that she is the married wife of opposite party No. 2. This application in revision is directed against the judgment and order dated 31.8.1990 passed by the learned Sessions Judge, Sitamarhi in S.T. No. 84/89. In this revision application the Petitioner has challenged the acquittal of opposite party No. 2 of the offences under Sections 363 and 366A of the Indian Penal Code. As per the prosecution story P.W. 3 was aged about 16 years in the year 1988. Opposite party No. 2 was a close friend of her elder brother and both the families were on visiting terms. In due course they became intimate and agreed to marry. In the month of February, 1988 opposite party No. 2 took the present Petitioner to Lal Mandir and put vermillion on her head before the deity and promised to keep her as his wife for life. Further allegation of Petitioner is that since then opposite party No. 3 used to come to her house and used to commit rape on her against her will. In due course the Petitioner became pregnant some time in May, 1988 and gave birth of a male child. On being asked opposite party No. 2 also accepted his marriage with the Petitioner in presence of her parents. In the night of 20/21 st day of November, 1988 at about 2 A.M. opposite party No. 2 came to her and asked her to accompany her for going to Poona where he was working as a contractor. He, however, took her to (sic) where he left her alone at railway (sic) She was helped by a muslim gen(sic) who took her to the police station (sic) where she was produced before the (sic) of Addl. Collector (Judicial) Alipur w(sic) her to Pupri Police Station under (sic) escort. After completing the investing the police submitted the charge she (sic)der Sections 363, 366A and 376 (sic) Indian Penal Code. However, on (sic) learned Sessions Judge acquitte t(sic) posite party No. 2 of the charges (sic) Sections 363 and 366A of the Indian Penal Code and convicted him only under (sic) 376 of the Indian Penal Code. The (sic) of opposite party No. 2 in the course was that he did not commit rape (sic) Petitioner. Coming from a rich family site party No. 2 has been falsely im(sic) by the Petitioner and his family (sic) allegations only to black-mail him learned Sessions Judge has wrong quitted opposite party No. 2 of the (sic) under Sections 363 and 366A of the Indian Penal Code. The learned court below (sic) failed to consider the fact that the fath(sic) opposite party No. 2 could dare to (sic) false affidavit before this Hon''ble (sic) saying that they can accept the pe(sic) and the sucking baby as their family (sic)bers but at the final stage they were willing to do so. The judgment of the below is based only on conjectu(sic) surmises and the acquittal of opposite No. 2 of the charges u/s (sic) and 366A of the Indian Penal Code (sic) correct in the eyes of law. Hence (sic) tioner filed this revision application (sic) the court with a prayer that opposite No. 2 may also be convicted u/s 363 and 366A of the Indian Penal Code and may suitably be punished for (sic)
The parties have been (sic) length on various questions of (sic) facts raised in his Criminal Appe(sic) the Criminal Revision. I will firstly take up (sic) consideration the criminal appeal filed (sic) behalf of the sole Appellant Sanjay kumar alias Sanjay Kumar Bubna. Though (sic) was acquitted of the charges under Sections 363 and 366A of the Indian Penal Code by the learned trial court he was convicted of the charge u/s 376 (sic) the Indian Penal Code. On behalf of the Appellant it has been submitted that as per (sic) prosecution case alleging therein that P.W. 3 the informant who was above 15 (sic)ears of age was legally married to the present Appellant and as they were living (sic) husband and wife he could not have been convicted of the offence u/s 376 of the Indian Penal Code. Further My attention has also been drawn to the act that in the course of living together as husband and wife P.W. 3 conceived and subsequently gave birth to a male child. This will also show that they were living as husband and wife and there was no question of committing rape by the husband on his wife she being above 15 years of age.
In this connection I will firstly refer (sic) Section 375 of the Indian Penal Code which denines the offence of rape:
Rape-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:
xxx
Exception-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Relying on this definition of rape learned Counsel appearing on behalf of Appellant has submitted that since P.W.(sic) has above 15 years of age and since (sic) was legally married wife of the Appellant there could be no question of committing rape on her by the Appellant as is clear from the aforesaid law contained in Section 375 of the Indian Penal Code.
The charge u/s 376 of the Indian Penal Code has been framed against the Appellant in the following manner:
Thirdly that you on or about the same day (in the night of 20.11.1988 and 21.11.1988) and at same place for the last about eight months prior to 10.11.1988 at Village Jhajhihat Pupri, P.S. Pupri, District-Sitamarhi committed rape on Bhagwati Kumari @ Ranjani Kumari and conceived her and thereby committed an offence punishable u/s 376 of the Indian Penal Code.
From this it would appear that as per the charge framed against the Appellant he was committing rape on P.W. 3 since eight months prior to 20.11.1988. From this also it would appear that as per the prosecution case the Appellant was having sexual relationship with P.W. 3 much prior to the date of alleged occurrence. In this connection a reference may also be made to Ext. 2 which is the statement of P.W. 3 recorded u/s 164 of the Code on 1.12.1988. In her this statement she has stated that prior to her marriage with the Appellant he had never had any physical relationship with her. She has further stated that both of them were married in a night in a temple in course of which the Appellant put vermillion on her head and in this way the marriage was performed. From this also it would appear that P.W. 3 has not denied her marriage with the Appellant in the month of February, 1988, since when they were living as husband and wife. Under this circumstance could the Appellant be accused of committing rape on P.W. 3 if she was about 15 years of age in the month of February, 1988? In this background the age of P.W. 3 becomes important and it has to be property verified and concluded. In her statement made u/s 164 of the Code (Ext. 2) she has disclosed her age to be 17 years on 11.2.1988. From this it would appear that she was definitely above 15 years of age in February, 1988, though in the estimation of Magistrate recording the statement on 1.12.1988 she was aged 17-18 years. She was examined by a Medical Board on 7.2.1989 consisting of the Civil Surgeon, Sitamarhi and others. The report of the Medical Board is Ext. 3. From this report also it would appear that the age of P.W. 3 was nearly 18 years on 7.2.1989. This will also show that on February, 1988 she would be nearly 17 years of age. On behalf of the Appellant reliance has been placed on the report of Dr. lla Mishra dated 30.11.88 (Ext. A) according to which she found P.W. 3 to be about 20 years. On behalf of the prosecution it has been contended that Dr. Ila Mishra has not been examined in this case and, therefore, no reliance should be placed on Ext. A. Even if this argument is accepted as correct from Ext. 3 itself it would appear that in February, 1988 P.W. 3 was aged about 17 years. Further reference may be made to the transfer certificate granted by Rajkiya Kanya Uch Vidyalaya, Janakpur Road (Ext. 7) from which it would appear that the date of birth of P.W. 3 was 15.1.1975. As against it the defence has proved Ext. 1 which is report submitted to the First A.D.M. (Judicial) Alipur by the police on 25.11.1988. In this report her age has been described as 18 years. Obviously this must have been based on the statement of P.W. 3 wherein she described herself as the wife of Sanjay Kumar (Appellant). In this connection my attention has been drawn to the judgment of the learned court below in which the age of P.W. 3 was found to be in the vicinity of 16 years in February, 1988, This also shows that the learned Sessions Judge has also accepted this fact but still he proceeded to convict the Appellant u/s 376 of the Indian Penal Code even when it was made out before him that the Appellant was nobody else but the husband of P.W.3 the informant.
From the aforesaid discussions it becomes clear that on the alleged date of occurrence P.W. 3 was about 15 years of age and if her marriage in the month of February, 1988 is accepted the evidence on record clearly goes to show that on this date also she was above 15 years of age. On 10.5.1990 when P.W. 3 was examined before the court her age was assessed to be 18 years by the court. All these clearly go to show that in February, 1988 when she is said to be married to the Appellant as per the case of the prosecution she was above 15 years of age. This being the position the Appellant could not have been convicted u/s 376 of the Indian Penal Code for having sexual intercourse in February, 1988. It is important to note in this connection that in her own statement in Cr. Revision No. 823 of 1990 filed on 27.11.1990 P.W. 3 has described herself to the wife of the present Appellant. In this connection it would not be out of place to mention that P.W 3 had herself filed Criminal Revision No. 543 of 1999 before this Court on 13.9.1999 u/s 125 of the Code the record of which was called for by this Court while hearing the present appeal and revision. In this criminal revision also P.W. 3 has described herself to be the wife of the present Appellant and has claimed maintenance u/s 125 of the Code. D.W. 1 Md. Akram has stated before the court that when P.W.3 was produced before him by the Muslim gentle man of Calcutta on 24.11.1988 she disclosed that she was the wife of the present Appellant and that they were married about one year ago. This takes the date of marriage to 24.11.1987, even the Sessions Court in the judgment has as (sic)sed that in Feb. 1988 P.W. 3 was in the (sic)nity of 16 years of age. All these clearly (sic) to show that P.W. 3 was definitely above (sic) years of age in February, 1988 and, therefore, accepting the position that the present Appellant happens to be her husband no offence u/s 376 of the Indian Penal Code could be proved against (sic)m even if it be accepted that he had (sic)exual relationship with her. In her statement made u/s 164 of the Code Ext. 2) P.W. 3 has clearly stated that before her marriage to the Appellant he did not have any physical contact with her. Before concluding, I would like to refer to the counter affidavit of Dhananjay Kumar the full brother of opposite party No. 2 filed (sic) Criminal Revision No. 823 of 1990. In the first place it may be mentioned that this will not bind opposite party No. 2. Therefore, it is hardly of any consequence.
For the grounds stated above it is (sic)ear that the offence u/s 376 of (sic) Indian Penal Code is not made out (sic) gainst the Appellant. In this connection it (sic)ay be mentioned that the learned Court below has itself not accepted the prosecution story with respect to the kidnapping of P.W. 3 by the present Appellant in the night between 20/21 st November, 1988. As a matter of fact the present Appellant has (sic) acquitted of all these charges by the learned Court below by his judgment. As against it in criminal revision a prayer has been made to convict the Appellant (opposite party No. 2) also under Sections 363 and 366A of the Indian Penal Code. From (sic) prosecution story itself it will become (sic)ear that P.W. 3 was married to opposite Party No. 2 the Appellant in February, 1988 (sic), therefore, there could be no question (sic) any kidnapping or the offence under Sections 363 and 366A of the Indian Penal Code against him. This part of the prosecution has also rightly been disbelieved by the learned court below. Hence I do not find any merit in the revision application noted above.
For the reasons stated above Cr. Appeal No. 329/90 is allowed and the judgment of conviction of the learned court below is set aside. The Appellant is acquitted of the charge u/s 376 of the Indian Penal Code and is directed to be set at liberty.
So far as Criminal Revision No. 823/90 is concerned, it is dismissed for the reasons stated above.