Md. Sadique Alam @ Sadique Alam vs State of Bihar

Anjana Prakash, J.—The appellant has been convicted under Sections 376 and 417 I.P.C. and sentenced to R.I. for seven years and a fine of Rs. 5000/- and in default of which further R.I. for six months in Sessions Trial No. 395 of 1999 dated 9.4.2002 and 11.4.2002 by the Additional Sessions Judge, Kishanganj. The case of the Informant is that she had developed love with the present appellant, on account of which there had been physical relation between them. The appellant always used to promise to her that he would marry her but did not do so. On the date of occurrence he came to her house and committed rape with her. On account of hulla, a number of persons gathered there, who called the police, upon which a First Information Report was instituted.

During trial the prosecution examined six witnesses. Out of whom, P.W.3 is the victim/Informant Afsari Begum, who stated that she had been forcibly raped by the appellant about 4-5 months back but the Investigating Officer contradicted the story. From the evidence of P.W.3, who is the victim, I find that even though she has stated that she did not have any love affair with the appellant, this fact was contradicted by P.W.1, who supported the factum of occurrence. P.W.1 Ismail has stated that he went on hulla to the house of the prosecutrix he found the door locked from inside and when he got it opened the appellant was seen hiding under the chauki and promised to marry the prosecutrix. He also stated that there was love affair between the appellant and the prosecutrix since last 4-5 months of which he did not approve. P.W.2 Asahbuddin also supported the version of P.W.1. P.W.6 Satya Narayan Singh is the Investigating Officer, who also stated that the prosecutrix had told him that she had developed love for the appellant and for the last 4-5 months they were living as husband and wife. P.W.4 Md. Kasim has been declared hostile by the prosecution. P.W.5 is Dr. Taptidhar, who examined the victim P.W.3.

The manner in which the witnesses discovered the appellant in the house of the prosecutrix suggests that it was a case of consent especially in view of the fact that there is some kind of admission by the witnesses that there was love affair between the parties.

From the doctor''s evidence, I find that the prosecutrix was opined to be 18 years of age i.e. well past the age of consent and, therefore, in the facts and circumstances of the case no offence u/s 376 I.P.C. would be made out. In view of such discussion, the appeal is allowed and the order of conviction and sentence passed against the appellant on 9.4.2002 and 11.4.2002 by the Additional Sessions Judge, Kishanganj in Sessions Trial No. 395 of 1999 is set aside. The appellant is discharged from the liability of his bail bonds.