Patna High Court
Md. Khalid vs State Of Bihar on 26 November, 2013
Author: Anjana Prakash
Bench: Anjana Prakash
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.193 of 2002
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Md. Khalid, son of Md. Mobin, resident of village Sheikh Alam Chak, P.S. & Dist.
Jehanabad
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ramakant Sharma, Sr. Advocate
Mr. Diwakar Singh, Advocate
For the Respondent/s : Mr. Satya Nr. Prasad, A.P.P.
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CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH
ORAL JUDGMENT
Date: 26-11-2013
The appellant has been convicted under Section 376 I.P.C. and
sentenced to R.I. for ten years by a judgment dated 10/11.4.2002
passed by the 2nd Additional Sessions Judge, Jehanabad in Sessions
Trial No.14 of 2001/69 of 1997.
The case of the Informant is that she used to take water from
the house of the appellant because she did not have water supply in
her house. One year ago the appellant allegedly attempted to outrage
her modesty, upon which she protested and made a complaint to her
parents. The appellant apologized when he was confronted by her
patents. However, he continued with this habit and told the victim that
he had fallen in love with her and wanted to perform Nikah with her.
He expressed his desire to have physical relationship with her but she
did not agree and instead asked him to perform Nikah. The appellant
Patna High Court CR. APP (SJ) No.193 of 2002 dt.26-11-2013 2
then asked the victim to send her parents for talking with his parents
and then on his assurance she consented to have physical relationship
with him. When she narrated this fact to the Informant they informed
the family members of the appellant, who supported the act of the
appellant. Thereafter the appellant started visiting the house of the
Informant and appellant and the victim started living as husband and
wife. When she became pregnant, the Informant asked him to perform
the Nikah but he did not do so and instead picked up a quarrel with
them.
During trial the prosecution examined eight witnesses in all.
Out of whom, P.W.5 Dr. Manoj Sahay has proved the medical reports,
whereas P.W.7 is the Investigating Officer and P.W.8 Kaushal Kumar
is a formal witness. P.W.1 Md. Gaffar is on the point of panchayati
held between the parties, whereas P.W.2 Md. Serajuddin is also on the
same point. P.W.3 Sahani Khatoon is the prosecutrix, whereas P.W.4
is her mother and P.W.6 Md. Nasim is his father.
From the evidence adduced, it is apparent that the factum of
consent is admitted. Whether the proscutrix had achieved the age of
consent is the only determining factor. I find from the evidence of the
doctor P.W.5 that he had opined that the proscutrix on examination
was found to be 16 to 16 ½ years on 22.12.1996 i.e. one year from the
date of first consent. Considering that a margin of two years is
Patna High Court CR. APP (SJ) No.193 of 2002 dt.26-11-2013 3
permitted and to be held in favour of the appellant, I am inclined to
hold that a clear case of consent between the parties is made out, and
hence the conviction under Section 376 I.P.C. is not sustainable.
In the result, the appeal is allowed and the order of
conviction and sentence passed against the appellants on
10/11.4.2002by the 2nd Additional Sessions Judge, Jehanabad in Sessions Trial No.14 of 2001/69 of 1997 is set aside. The appellant is discharged from the liability of his bail bonds.
(Anjana Prakash, J) NAFR/Narendra/-