Jharkhand High Court

Farid Alam vs The State Of Jharkhand on 10 October, 2023

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Cr. Appeal (S.J.) No.173 of 2011

 (Against the Judgment of Conviction dated 29th January, 2011 and Order
of sentence dated 3rd February, 2011 passed by the 1st Additional Sessions
Judge, Hazaribag in Sessions Trial No.443 of 2008)
Farid Alam                                 ....          Appellant
                              Versus
The State of Jharkhand                      .....        Respondent
                              PRESENT
            HON'BLE MR. JUSTICE SUBHASH CHAND
                              .....

For the Appellant : Mr. Pratyush Kumar, Advocate For the State : Mr. Bishambhar Shastri, A.P.P.

.....

C.A.V. on 12.09.2023 Pronounced on 10.10.2023

1. Heard learned counsel for the appellant and learned A.P.P. for

the State.

2. The instant criminal appeal is preferred on behalf of the

appellant against impugned Judgment of Conviction dated 29th

January, 2011 and Order of Sentence dated 3rd February, 2011

passed by the learned 1st Additional Sessions Judge, Hazaribag

in Sessions Trial No.443 of 2008, whereby the appellant has

been convicted for the offence under Section 366 and 376 of

the Indian Penal Code. The appellant has been sentenced to

undergo rigorous imprisonment for 8 years along with fine of

Rs.10,000/- for the offence under Section 376 of the I.P.C. and

in default of payment of fine he was further directed to

undergo rigorous imprisonment for 6 months. Further the

appellant was directed to undergo rigorous imprisonment for 6

years along with fine of Rs.5,000/- and in default of payment of

fine he was directed to undergo rigorous imprisonment for four

Cr. Appeal (S.J.) No.173 of 2011

months for the offence under Section 366 of I.P.C. Both the

sentences were directed to run concurrently.

3. The brief facts of the prosecution case leading to this criminal

appeal are that the informant - Kailash Thakur gave the

information with the police station concerned with these

allegations that on 10th April, 2008, he left his house for

Argadda at 6 o' clock of morning to distribute the marriage

cards. At around 11:30 o' clock he received the phone call from

his nephew Aditya Thakur that his 17 years old daughter

Punam Kumari had gone to respond the call of nature at 7:30 o'

clock of morning and did not come back. Having received this

information, the informant came back to his house at Pelawal

and made search of his daughter. The informant's wife told him

that his daughter had gone alone to respond the call of nature.

During search, Manoj Thakur and Ramdhani Thakur told them

that his daughter Punam Kumari was seen by them when she

was talking with the accused Farid Alam in the evening of 8th

April, 2008. Later on it also came to know that the victim

(daughter of the informant) had been enticed away by Farid

Alam with intent to marry her. On this written information, the

Case Crime No.86 of 2008 was registered under Section 363,

366-A of the I.P.C. against Farid Alam.

4. The Investigating Officer after having concluded the

investigation filed charge-sheet against accused/appellant -

Farid Alam under Sections 363, 366-A read with 34 and 376 of

Cr. Appeal (S.J.) No.173 of 2011

the I.P.C. against Farid Alam and Khurshid Alam before the

court concerned and the court concerned after having taken the

cognizance thereon had committed the case for trial to the

court of Sessions Judge.

5. The trial court framed the charge against the accused Farid

Alam and Khurshid Alam for the offence under Sections

363/366-A/376/34 of the Indian Penal Code. The charge was

read over to both the accused, who denied the charge and

claimed for trial.

6. On behalf of the prosecution to prove the charge against the

accused persons in oral evidence examined P.W.1-Rajan

Kumar, P.W.2- Manoj Kumar Thakur, P.W.3-Savita Devi, P.W.4-

Punam Kumari, P.W.5-Ramdhani Thakur, P.W.6-Ram Suresh

Prasad, P.W.-7 Kailash Thakur and P.W.8- Dr. R.S. Vandana.

7. On behalf of the prosecution in documentary evidence adduced

signature of victim on her statement under Section 164 Cr.P.C.

Ext.1, formal F.I.R. Ext.2, written report Ext.3, signature of the

doctor on medical report Ext.4.

8. The statement of accused persons under Section 313 of the

Cr.P.C. was recorded, wherein the accused persons denied the

incriminating circumstances against them and stated

themselves to be innocent.

9. On behalf of the accused in defence evidence examined D.W.-1

Md. Akhtar and in documentary evidence adduced the letters,

Ext. A and A/1.

Cr. Appeal (S.J.) No.173 of 2011

10. The learned trial court after hearing the learned counsel for the

parties passed the impugned judgment of conviction against

appellant - Farid Alam for the offence under Sections 366 and

376 of the Indian Penal Code acquitting the accused Khurshid

Alam from the charges levelled against him and sentenced

Farid Alam vide order dated 3rd February, 2011 under Sections

376 and 366 of the I.P.C.

11. The aforesaid convict/appellant being aggrieved with the

judgment of conviction and order of sentence preferred the

present criminal appeal on the grounds that the impugned

judgment of conviction and sentence is bad in the eyes of law.

The court below has not appreciated the evidence on record in

proper perspective. The recovery of the victim at Bangalore has

not been proved as there was no recovery memo. The

statement of the prosecutrix is not corroborated with the

medical evidence. The statement of the victim has also not

been proved by the maker of the document. Indeed, from the

evidence on record it is conclusively proved that there was love

affair between the victim and the appellant. In view of the

above learned counsel for the appellant prayed to allow this

appeal and set aside the impugned judgment of conviction and

sentence and to acquit the appellant.

12. Heard the learned counsel for the appellant and learned A.P.P.

for the State of Jharkhand and perused the materials available

on record.

Cr. Appeal (S.J.) No.173 of 2011

13. In order to decide the legality and propriety of the impugned

judgment of conviction and sentence passed against the

appellant, the evidence adduced on behalf of the prosecution is

reproduced herein.

13.1 P.W.-1 Rajan Kumar, in his examination-in-chief says that

the occurrence is of 10th April, 2008. His sister had gone to

respond the call of nature at 5:30 in the morning when she did

not come back till 7:30 he made search of her and when no

whereabouts of his sister was known he informed his father in

regard to the same. Manoj Thakur, Shami Thakur and Ardhani

Thakur all three had told that one day ago from this occurrence

they had seen the victim talking with Farid. One year ago he

had also seen Farid teasing her. He opposed the same and

maar peet was also done. His father came to the village and he

lodged the F.I.R.

In cross-examination, this witness stated that his sister

was studying in 1st year on 10th April, 2008. His sister had one

female friend, namely, Gudiya Kumari. In regard to the

occurrence of teasing and doing maar peet he had not lodged

any F.I.R. at that time. The matter was settled on the basis of

compromise.

13.2 P.W.-2 Manoj Kumar Thakur in his examination-in-chief

stated that once Farid Alam had made attempt to meet the

victim. Later on it came to know on missing of the victim that it

was Farid Alam, who had abducted her.

Cr. Appeal (S.J.) No.173 of 2011

In cross-examination, this witness says that the victim

was his niece and she was studying in Ananda College. The

father of the victim had gone to distribute the marriage card of

his daughter. Farid had an evil eye upon victim and he came to

know from the people. This witness is not aware whether victim

was having love affair with Farid Alam.

13.3 P.W.-3 Savita Devi in his examination-in-chief says that

occurrence is of 10th May, 2008 at 5 o' clock in the morning.

The victim had gone to respond the call of nature and did not

come back till 7:30. She made search of her. Manoj Kumar

Thakur told her that two days ago, he had seen victim talking

with Farid Alam. During search it also came to know that the

victim was abducted by Farid and his father - Khurshid with

intent to get married with her and had taken her to Bangalore.

She also stated that her daughter was minor 16 years old.

In cross-examination, this witness says that her daughter

had been studying in Ananda College. Before the occurrence,

the accused had also talked with her daughter two or three

times. In regard to that it was told by her brother-in-law

(devar). It is wrong to say that her daughter was 20-22 years

old and she was having love affairs with Farid.

13.4 P.W.-4, the victim, in her examination-in-chief stated that the

occurrence was of 10th April, 2008. At 5:30 o' clock of morning

she had gone to respond the call of nature and she saw that

five to six boys came there. One of them was Farid Alam and

Cr. Appeal (S.J.) No.173 of 2011

he caught hold of her and throttled her and she became

unconscious and took her to Ranchi Railway Station where she

regained senses and saw that father of Farid Alam was also

sitting beside him and they took her by train to Kolkata. The

father of the accused had given money to his son and they

went to Bangalore. They lived there for 20 days. Farid also

established physical relation with her forcibly. On being

opposed by her he used to beat her. Police nabbed them from

Bangalore and taken signature on the blank paper. She also

gave statement before the Magistrate and she also identified

her signature thereon and marked Ext.1.

In cross-examination, this witness says that she had

passed the matric exam in the year 2007. Her friend

Gudiya used to go to Annada College with her. After the

occurrence her marriage was to be solemnized and the

marriage cards of her marriage were being distributed. Her

marriage was solemnized but not with the person with whom it

was earlier to be solemnized. She regained senses on the date

of occurrence at Ranchi Railway Station. There was mob at the

railway station. She raised alarm after regaining senses, since

she was sitting at aside of the Railway Station therefore her

alarm was not heard by the public. He was pressing her neck at

the interval of half or one minute. On reaching Kolkata also she

raised alarm but neither the public nor the police attracted

there. Thereafter they reached to Bangalore. On reaching

Cr. Appeal (S.J.) No.173 of 2011

Bangalore, they lived in a room. She and Farid both lived in

that very room. She never addressed Farid as Samir. The

letters were shown to this witness and she denied her signature

and writing on them. She denied the suggestion that she

wanted to marry with Farid and was against the marriage which

was to be solemnized by her father of which cards were being

distributed.

13.5 P.W.-5 Ramdhani Thakur in his examination-in-chief stated

that on 10th April, 2008, the victim had left the house to

respond the call of nature at 5 o' clock in the morning but did

not come back. Search was made of her and during search it

came to know that Farid Alam and her father both had

abducted her.

In cross-examination, this witness says that Kailash

Thakur, the father of victim is his gotiya. He came to know

from his nephew Manoj that the victim had been abducted.

13.6 P.W.-6 Ram Suresh Prasad (the I.O. of the case) in his

examination-in-chief says that on 10th April, 2008 he was

posted at outpost Pelawal. On the written information of Kailash

Thakur and by the order of Officer-in-Charge of police station,

the case was registered. The F.I.R. was also prepared which

was marked Ext.2. The investigation was handed over to him.

Firstly he recorded the statement of informant and on next day

he recorded the statement of son of informant. He inspected

the place of occurrence. He recorded the statement of Manoj

Cr. Appeal (S.J.) No.173 of 2011

Thakur. On 12th April, 2008, he also recorded the statement of

Anil Kumar and came to know that the accused Farid had gone

to Kolkata thereafter to Bangalore along with victim. He

reached to Bangalore and recovered victim along with accused

Farid. He also recorded the statement of victim under Section

161 Cr.P.C. and got her statement recorded by the Magistrate

on 3rd May, 2008. On 4th May, 2008, the medical examination

was conducted. On 5th May, 2008, the victim was handed over

to her parents by the order of the Magistrate. He filed charge-

sheet against the accused persons.

In cross-examination, this witness says that he did not

prepare the site plan of the place of occurrence. He did not

receive order from any court for search in Kolkata. Having

received order from the Hazaribag court he reached to

Bangalore and recovered victim on 1st May, 2008 and departed

from there on 2nd May, 2008 and reached at Ranchi then

Hazaribag on 3rd May, 2008. He did not get victim medically

examined at Bangalore nor the accused was got medically

examined. Whatever the cloths they have worn in the same

they have come to Hazaribag. He did not found any semen on

the cloths of the victim. Whether the victim has taken bath or

changed her cloth, he is not aware.

13.7 P.W.-7 Kailash Thakur in his examination-in-chief says that

on 10th April, 2008 at 6 o' clock in the morning he had left her

house to Argadda to distribute the marriage cards of her

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Cr. Appeal (S.J.) No.173 of 2011

daughter. Her daughter had gone to respond the call of nature

in the morning but did not return. He came from there and

search was made and it came to know that she was exchanging

talk with Farid Alam. He gave the written information with

the police station concerned and he identified the signature

thereon which was marked Ext.3. His daughter told him that

accused had forcibly taken her with intent to marry her. He had

raped her 8 to 10 times. At the time of occurrence, the age of

his daughter was 17 years.

In cross-examination, this witness says that his daughter

was studying in Annada college. He did not see any sign of

maar peet on the body of his daughter. His daughter

was wearing very those cloths in which she left the

house.

13.8 P.W.-8 Dr. R.S. Vandana in his examination-in-chief stated

that on 4th May, 2008 at 11:00 a.m. the medical

examination of the victim was conducted. The victim

was about 18 years old. There was no sign of external

injury or any internal injury. No spermatozoa was

found, so no definite opinion in regard to commission of

rape was given.

In cross-examination, this witness says that the

information in regard to age of 18 years, there may be variation

of six months more or less. X-ray and vaginal report speak

negative to rape.

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Cr. Appeal (S.J.) No.173 of 2011

14. As per prosecution case, the daughter of the informant had left

the house at 5:30 of morning on 10th April, 2008 to respond

the call of nature and when she did not come back, the search

was made of her. The father of the victim, who is informant in

this case, had gone to distribute the marriage card of the

victim/daughter come back after having received the

information in regard to missing of his daughter at 11 o' clock

of 10th April, 2008. During search, it came to know from Manoj

Thakur that one day ago from the occurrence, the victim was

seen exchanging talk with Farid. Thereafter it also came to

know that the accused - Farid used to tease the victim and

with utter belief that it was accused - Farid, who had abducted

the victim in order to have illicit relation with her or to marry

with her.

15. Herein it would be pertinent to reproduce the Section 366 I.P.C.

which reads as under :

"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]."

From bare perusal of the Section 366 of the I.P.C., it is

found that there should be kidnapping or abduction of a

woman by compelling the woman forcibly to accompany

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Cr. Appeal (S.J.) No.173 of 2011

him or by playing deceit upon the woman with intent to

seduce her or to marry against her will. Therefore there

should be evidence of deception or forceful compulsion upon

the victim. There should be intention to seduce her to have

illicit relation with her or to marry with her.

16. In the case in hand, as per prosecution case, the victim had left

the house at 5:30 of morning on 10th April, 2008 to respond

the call of nature. There is no evidence adduced on behalf of

the prosecution that any person has seen the victim being

abducted or kidnapped by the appellant/convict by using force

or playing deceit upon her. The sole witness to this effect is

the victim herself, who was examined as P.W.-4. This

witness in her examination-in-chief says that when she had

gone to respond the call of nature at 5:30 of morning on 10th

April, 2008. Farid Alam along with other boys came there. Farid

Alam caught hold of her and pressed her neck. She became

unconscious and he took her to Ranchi Railway Station, where

she regained senses and from there he took her to Kolkata by

train and from Kolkata Farid took her to Bangalore. About 20

days she lived with the accused. He also established forcible

physical relation with her and police had nabbed them from

Bangalore. Thereafter her statement was recorded under

Section 164 Cr.P.C. and the contents of which she verified

which was marked Ext.1. This witness in cross-examination also

says that after regaining senses at Ranchi Railway

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Cr. Appeal (S.J.) No.173 of 2011

Station when she raised alarm, the accused was

pressing her neck at the interval of half or one minute.

On reaching Kolkata Railway Station, she also raised

alarm; but any police personnel or public did not attract

there. From Kolkata she was taken to Bangalore. On

reaching Bangalore, they lived in a room; but there also

she did not raise alarm since the accused had criminally

intimidated her and both lived in the very room.

16.1 From the testimony of this witness, the conduct of the victim is

found suspicious because she accompanied the

appellant/convict from Ranchi Railway Station to Kolkata and

thereafter to Bangalore where they lived in a room about 20

days. Admittedly, the several persons had seen them

and police personnel also seen by her; but it is

unbelievable that no one heard her alarm. The conduct

of the victim thoroughly shows that the victim was

consenting party. So far as the allegations made by the

victim that when she wanted to raise alarm, the

appellant used to press her neck or beat her. Admittedly

in the medical examination report there was no injury

on the body part of the victim, as per the testimony of

doctor (the P.W.-8). Even the father of the victim P.W.-

7 Kailash Thakur also admitted that when his daughter

met to him on being recovered from Bangalore he found

no external injury on her body.

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Cr. Appeal (S.J.) No.173 of 2011

16.2 As such prosecution has proved neither deception nor the force

used by the appellant/convict in abducting the victim. The

testimony of the victim does not repose trust and is found

unbelievable taking into consideration her conduct residing with

appellant for more than 20 days from Ranchi to Bangalore via

Kolkata.

16.3 The P.W.-1 Rajan Kumar, P.W.-2 Manoj Thakur, P.W.-3

Savita Devi, P.W.-5 Ramdhani Thakur and P.W.-7

Kailash Thakur, all these witnesses have stated that the

victim had willingly left her house to respond the call of

nature at 5:30 and she did not come back and during

search it came to know that it was appellant/victim, who had

abducted her; but there is no evidence in regard to kidnapping

or abducting the victim by the appellant. No one had seen her

kidnapping or abducting, only on the basis of the suspicion as

there was affairs between the victim and the appellant this

F.I.R. was lodged against the appellant/convict.

16.4 Herein it would be pertinent to consider that on the date of

occurrence what was the age of the victim? As per F.I.R.

allegations, the age of the victim is shown 17 years; but

no documentary evidence was adduced on behalf of the

prosecution to prove the age of the victim. In medical

evidence, the P.W.-8 Dr. R.S. Vandana has determined

the age of the victim about 18 years old. As such on the

date of occurrence, the victim was major

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Cr. Appeal (S.J.) No.173 of 2011

17.1 The Hon'ble Apex Court in the case of Jinish Lal Sah v. State

of Bihar reported in (2003) 1 SCC 605 at paragraph and 6

has held as under :

"6. In this regard, if we examine the evidence of PW 1, it is clear that on the date of incident when the appellant came to her house and told her that he will not be taking tuition class on that day, she decided to go to her grandfather's house to watch TV. She says on the way she was met by the appellant who took her on his motorcycle promising her of taking her to a movie at Sitamarhi. She found on the way that he was not going to Sitamarhi but was going to Muzaffarpur Railway Station. According to her, she protested but she was threatened. Then from Muzaffarpur to Jasidih they went by train and then onwards they went by tempo to Devghar for stay in Devghar for some days, then proceeded to Bajitpur from where she was recovered on 10-5-1989. She alleges that the appellant forced her to sign some papers to marry him. In our opinion, it is extremely difficult to accept her evidence when she states that she was taken by the appellant without her consent. If we see the sequence of events starting from 30-4-1989 to 10-5-1989 it is clear that she has accompanied the appellant willingly. The evidence of PW 1 indicates that there was a prior planning by her with the appellant together to elope, and it is because of that, the appellant came to PW's house on 30-4-1989 and told her that he will not be taking tuition on that day and immediately thereafter PW 1 left her house on the pretext of going to her grandfather's house to see television. It is not her case that when she was accosted by the appellant on his motorcycle, she went with him under a threat. On the contrary, the evidence shows that she willingly went with him on his motorcycle to see a movie at Sitamarhi. She says she was threatened only when she protested as against she being taken to Muzaffarpur. On the contrary, we notice she was with him from 30th April to 10th May, during which period she had travelled by train, tempo and stayed with the appellant without there being any evidence of her having protested or having made any effort to seek help from others or even trying to run away. Apart from that from the record, it is seen that PW 6 in the FIR had stated that "I got information from my wife in the house that Geeta went away by taking clothes and a gold chain and she took Rs 500 in cash in total amounting to Rs 8500". This evidence though subsequently resiled by PW 6 indicates that PW 1 had planned her departure from the house in advance and had willingly gone away with the appellant which also indicates that there was no threat or inducement either in regard to her leaving the house or in regard to accompanying the appellant. In such situation in the absence of any other material to show to the contrary, it will be difficult to accept the prosecution case that either there was a forcible marriage or rape as contended by the prosecution to find the appellant guilty under Section 366 or 376 IPC. Since the courts below proceeded on the basis that PW 1 was a girl below the age of 18 on the date when she left the house they have not properly appreciated the evidence in regard to her consent which is a mandatory requirement before finding a person guilty under Section 366 or 376 IPC."

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17.2 The Hon'ble Apex Court in the case of Mohd. Ali v. State of

U.P. reported in (2015) 7 SCC 272 at paragraph 29 has held

as under :

"29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment [ Criminal Appeal No. 602 of 2006, decided on 25-3-2009 (All)] , it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished a number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon."

18. In view of the above analysis of evidence and settled legal

propositions of law as laid down by the Hon'ble Apex Court,

the offence under Section 366 of the I.P.C. is not made

out against the appellant/convict.

19. So far as the offence under Section 376 of the I.P.C. is

concerned, the P.W.-4 victim in her statement has stated that

on 10th April, 2008 she was taken by the appellant/convict to

Ranchi Railway Station and from there she was taken to

Kolkata. She raised alarm at Ranchi Railway Station and also

upon reaching at Kolkata Railway Station but neither police nor

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any person from public heard her alarm in regard to force or

compulsion being exerted by the appellant upon her.

19.1 This testimony of victim regarding raising of alarm and

no one attracted, appears to be doubtful and unworthy

of belief because admittedly there were several persons

as well as police personnel present at the platform of

Ranchi Railway Station, in the coach of train and also at

Kolkata Railway Station. It casts a cloud of suspicion in

the reliability of her version and shows the conduct of

prosecutrix of being a consenting party. From Kolkata

she accompanied the appellant/convict and reached to

Bangalore where they resided in a rented room for

about 20 days. The victim in her testimony nowhere

stated that she was confined by the appellant/convict in

a room, rather she resided with her and physical

relations also established there.

19.2 So far as the corroboration of the statement of victim P.W.-4 is

concerned, the P.W.-8 Dr. R.S. Vandana stated that during

medical examination she did not find any external or

internal injury on the body part of the victim. No

spermatozoa was found and no foreign particle was

seen. The doctor has stated that no definite opinion

could be given in regard to commission of rape upon the

victim. Therefore, the medical evidence also does not

corroborate the testimony of the prosecutrix.

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19.3 Even if for the sake of argument as per testimony of

prosecutrix, the physical relation established between the victim

and the appellant, but the same was consensual since the

victim was major (18 years old) and her thorough conduct

during the period of 20 days residing with the appellant shows

that she was consenting party.

19.4 Admittedly the victim had passed the metric exam in the year

2007 and the best evidence to prover her age is her

metric mark-sheet which was withdrawn by the

prosecution. As such the adverse inference could be taken

against the prosecution under Illustration (G) of Section

114 of the Evidence Act that the victim was major.

19.5 The Hon'ble Apex Court in the case of Kuldeep K. Mahato v.

State of Bihar reported in (1998) 6 SCC 420 at paragraph

11 has held as under :

"11. Then coming to the conviction of the appellant under Section 376 IPC, although both the courts below have held after accepting the evidence of the prosecutrix as being truthful that the appellant had forcibly committed the rape, we are of the opinion that the said finding is unsustainable. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of the neighbours from the said village. The medical evidence of Dr Maya Shankar Thakur, PW 5 also indicates that there were no injuries on the person of the prosecutrix including her private parts. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376 IPC cannot be sustained. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result that her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant."

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20. Therefore, no offence of rape is made out under Section

375 of the I.P.C. which is punishable under Section 376

of the I.P.C. against the appellant.

[

21. After critical appraisal of the evidence available on record and

also keeping in view the settled proposition of law as laid down

by the Hon'ble Apex Court, I am of the considered opinion that

the learned Court below has committed illegality in recording

the findings of conviction of accused/appellant for the offence

under Sections 366 and 376 of the Indian Penal Code.

Accordingly, this criminal appeal is, hereby, allowed and

impugned judgment of conviction and sentence is set

aside. The appellant is acquitted from the charges levelled

against him and he is on bail and his sureties are discharged.