Md. Javed @ Md. Javed Mian vs The State Of Bihar
2021 Latest Caselaw 1399 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (SJ) No.1448 of 2018
   Arising Out of PS. Case No.-36 Year-2010 Thana- SANOKHAR District- Bhagalpur
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Md. Javed @ Md. Javed Mian Son of Md. Mahfuz, Resident of Village- Chotinaki, P.S.- Sanokhar, District- Bhagalpur.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Pratik Mishra, Advocate. For the Respondent/s : Mr. Binod Bihari Singh, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 12-03-2021 This is an appeal against the judgment of

conviction dated 26.03.2018 and order of sentence dated

05.04.2018 passed in Sessions Trial No. 461 of 2011 arising out

of Sanokhar P.S. Case No. 36 of 2010 whereby the learned Trial

Judge (Additional Sessions Judge-VII, Bhagalpur) found the

sole appellant Md. Javed @ Md. Javed Mian guilty for offence

under Section 376 IPC and sentenced to undergo rigorous

imprisonment for seven years. A fine of Rs.25000/- was

imposed to be paid to the victim and in default of payment of

fine, further one year and nine months simple imprisonment was

awarded.

2. The prosecution case as disclosed in the written

report (F.I.R.) lodged by the victim girl is that the appellant by

inducing the informant, aged about 14-15 years, to marry was in Patna High Court CR. APP (SJ) No.1448 of 2018 dt. 12-03-2021

physical relation with her. The physical relation was continuing

in the house of the appellant as well as in the house of the

informant since last six months. Since the informant was

carrying pregnancy from the appellant since last four months,

she asked the appellant to marry with her, but the appellant

refused and the family members of the appellant asked the

informant to get aborted. Being frustrated, on 30.04.2010 she

reported the matter to the police station, but the police did not

take any action. Then a written report was submitted to the

SP/Bhagalpur on 03.05.2010 and on direction of the S.P.,

Sanokhar P.S. Case No. 36 of 2010 was registered under Section

376 and 506/34 IPC.

3. During trial, the prosecution examined altogether

ten witnesses. The defence also produced one witness Md.

Hafiz.

4. Mr. Pratik Mishra, learned counsel for the

appellant contends that a closure and careful scrutiny of the

prosecution case and evidences would make it evident that the

victim was in consensual physical relation with the appellant.

The prosecution has failed to prove that on the alleged date of

occurrence, the victim was below 16 years of age, as such her

consent was immaterial. Learned counsel contends that it is not Patna High Court CR. APP (SJ) No.1448 of 2018 dt. 12-03-2021

the prosecution case that consent of the victim was obtained by

fraud or by putting her or anyone in whom she was interested in

fear of death or at the time of giving consent the victim was of

unsound mind or under influence of intoxication, consequently

unable to understand the nature and consequence of that for

which she gave the consent. Learned counsel contends that the

aforesaid serious infirmity has been ignored by the learned trial

Judge while recording the judgment of conviction, hence the

same is not sustainable in law.

5. Learned counsel for the State-respondent Mr.

Binod Bihari Singh would submit that the victim has deposed

that she was below 16 years of age on the date of alleged

occurrence and she was not cross-examined at all on this point,

therefore the defence tacitly accepted the prosecution case on

the age of the victim. Hence, consent of the victim was

immaterial. Moreover, the consent of the victim was obtained by

alluring her for marriage, hence the consent was obtained by

fraud.

6. PW-7 the victim girl deposed that initially the

appellant established physical relationship with her by force,

however the appellant pretended that he would marry with her

and thereafter both continued in relationship. The victim was Patna High Court CR. APP (SJ) No.1448 of 2018 dt. 12-03-2021

carrying four months pregnancy from the appellant. Then she

asked the appellant to marry. The appellant refused, hence the

case was lodged. This witness admitted that the appellant was in

physical relation with her consent. Both were enjoying the

relationship. They used to eat together. The family members

were aware of their relationship. The witness further admitted

that she never made any protest of the act of the appellant in

lifting her to his lap while watching television. The victim was

in talking term with the appellant taking precaution of non-

divulgence of their relationship. The family members never

made any complaint against the act of the appellant.

PW-5 Julekha Khatoon is a relative of the victim

girl. She has deposed that the victim fell in love with the

appellant, however when the victim was pregnant from the

appellant, appellant refused to marry with her.

PW-1 Bibi Jarina, the mother of the victim has

admitted the relationship between the two and the case was

lodged only when the appellant refused to marry with the victim

who was pregnant from the appellant.

PW-2 Abdul Hamid, PW-3 Md. Abbas and PW-8

Md. Jichho have been declared hostile by the prosecution as

they did not support the prosecution case. Though they were Patna High Court CR. APP (SJ) No.1448 of 2018 dt. 12-03-2021

confronted with their statement before the police, however

attention of the investigating officer PW-10 Md. Wahid Nut was

not drawn to the statement made before him by these hostile

witnesses.

PW-4 Md. Israil is uncle of the victim and he has

supported the allegation as hearsay evidence. PW-6 Md. Wajir is

father of the victim girl. He has supported the allegation as

hearsay witness. Since the victim has not stated that she had

disclosed about the occurrence to the hearsay witnesses

aforesaid nor the hearsay witnesses deposed that from whom

they got about the occurrence, hence their deposition has got no

evidentiary value.

PW-9 Dr. Shobha Raven had examined the victim.

The Dr. did not found any sign of sexual assault rather noticed

that the victim was pregnant. She assessed the age of the victim

between 17-18 years.

DW-1 Md. Hafij has deposed that the marriage of

the victim was performed on 23.02.2015 in his presence with

Md. Atikur.

7. Thus, the testimony of the victim clearly depicts

that she was voluntarily in physical relation with the appellant.

The marriage between the two could not be solemnized for Patna High Court CR. APP (SJ) No.1448 of 2018 dt. 12-03-2021

whatever reason may be. At the time of hearing on sentence

before the learned trial Judge, she filed a petition that lesser

punishment should be awarded to the appellant as both have

married with a different life partner. Since the relationship

between the victim and the appellant was known to others also,

they never made any protest prior to the institution of the case.

The prosecution evidence itself depicts that the victim was in

consensual physical relationship with the appellant.

8. The term "fraudulently" has been defined in

Section 25 of the Indian Penal Code as " a person is said to do a

thing fraudulently if he does that thing with intent to defraud but

not otherwise". There is no evidence that the appellant was in

physical relation with the victim with intent to defraud her. The

subsequent conduct of non solemnization of marriage, the

reason whereof is not on the record, cannot be termed as a case

of fraudulent act because the dishonest and fraudulent intention

must be at the inception of entering into the relationship.

Prosecution has failed to prove this requirement of law.

9. The prosecution has sought to prove the age of

the victim on an approximation. In the case of Sunil v. The

State of Haryana reported in AIR 2010 SC 392, the Hon'ble

Supreme Court held that conviction cannot be based on an Patna High Court CR. APP (SJ) No.1448 of 2018 dt. 12-03-2021

approximate age of the victim. In the case of Jarnail Singh v.

State of Haryana reported in 2013 CRI. L. J. 3976, the

Hon'ble Supreme Court said that the age of the victim of rape

should be determined in the manner provided under Rule 12 of

the Juvenile Justice (Care and Protection of Children) Rules,

2007, there is no difference as regards minority between the

child in conflict with law and the child who is victim of the

crime. Under Rule 12, preference is to be given to the school

documents in determination of the age of the victim. The

prosecution has not produced any school document to prove the

age of the victim. PW-1 Bibi Jarina, the mother of the victim

deposed that she cannot say about the age of the victim. PW-2 to

PW-6 including the father of the victim have not deposed at all

on the age of the victim. The doctor who had conducted the

ossification / radiological examination of the victim was not

produced by the prosecution. Hence direct evidence for

determination of age of the victim is not there on the record.

10. It is trite proposition that in criminal trial the

prosecution is bound to prove the charges against the accused

beyond reasonable doubts and not by preponderance of

probability. Even where statutes provide for reverse burden of

proof on the accused, the prosecution must discharge its initial Patna High Court CR. APP (SJ) No.1448 of 2018 dt. 12-03-2021

burden by producing trustworthy and acceptable evidence.

Therefore, it cannot be argued by the State-respondent that non

cross-examination of the prosecution witnesses on the point of

age of the victim exonerates the prosecution from the burden of

proving the age of the victim beyond all reasonable doubts.

11. In the case of State of Madhya Pradesh V.

Munna @ Shambhoo Nath reported in (2016) 1 SCC 696, the

consensual intercourse was proved and the prosecution failed to

prove the age of the victim, below the statutory requirement,

beyond reasonable doubts. Hence, the Hon'ble Supreme Court

refused to interfere with the judgment of acquittal recorded by

the High Court. The Hon'ble Supreme Court held that the

evidence of approximate age of the victim would not be

sufficient to any conclusion about the exact age of the victim.

12. In Rajak Mohammad V. State of Himachal

Pradesh reported in (2018) 9 SCC 248, the case was of

consensual intercourse, but the prosecution had failed to prove

that the victim was a minor on the date of occurrence. Hence,

the Hon'ble Supreme Court set aside the conviction recorded by

the High Court.

13. Thus, the irresistible conclusion in this case

would be that the victim was in consensual relationship with the Patna High Court CR. APP (SJ) No.1448 of 2018 dt. 12-03-2021

appellant and the prosecution failed to prove that she was below

16 years of age as prescribed under the law applicable on the

date of occurrence. In the circumstance, she was competent to

consent. Therefore, in my view, the prosecution has failed to

prove the charge of rape against the appellant and the learned

trial Judge has failed to appreciate the aforesaid infirmity in the

prosecution case in correct perspective.

14. In the result, the impugned judgment and order

are hereby set aside and this appeal is allowed.

15. Let the appellant be set free at once.

(Birendra Kumar, J) mantreshwar/-

AFR/NAFR                A.F.R.
CAV DATE                08.03.2021
Uploading Date          12.03.2021
Transmission Date       12.03.2021