The central legal point established in the judgment is that the age of consent for sexual intercourse by a girl, as per the Criminal Law Amendment Act (2013), influenced the court's decision in quashing the conviction of the petitioner under Section 376 IPC.

JUDGMENT :

Heard learned counsel for the parties.

2. This revision application is directed against the judgment dated 15.4.2004 passed by learned 1st Additional Sessions Judge, Gumla in Criminal Appeal No.53/1998; whereby the judgment of conviction and order of sentence, both dated 4.9.98, passed by the learned 2nd Assistant Sessions judge, Gumla in S.T. No.66/95, whereby the petitioner was convicted u/s 376 IPC and was sentenced to undergo R.I. for Five years; has been affirmed and the appeal filed by the petitioner was dismissed.

3. The prosecution case in short is that on 6.3.94 the informant was dragged out of her house by the accused persons and was brought to the house of petitioner. At about 10.00 p.m. in the night she was brought back to her home and on the way she was raped by Sukhdeo Oraon. Thereafter, a panchayat was convened but the accused persons disturbed the panchayati.

On the basis of the written report, the instant case was registered and after investigation, police submitted charge-sheet. Accordingly, charge was framed against the accused person for which he pleaded not guilty and claimed to be tried and finally the he was convicted.

4. Mr. A.K. Kashyap, learned senior counsel for the petitioner while assailing the judgment contended that though the petitioner has been convicted for the offence under Section 376, however from paragraph 7, 8 & 9 of the deposition of the victim herself, it transpires that the victim was more than 17 years and she was a consenting party at the time of occurrence, for the reason that she had categorically deposed that both to them were living as husband and wife. This categorical statement shows that the occurrence was with consent of the victim herself. Further, the lady herself deposed that since the petitioner failed to marry with her, the criminal case was filed against the petitioner.

Learned senior counsel further draws attention of this Court towards the prevailing law at the time of occurrence and submits that though the petitioner has been convicted under Section 376; however, by the Criminal Law Amendment Act (2013); the age of consent for sexual intercourse by a girl, has been increased to 18 years which was earlier 16 years and as such there will not be any offence at the time of occurrence because the victim had herself stated in her deposition that she is 17 years.

The other argument of learned senior counsel is that the doctor has not been examined in this case and the entire case is only due to the reason that the petitioner did not marry with the victim and on this ground only the petitioner has been dragged in the criminal proceeding and the conviction order passed by the trial court needs interference.

5. Learned APP opposed the prayer made by the petitioner and submits that there is specific allegation against this petitioner who had committed rape. Further, there is no error in the findings given by the courts below. As such, the conviction cannot be set aside, however he could not defend the submission of the learned senior counsel that the victim was a consenting party and there was a love affair between them.

6. Having heard learned counsel for the parties and after going through the judgments passed by the courts below and the LCR, specifically the deposition of the victim at paragraph nos.7, 8 and 9 it appears that the petitioner as well as the informant were living in relationship as husband and wife.

In this regard reference may be made to the case of Uday v. State of Karnataka reported in [(2003) 4 SCC 46], wherein the Hon'ble Apex Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given und