Consent of victims negated charges under IPC Sections 366A and 376, as they were of legal age and had prior relationships with the appellants.

JUDGMENT :

PRADEEP KUMAR SRIVASTAVA, J.

1. Heard learned counsel for the parties.

2. The present appeal is directed against the judgment of conviction dated 07.01.2006 and order of sentence dated 09.01.2006 passed by learned 2nd Additional Sessions Judge, Jamtara in Sessions Case No. 266 of 2001 / 34 of 2005, whereby and whereunder the appellants have been held guilty for the offence under Section 366A & 376 of the I.P.C. and sentenced to undergo R.I. of five years along with fine of Rs. 1,000/- for both the offences under Section 366A & 376 of the I.P.C. with default stipulation. Both the sentences were directed to run concurrently.

FACTUAL MATRIX

3. The facts giving rise to this appeal is that on 28.06.2001, both appellants enticed the minor daughter of the informant Sahdeo Bauri and taken away her for illicit intercourse on pre-text of marriage. Accordingly, Jamtara P.S. Case No. 133 of 2001 dated 28.06.2001 was registered on the basis of written report of the informant for the offences under Sections366A / 34 of the I.P.C.

4. In course of investigation, the victim girl was recovered and her statement under Section 164 of the Cr.P.C. was recorded and she was subjected to medical examination and after conclusion of investigation, charge-sheet was submitted against the above-named appellants under Sections 366A / 376 / 34 of the I.P.C. The case was committed to the court of Sessions for trial.

5. In course of trial, apart from documentary evidences, altogether 12 witnesses were examined by the prosecution. The defence has also examined two witnesses and adduced some documentary evidences.

6. Learned counsel for the appellants assailing the impugned judgment and order of the appellants has vehemently argued that in this case two girls were missing from the School, who happens to be the daughter of P.W.-1 Anil Bouri and P.W.-2 Sahdeo Bouri respectively, who have admitted in clear terms in their evidence that both the victim girls were recovered by the police from the house of Professor Ashok Kumar Verma situated near the School, where both the girls were studying. The trial court as well as the High Court declined the payer of appellants to summon and examine Professor Ashok Kumar Verma, who ought to be examined. Therefore, Hon’ble High Court has disposed of the Misc. Petition of the appellants with observation that in case of non- examination of Professor Ashok Kumar Verma benefit of doubt can go in favour of the appellants, but the learned trial court has miserably failed to appreciate the above aspect and direction issued by Hon’ble High court. The evidence of P.W.-1 and P.W.-2 also finds corroboration from the evidence of P.W.-3 Dukhi Bouri, who is mother of one of the victim girls.

7. It is further submitted that one of the victim, who is daughter of P.W.-4 Amrawati Bouri, was married on the date of alleged occurrence and according to P.W.-4 appellant Sufal Biswas brought her daughter from her sasural on pretext of solemnizing marriage with her. She has also admitted that her daughter was not ready and willing to go to her sasural. P.W.-4 has herself disclosed the age of her victim daughter to be more than 18 years on the date of occurrence.

8. It is further argued that one of the victim P.W.-5 has also admitted love affair with appellant – Uttam Biswas and due to love affair and her consent, she does not raised any alarm at any point of time. Sexual intercourse has also taken place with consent of both parties. Similar statement was given by the victim P.W.-5 in her statement recorded under Section 164 of the Cr.P.C.

9.