Consent of a woman above 16 years negates the charge of rape; the prosecution must prove all elements of the alleged offences.

JUDGMENT :

1.Heard learned counsel for the parties.

2. The present appeal is directed against the judgment of conviction and order of sentence dated 24.04.2007 passed by learned Additional Sessions Judge-III, East Singhbhum, Jamshedpur in Sessions Case No. 139 of 2005, whereby and whereunder the appellant has been held guilty for the offence under Section 376 & 366A of the I.P.C. and sentenced to undergo R.I. for seven years along with fine of Rs. 5,000/- for the offence under Section 376 of the I.P.C. and further sentenced to undergo S.I. for one year for the offence under Section 366A of the I.P.C. Both the sentences were directed to run concurrently.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal is that on 30.04.2004 at about 7:00 AM, the informant left his daughter (victim girl) at K.M.P.M. Inter College. The daughter of the informant also requested to send her brother at about 11:00 AM for returning back to home. It is further alleged that informant’s son Vivek reached at the said College at 10:45 AM and was waiting for his sister till 12 O’ Clock, but she did not come out from the College, then he returned to home and narrated the above matter to his parents. In the course of search of his daughter, the informant has come to know that one Bapi (appellant) along with his family members has enticed and taken away the victim girl for solemnizing marriage with her. Accordingly, F.I.R. being Bistupur P.S. Case No. 90 of 2004 was registered for the offence under Sections 366/34 of the I.P.C. against five accused persons including the appellant.

4. During course of investigation, the victim girl surrendered before the police and her statement was also recorded. She was sent for medical examination. After completion of investigation, charge-sheet was submitted against the above-named appellant and accordingly, after cognizance, the charges were framed for the offence under Sections 376 / 366A / 120(B) of the I.P.C. The appellant denied the charges leveled against him and claimed to be tried. After conclusion of trial, the impugned judgment and order was passed.

5. Learned counsel for the appellant assailing the impugned judgment and order of the appellant has vehemently argued that in the instant case, altogether six witnesses were examined by the prosecution, but the Investigating Officer has not been examined.

6. It is further submitted that except the victim girl (P.W.-6), there is no eye-witness of the occurrence.

7. It is further submitted that there was love affairs between the appellant and the victim girl since one year prior to the occurrence. The victim girl was major at about 19 years, which is admitted by her in her evidence. The victim has also identified love letters written by her to the appellant, which has been marked as Exhibit-B & B/1 and photographs, which have been marked as Exhibit-A Series. She has also identified her signature on Exhibit-C series, the applications filed by her before the Marriage Office in Purulia, although she has denied that she has attended the said Marriage Office.

8. It is further submitted that the appellant has also examined D.W.-1, Nand Dulal Ghosh, Teacher, A.D.L. Sunshine School, Jamshedpur, who has proved the admission register of the victim girl i.e. Exhibit-G, Exhibit-E and E/1 are birth certificates of victim girl and Exhibit-F is the Marriage Certificate. All the above evidences available on record not only indicates that the victim being a major girl voluntarily and on her own sweet will has accompanied the appellant to solemnize marriage with him and she had been residing for a long period without any resistance and protest, but she erred on the desire of her parents, who have lodged a false case against the appellant and manufactured a story of commission of rape.

9. It is further submitted that the factual background, in which the incident took place does not invoke the offence under Section 376 of the I.P.C. and provision of Section 366A of the I.P.C. is not ap