Judgment Indu Prabha Singh, J. 1. Criminal Appeal No. 329 of 1990 has been heard along with Criminal Revision No. 823 of 1990 and this judgment will govern both of them. 2. Criminal Appeal No. 329/1990 is directed against the judgment and order date 9-31-8-1990 passed by Shri Anant Prasad Shrivastava, Sessions Judge, Sitamarhi in S.T. No. 84 of 1989. By this judgment the learned Sessions Judge had convicted the appellant of the offence punishable under Sec. 376 of the Indian Penal Code and has sentenced him to undergo rigorous imprisonment for 3 years. 3. The prosecution case, in short, is that in between the night of 20/21st November, 1988 the appellant under the pretext of performing inter caste marriage with the informant Bhagwati Kumari@ Devi alias Ranjani Kumari@ Devi (PW 3) kidnapped her, still a minor from the lawful custody of her parents and took her to Howrah Railway Station. There on the pretext of answering the call of nature he left PW 3 alone and departed therefrom. When he did not return back after a considerable time. PW 3 became anxious but was helped by an unknown Muslim gentleman who took her to the South Port Police Station from where she was produced before the Additional Collector (Judicial) Alipore South 24 Parganas. West Bengal. The learned Additional Collector (Judicial) directed her to be taken to Pupri in the District of Sitamarhi under police escort. Accordingly, she was taken to Pupri where her Jardbeyan (Ext. 4) was recorded on 30- 11-1988 by the Officer Incharge of Pupri Police Station on the basis of which a formal FIR (Ext. 5) was drawn up. The statement of PW 3 (Ext. 2) under Sec. 164 of the Code of Criminal Procedure. 1973 (in short the Code) was recorded by a Magistrate on 1-12-1988. To ascertain her correct age a Medical Board was constituted which submitted its report (Ext. 3) dated 7-2- 1989 according to which she was above 18 years of age on the date of her examination. The police after completing the investigations submitted the charge sheet under Secs. 363, 366-A and 376 of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the Court of Session. On trial for the offences under Secs. The police after completing the investigations submitted the charge sheet under Secs. 363, 366-A and 376 of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the Court of Session. On trial for the offences under Secs. 363, 366-A and 376 of the Indian Penal Code by the learned Sessions Judge, the above named sole accused Sanjay Kumar alias Sanjay Kumar Bubna (present appellant) was acquitted of the charges under Secs. 363 and 366..A of the Indian Penal Code. He was, however, convicted under Sec. 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 3 years. It is against this conviction that the present appeal has been filed. 4. In this appeal the appellant has contended that the father of PW 3 had lodged informatory petition (Ext. C) on 24-11-1988 to the effect that PW 3 had left the house on 20-11-1988 after being annoyed with her parents. In Ext. C there is no allegation against the present appellant even when it was lodged four days after the alleged occurrence. Moreover, in her statement made under Sec. 164 of the Code (Ext. 2) recorded on 1-12-1988. PW 3 has disclosed her age to be 17 years. 5. The defence of the appellant is the total denial of the alleged occurrence. He has examined three DWs and had proved Ext. B which is a report filed in the Alipur Court. According to Ext. B which is a report of DW I, the Police Officer of Calcutta (PW 3) had admitted before him that she was married to the present appellant one year before November, 1988 namely in November, 1987. Also the appellant has contended that as per Ext. C lodged by the father of PW 3 no allegation has been made against him from Ext. A which is the medical examination report of Doctor Ila Mishra PW 3 was found to be 20 years old on 30-11-1988. All these things will go to show that the present appellant is innocent. PW 3 is his legally married wife the marriage having taken place in February. 1988. After this marriage PW 3 became pregnant in May, 1988 and give birth to a male child. There is no question of committing rape on a married wife she being above 15 years of age. PW 3 is his legally married wife the marriage having taken place in February. 1988. After this marriage PW 3 became pregnant in May, 1988 and give birth to a male child. There is no question of committing rape on a married wife she being above 15 years of age. On this ground it has been contended that he be acquitted of the charge under Sec. 376 of the Indian Penal Code. 6. Criminal Revision No. 823 of 1990 has been filed by PW 3 on 27-111990. In this petition she has described herself as the wife of Sanjay Kumar Bubna (opposite party No. 2) who happens to be the appellant in Criminal Appeal No. 329/90. This also shows that she is the married wife of opposite party No. 2. This application in revision is directed against the judgment and order dated 31-8-1990 passed by the learned Sessions Judge. Sitamarhi in S.T. No. 84/89. In this revision application the petitioner has challenged the acquittal of opposite party No. 2 of the offences under Secs. 363 and 366-A of the Indian Penal Code. As per the prosecution story PW 3 was aged about 16 years in the year 1988. Opposite Party No. 2 was a close friend of her elder brother and both the families were on visiting terms. In due course they became intimate and agreed to marry. In the month of February. 1988 opposite party No. 2 took the present petitioner to Lal Mandir and put vermillion on her head before the deity and promised to keep her as his wife for life. Further allegation of petitioner is that since then opposite party No. 3 used to come to her house and used to commit rape on her against her Will. In due course the petitioner became pregnant some time in May, 1988 and gave birth to a male child. On being asked opposite party No. 2 also accepted his marriage with the petitioner in presence of her parents. In the night of 20/21st day of November. 1988 at about 2 a.m. opposite party No. 2 came to her and asked her to accompany her for going to Poona where he was working as a contractor. He, however took her to Howrah where he left her along at railway station. In the night of 20/21st day of November. 1988 at about 2 a.m. opposite party No. 2 came to her and asked her to accompany her for going to Poona where he was working as a contractor. He, however took her to Howrah where he left her along at railway station. She was helped by a Muslim gentleman who took her to the police station from where she was produced before the Court of Additional Collector (Judicial) Alipur who sent her to Jiupri Police station under police escort. After completing the investigations the police submitted the charge-sheet under Secs. 363,366A and 376 of the Indian Penal Code. However, on trial the learned Sessions Judge acquitted the opposite party No. 2 of the charges under Secs. 363 and 366-A of the Indian Penal Code and convicted him only under Sec. 376 of the Indian Penal Code. The defence of opposite party No. 2 in the course of trial was that he did not commit rape on the petitioner. Coming from a rich family opposite party No. 2 has been falsely implicated by the petitioner and his family on false allegations only to black - mail him. The learned Sessions Judge has wrongly acquitted opposite party No. 2 of the. charges under Secs. 363 and 366-A of the Indian Penal Code. The learned Court below has failed to consider the fact that the father of opposite party No. 2 could dare to file a false affidavit before this Hon ble Court saying that they can accept the petitioner and the sucking baby as their family members but at the final stage they were not wiling to do so. The judgment of the Court below is based only on conjectures and surmises and the acquittal of opposite party No. 2 of the charges under Secs. 363 and 366-A of the Indian Penal Code is not correct in the eyes of law. Hence the petitioner filed this revision application before the Court with a prayer that opposite party No. 2 may also be convicted under Secs. 363 and 366-A of the, Indian Penal Code and may suitably be punished for the same. 7. The parties have been heard at length on various questions of law and facts raised in his criminal appeal as also in the criminal evasion. 363 and 366-A of the, Indian Penal Code and may suitably be punished for the same. 7. The parties have been heard at length on various questions of law and facts raised in his criminal appeal as also in the criminal evasion. I will firstly take up for consideration the criminal appeal filed on behalf of the sole appellant Sanjay Kumar alias Sanjay Kumar Bubna. Though he was acquitted of the charges under Secs. 363 and 366-A of the Indian Penal Code by the learned trial Court, he was convicted of the charge under Sec. 376 of the Indian Penal Code. On behalf of the appellant it has been submitted that as per the prosecution case alleging therein that PW 3 the informant, who was above 15 years of age was legally married to the present appellant and as they were living as husband and wife he could not have been convicted of the offence under Sec. 376 of the Indian Penal Code. Further my attention has also been drawn to the fact that in the course of living together as husband and wife PW 3 conceived and subsequently gave birth to a male child. This will also show that they were living as husband and wife and there was no question of committing rape by the husband on his wife she being above 15 years of age. 8. In this connection. I will firstly refer to Section 375 of the Indian Penal Code which denies the offence of rape: "375. Rape- A man is said to commit rape who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions. Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." Relying on this definition of rape, the learned counsel appearing on behalf of the appellant has submitted that since PW 3 was above 15 years of age and since she was legally married wife of the appellant there could be no question of committing rape on her by the appellant as is clear from the aforesaid law contained in Sec. 375 of the Indian Penal Code. 9. 9. The charge under Sec. 376 of the Indian Penal Code has been framed against the appellant in the following manner: "Thirdly, that you on or about the same day (in the night of 20-11-1988 and 21-11-1988) and at same place for the last about eight months prior to 10-11-1988 at village Jhajhihat Pupri. P.S. Pupri. District Sitamarhi committed rape on Bhagwati Kumari@ Ranjani Kumari and conceived her and thereby committed an offence punishable under Sec. 376 of the Indian Penal Code." From this it would appear that as per the charge framed against the appellant he was committing rape on PW 3 since eight months prior to 20-11-1988. From this also it would appear that as per the prosecution case the appellant was having sexual relationship with PW 3 much prior to the date of alleged occurrence. In this connection a reference may also be made to Ext. 2 which is the statement of PW 3 recorded under Secs. 164 of the Code on 1-12-1988. In her this statement she has stated that prior to her marriage with the appellant he had never had any physical relationship with her. She has further stated that both of them were married in a night in a temple in course of which the appellant put vermillion on her head and in this way the marriage was performed. From this also it would appear that PW 3 has not denied her marriage with the appellant in the month of February. 1988. since when they were living as husband and wife. Under this circumstance could the appellant be accused of committing rape on PW 3 if she was about 15 years of age in the month of February. 1988? In this background the age of PW 3 becomes important and it has to be properly verified and concluded. In her statement made under Sec. 164 of the Code (Ext. 2) she has disclosed her age to be 17 years en 11-2-1988. From this it would appear that she was definitely above 15 years of age in February. 1988 though in the estimation of Magistrate recording the statement on 1-12-1988 she was aged 17-18 years. She was examined by a Medical Board on 7-2-1989 consisting of the Civil Surgeon. Sitamarhi and others. The report of the Medical Board is Ext. 3. From this it would appear that she was definitely above 15 years of age in February. 1988 though in the estimation of Magistrate recording the statement on 1-12-1988 she was aged 17-18 years. She was examined by a Medical Board on 7-2-1989 consisting of the Civil Surgeon. Sitamarhi and others. The report of the Medical Board is Ext. 3. From this report also it would appear that the age of PW 3 was nearly 18 years on 7-2-1989. This will also show that on February. 1988 she would be nearly 17 years of age. On behalf of the appellant reliance has been placed on the report of Dr. Ila Mishra dated 30-11- 1988 (Ext. A) according to which she found PW 3 to be about 20 years. On behalf of the prosecution it has been contended that Dr. Ila Mishra has not been examined in this case and. therefore. no reliance should be placed on Ext. A. Even if this argument is accepted as correct from Ext. 3 itself it would appear that in February. 1988 PW 3 was aged about 17 years. Further reference may be made to the transfer certificate granted by Rajkiya Kanya Uch Vidyalaya. Janakpur Road (Ext. 7) from which it would appear that the date of birth of PW 3 was 15-1-1975. As against it the defence has proved Ext. E which is report submitted to the First A.D.M. (Judicial) Alipur by the police on 25-11-1988. In this report her age has been described as 18 years. Obviously this must have been based on the statement of PW 3 wherein she described herself as the wife of Sanjay Kumar (appellant). In this connection my attention has been drawn to the judgment of the learned Court below in which the age of PW 3 was found to be in the vicinity of 16 years in February 1988. This also shows that the learned Sessions Judge has also accepted this fact but still he proceeded to convict the appellant under Sec. 376 of the Indian Penal Code even when it was made out before him that the appellant was nobody else but the husband of PW- 3 the informant. 10 From the aforesaid discussions it becomes clear that on the alleged date of occurrence. 10 From the aforesaid discussions it becomes clear that on the alleged date of occurrence. PW 3 was above 15 years of age and if her marriage in the month of February 1988 is accepted the evidence on record clearly goes to show that on this date also she was above 15 years of age. On 10-5-1990 when PW 3 "vas examined before the Court her age was assessed to be 18 years by the Court. All these clearly go to show that in February 1988 when she is said to be married to the appellant as per the case of the prosecution she was above 15 years of age. This being the position the appellant could not have been convicted under Sec. 376 of the Indian Penal Code for having sexual intercourse in February. 1988. It is important to note in this connection that in her own statement in Cr. Revision No. 823 of 1990 filed on 27-11-1990. PW 3 has described herself to be the wife of the present appellant. In this connection it would not be out of place to mention that PW 3 had herself filed Criminal .Revision No. 543 of 1999 before this Court on 13-9-1999 under Sec. 125 of the Code the record of which was called for by this Court while hearing the present appeal and revision. In this criminal revision also PW 3 has described herself to be the wife of the present appellant and has claimed maintenance under Sec. 125 of the Code. DW 1 Md. Akram has stated before the Court that when PW 3 was produced before him by the Muslim gentleman of Calcutta on 24-11-1988 she disclosed that she was the wife of the present appellant and that they were married about one year ago. This takes the date of marriage to 24-11-1987 even the Sessions Court in the judgment has assessed that in February. 1988. PW 3 was in the vicinity of 16 years of age. All these clearly go to show that PW 3 was definitely above 15 years of age in February 1988 and therefore accepting the position that the present appellant happens to be her husband no offence under Sec. 376 of the Indian Penal Code could be proved against him even if it be accepted that he had sexual relationship with her. In her statement made under Sec. 161 of the Code (Ext. In her statement made under Sec. 161 of the Code (Ext. 2). PW 3 has clearly stated that before her marriage to the appellant .he did not have any physical contact with her. Before concluding. I would like to refer to the counter affidavit of Dhananjay Kumar the full brother of opposite party No. 2 filed in Criminal Revision No. 823 of 1990. In the first place it may be mentioned that this will not bind opposite party No. 2. Therefore it is hardly of any consequence. 11. For the grounds stated above it is clear that the offence under Sec. 376 of the Indian Penal Code is not made out against the appellant. In this connection it may be mentioned that the learned Court below has itself not accepted the prosecution story with respect to the kidnapping of PW 3 by the present appellant in the night between 20/21st November. 1988. As a matter of fact the present appellant has been acquitted of these charges by the learned Court below by his judgment. As against it in criminal revision a prayer has been made to convict the appellant (opposite party No. 2) also under Secs. 363 and 366-A of the Indian Penal Code. From the prosecution story itself it will become clear that PW 3 was married to opposite party No\ 2 the appellant in February 1988 and therefore there could be no question of any kidnapping or the offence under Secs. 363 and 366-A of the Indian Penal Code against him. This part of the prosecution has also rightly been disbelieved by the learned Court below. Hence I do not find any merit in the revision application noted below. 12. For the reasons stated above Cr. Appeal No. 329/90 is allowed and. the judgment of conviction of the learned Court below is set aside. The appellant is acquitted of the charge under Sec. 376 of the Indian Penal Code and is directed to be set at liberty. So far as Criminal Revision No. 823/90 is concerned it is dismissed for the reasons stated above.