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2023 DIGILAW 359 (JHR)

Abu Tahir v. State of Jharkhand

2023-03-20

DEEPAK ROSHAN

body2023
JUDGMENT : 1. The instant appeal is directed against the judgment of conviction dated 19.09.2003 and order of sentence dated 23.09.2003 passed by learned Additional Sessions Judge, Fast Track court-I, Pakur, in Sessions Case No. 163 of 2002/19 of 2003; whereby the learned trial court sentenced the appellant to undergo R.I. for 7 years for the offence under section 376 IPC and also pay a fine of Rs. 500/- and in default of fine, further sentenced to undergo R.I. for 3 months. 2. The prosecution case is based on the information of one Nazir Sheikh who is the father of the victim girl, namely, Margina Khatoon. The victim girl was employed as maid servant in the house of Nesh Mohammad and she was also engaged for making ‘Biri’. About 20 to 25 days prior to the fardbeyan the informant knew from his wife that Abu Thair took Margina in a vacant house and committed rape upon her and consequently she became pregnant. Appellant also told that he will marry with her but later refused to marry. The informant tried to settle the matter by way of Panchayeti, but the matter has not been settled so the informant reported the matter to Pakur (M) P.S. and on the basis of the fardbeyan the case has been instituted. 3. Learned senior counsel for the appellant submits that from perusal of the deposition of the victim girl itself who is P.W.-3, it appears that there was love affair between the appellant and the victim girl and both of them also solemnized marriage subsequently. He further draws attention of this court towards the deposition of the informant himself who is the father of the victim girl and submits that he himself deposed before the court below that he admits the appellant as son in law and he also wants that his daughter should live peacefully with the appellant. Relying upon the aforesaid deposition learned senior counsel submits that it was not a case of 376 IPC and the learned trial court even after going through the evidences, both oral and documentary, has failed to appreciate that it was a matter of love affair and even the informant has accepted the appellant as son in law. Relying upon the aforesaid deposition learned senior counsel submits that it was not a case of 376 IPC and the learned trial court even after going through the evidences, both oral and documentary, has failed to appreciate that it was a matter of love affair and even the informant has accepted the appellant as son in law. For the age of the appellant, learned senior counsel refers to the deposition of the doctor, who is P.W.4, and submits that as per the doctor the girl was not below 17 years and as such she cannot be treated as a minor for the purpose of marriage in accordance with Mohammdan Law. 4. Learned Addl. P.P. though oppose the prayer for acquittal; however, he could not deny the fact that the doctor has assessed age of victim to be not less than 17 years. Learned Addl. P.P. also could not rebut the statement of the victim girl herself that they married before the court. 5. Having regard to the facts of the case and after going through the LCR; especially the deposition of the victim girl, it transpires that the victim girl and the appellant had already married during pendency of trial. It further appears that though at the time of first information report, the marriage could not take place between the appellant and the informant, but from the deposition made before the trial court it clearly transpires that the victim girl had married with the appellant, inasmuch as, the victim girl had deposed at paragraph 6 which reads as follows:- vcq ls esjh 'kknh dksVZ ls gks x;kA ml le; esjk nSu egj iUnzg gtkj :i;k rS; gqvk FkkA :0 101 kknh ds le; ns fn;k Fkk A The aforesaid deposition clearly transpires that there was a love affair between them, as such it can safely be inferred that no force has been applied in commission of the offence. As a matter of fact, the victim and the complainant have in unequivocal term deposed two things. Firstly, the victim married the appellant and secondly the informant has admitted him as a son in law. 6. Nevertheless, at the same time it cannot be said that no offence of Rape has been committed by the appellant. As a matter of fact, the victim and the complainant have in unequivocal term deposed two things. Firstly, the victim married the appellant and secondly the informant has admitted him as a son in law. 6. Nevertheless, at the same time it cannot be said that no offence of Rape has been committed by the appellant. Section 375 of IPC which deals with the definition of Rape stipulates that if the girl is under 18 years of age, her consent does not matter. For brevity, relevant part of Section 375 is quoted herein below. “375. Rape.-- A man is said to commit "rape" if he-- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First. …….. Secondly…… Thirdly…….. Fourthly……. Fifthly…….. Sixthly. With or without her consent, when she is under eighteen years of age. Seventhly.…….” So far as the age of the appellant is concerned; though the informant-P.W.7 stated her age to be about 15, but the doctor has assessed the age of the victim to be not less than 17 years. Thus admittedly; she was a minor; as such, the appellant cannot take a plea of consensual intercourse as it is against description no.6 of the definition quoted hereinabove. 7. Thus admittedly; she was a minor; as such, the appellant cannot take a plea of consensual intercourse as it is against description no.6 of the definition quoted hereinabove. 7. It has been argued on behalf of the appellant that both the victim and the appellant belongs to Muslim religion by faith and as per the personal law, a girl can marry after attaining the age of puberty which is 15 years; thus, looking that aspect of the matter, the trial court has erred in convicting the appellant for the offence of Rape. Though the argument of the learned senior counsel is very impressive; but it is no more res integra that a personal or a religious right cannot override the mandate of the Criminal Law i.e., POCSO & IPC. Hence this Court holds that no error has been committed by the learned trial court in convicting the petitioner for the charge of Rape. 8. Nonetheless, this Court cannot shut its eyes from the deposition of main prosecution witnesses i.e., the victim girl and the informant-father and there is no hesitation in holding that it was a consensual intercourse between the parties and no force has been used against her will and even the informant has admitted him as a son in law. Consequently, looking to the overall facts and circumstances of the case; interest of justice would be sufficed if the sentence imposed by the learned trial court be modified for the period already undergone. 9. Accordingly, without interfering with the judgment of conviction dated 19.09.2003; order of sentence dated 23.09.2003 passed by learned trial court is modified to the extent that the appellant is sentenced for the period already undergone. 10. As a result, the instant appeal stands partly allowed. The appellant shall be discharged from the liability of his bail bonds. 11. Let a copy of this order be communicated to the trail court and the lower court records be sent to the court concerned forthwith.