1. D.K.Sinha,J. This Criminal Revision is directed against the order dated 04.08.2001 passed by the 1st Assistant Sessions Judge, Dumka in Sessions Case No.312 of 2000 whereby and whereunder the petition filed on behalf of the petitioner for his discharge under Section 227 Code of Criminal Procedure was rejected and the petitioner was called upon to stand charged for the alleged offence under Sections 493/376 of the Indian Penal Code.
2. The prosecution story in short was that the prosecutrix Tutul Kumari, aged about 15 years presented a written report before the Officer-in-Charge of Ramgarh within the District of Dumka stating that her father was a hawker who used to visit weekly. The petitioner was having a grocery shop opposite her house where the prosecutrix used to visit the shop for purchasing grocery items. On the previous month of "Baishak" in the year 2000 it was the day of full moon she visited his shop to which the petitioner proposed to marry her. Two days thereafter, the petitioner came to her home and finding her alone there he took her to the back side of her house and forcibly committed rape. She alleged that when she opposed his act, he then promised to marry her and relying upon his such assurance she consented and established physical relation at several occasions. She further alleged that whenever she asked him for marriage, the petitioner tried to subterfuge the issue. However, on account of prolonged sex with the petitioner she conceived and then she apprised the matter to her father on 28.07.2000 to which a "Panchayati" was held in the village but the petitioner refused to marry her and only then she presented her written report before the Police Station. A case was instituted vide Ramgarh P.S. Case No.69 of 2000 against the petitioner for the alleged offence under Sections 493/376 of the Indian Penal Code and after investigation final report was submitted for the alleged offence. The prosecutrix was examined by the Medical Board on 04.08.2000 duly constituted by the Superintendent, Sadar Hospital, Dumka wherein her uterus was found foetus of 20/22 weeks. On radiological examination her age was determined between 17-18 years and she was found bearing pregnancy of 5 to 5 1/2 months.
3. Learned Sr. Counsel Mr. Sharma submitted that in the facts and circumstances and in view of admitted consent sex between the parties no offence much less alleged under Sections 493/376 could be made out against the petitioner and the learned Additional Sessions Judge without considering the essence of consent for sex rejected the petition under Section 227 Cr.P.C. for his discharge. The prosecutrix has clearly stated that she was proposed by the petitioner at his shop for marriage but she did neither oppose nor did complain it before her father. She did not further oppose when she was taken to a lonely place behind her house with mala fide intention where they established sex without resistance from her. Protest was raised only after establishing bodily relationship then the petitioner offered to marry her. She had disclosed her age to be 15 years in her written report but her age was determined by the Medical Board to be about 17-18 years as on 04.08.2000 and at that time she was bearing pregnancy of 5- 5 1/2 months in the opinion of Medical Board yet prior to that she never informed such incident either in her family or to the police or to any other responsible person in the village and according to the learned Sr. Counsel the entire allegation was cooked up only with a view to put pressure upon the petitioner to marry her and that it was a clear case of consent sex.
4. Advancing his argument the learned Sr. Counsel Mr. Rajiv Sharma further submitted that though the petitioner had disclosed her age to be 15 years but her age was determined between 17-18 years, therefore, the prosecution cannot take the benefit of age of the girl under Section 375 (sixthly) Indian Penal Code wherein it was explained that a man is said to commit rape, who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances with or without her consent when she is under 16 years of age. At best, the learned Counsel added there could be an offence in the facts and circumstances of criminal breach of trust, for the argument sake but in no case the offence under Sections 493/376 I.P.C. is attracted against the petitioner and therefore, the order impugned may be modified/rejected by passing an appropriate order.
5. Learned Counsel Mr. Laljee Sahay appearing on behalf of the Complainant-O.P.No.2 opposed the contentions and submitted that the petitioner first committed rape on the complainant-O.P.No.2 and at that time she was below 16 years of age and then he proposed by making false promise that he would marry her. On the garb of false promise he continued sex with her for long as a result of which she conceived and when she raised her voice asking the petitioner to marry her, he flatly refused in "Panchayat". It was consistently argued on behalf of the petitioner that the Medical Board had determined the age of the petitioners about 17-18 years with the permissible margin of plus minus 2 years as held by the Apex Court in several decisions in determination of the age of a girl. It was not the case that on the day of presentation of a written report she was ravished by the petitioner but the process continued for long since "Baishak" Purnima, 2000 probably in the month of March/April, 2000 as such she was found carrying pregnancy about 5- 5 1/2 months when medically examined. The learned Counsel for the O.P. admitted that it was not a case that she consented to the desire of the petitioner for sex on the presumption that she was legally wedded wife of the petitioner and hence appropriate order may be passed.
6. Having regard to the facts and circumstances of the case, I find that the learned Counsel appearing on behalf of the O.P.No.2 fairly conceded that in the facts and circumstances no offence much less alleged under Section 493 I.P.C. is made out and hence charge proposed under Section 493 I.P.C. against the petitioner cannot be sustained under law. Accordingly, it is set aside and the impugned order dated 04.08.2001 in connection with Sessions Case No.312/2000, pending before the 1st Assistant Sessions Judge, Dumka is modified. In so far it relates to charge under Section 376 I.P.C. is concerned, I find prima facie material to proceed against the petitioner and the learned Additional Sessions Judge was justified in dismissing the petition when it was filed under Section 227 Code of Criminal Procedure on behalf of the petitioner for the discharge. However, this order would not adversely affect the interest of the petitioner in the Sessions Trial.
7. There being no merit, this Criminal Revision is dismissed however with the modification as aforesaid.