Above 16 years of age with her consent is not rape

Kolkata High Court (Appellete Side)

Hari Majhi vs The State on 29 November, 2013

CRAN No. 3383 of 2013
In
C.R.A. 591 of 2013

29.11.2013

In Re:- An application under Section 374(2) of the Code of Criminal Procedure;

In Re: Sk. Sahadat………………..Appellant/Petitioner

Mr. Amal Krishna Samanta………for the Petitioner

1. The matter is taken up for hearing on the petitioners application for bail under Section 389(1) of the Cr.P.C for used the impugned judgment in which he had been convicted for the offence under Section 376 of the IPC and awarded sentenced Rigorous Imprisonment for 7 years apart from fine.

2. It transpires from the available material including the statement of the Prosecutrix that she was aged about 17 years at the time of the alleged incident which fact she had also stated before the I.O. Even in her statement recorded under Section 164 Cr.P.C. on 27.01.2012 she had stated her aged to be 17 years. All this material clearly indicates that she had already attained the Statutory Consent-age of 16 years when the alleged occurrence initially took place on 20.04.2011.

3. Even the Trial Court has noted that the petitioner had sexual intercourse with the Prosecutrix 30-40 times over a considerable span of time, and that he did so by giving here a false promise of marriage. The angle of any forcible act of intercourse has not transpired any where in the entire available material.

4. It needs to be noted that while the present Statutory Consent-age has been enhanced by a subsequent 2

5. legislation, yet at the relevant time of the alleged offence such age was undisputedly 16 years only.

6. In the case of “Hari Majhi Vs. The State (1990) CRI.L.J 650”, A Division Bench of this Court has clearly held that an accused cannot be guilty of rape in the even of the prosecutrix agreeing to sexual intercourse merely on promise to marry her.

7. In a subsequent case “K.P.Thimmappa Gowda Vs. State of Karnataka (2011)14 Supreme Court Cases 475”, the Apex Court has clearly held that in the case where the accused was convicted by the High Court had assured the Prosecutrix that he would marry her and had sex with her, there was no offence under Section 376 because sex with a woman above 16 years of age with her consent is not rape.

8. In view of the aforesaid decisions which are directly applicable to the facts of the present matter, this appears to be a fit case for allowing the bail prayer of the petitioner who has already remained in detention for substantial period now.

9. He may therefore be released on a bail for Rs. 10,000/- with two sureties of Rs. 5000/- each to the satisfaction of the Ld. Chief Judicial Magistrate, Purba Medinipur, during pendency of the present appeal.

(Sudip Ahluwalia, J.)

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