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Md. Iliyas @ Iliyas vs The State Of Bihar on 11 July, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1138 of 2016
Arising Out of PS.Case No. -123 Year- 2004 Thana -BAHADURGANJ District-
KISANGANJ

Md. Iliyas @ Iliyas, Son of Imamuddin @ Imajuddin, resident of
Village-Beni, Post Office and Police Station-Bahadurganj, District-
Kishanganj.

…. …. Appellant
Versus
The State of Bihar
…. …. Opposite Party/Respondent

Appearance :

For the Appellant : Mr. Najmul Hoda, Adv.
For the State : Ms. Shashi Bala Verma, APP

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL JUDGMENT ORDER
Date: 11-07-2018

The appellant/Md. Iliyas @ Iliyas has been

convicted under Section 376 of the Indian Penal Code (in short

the I.P.C.) and has been sentenced to undergo rigorous

imprisonment for ten (10) years without remission, to pay a

fine of Rs. 20,000/- and in default of payment of fine to

further suffer rigorous imprisonment for one (1) year. He has

additionally been convicted under Section 323 of I.P.C. and

has been sentenced to undergo rigorous imprisonment for one

(1) year. The aforesaid judgment of conviction and order of
Patna High Court CR. APP (SJ) No.1138 o f 2016 dt.11-07-2018

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sentence are dated 16.09.2016 and 20.09.2016 respectively,

passed by the learned Additional District Sessions Judge-I,

Kishanganj in Sessions Trial No. 601 of 2006, arising out of

Bahadurganj P.S. Case No. 123 of 2004.

2. The conviction of the appellant is based solely

on the testimony of the prosecutrix (P.W. 6), who has stated

that after the rape, she married the appellant and had been

living as his wife. The other witnesses have been declared

hostile.

3. While addressing this Court in appeal, learned

Advocate for the appellant has drew the attention of this Court

to certain documents demonstrating the juvenility of the

appellant at the time of the occurrence. A transfer certificate

issued by a Madarsa declares the age of the appellant as

01.01.1996. The AADHAR card of the appellant also describes

his age as 01.01.1996. If this is the correct age of the

appellant, he was merely eight (8) years old at the time of the

occurrence.

4. This does not at all appear to be a correct

disclosure of the age of the appellant.

5. Section 7-A of the Juvenile Justice (Care and

Protection of Children) Act, 2000 (in short the Act), which is

applicable to the facts of the present case, reads as

hereunder:-

7-A. Procedure to be followed when
Patna High Court CR. APP (SJ) No.1138 o f 2016 dt.11-07-2018

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claim of juvenility is raised before any
Court.-(1) Whenever a claim of juvenility is
raised before any Court or a Court is of the
opinion that an accused person was a juvenile on
the date of commission of the offence, the Court
shall make an inquiry, take such evidence as may
be necessary (but not an affidavit) so as to
determine the age of such person, and shall
record a finding whether the person is a juvenile
or a child or not, stating his age as nearly as may
be:

Provided that a claim of juvenility may
be raised before any Court and it shall be
recognised at any stage, even after final disposal
of the case, and such claim shall be determined in
terms of the provisions contained in this Act and
the rules made thereunder, even if the juvenile
has ceased to be so on or before the date of
commencement of this Act.

(2) If the Court finds a person to be a
juvenile on the date of commission of the offence
under sub-section (1), it shall forward the juvenile
to the Board for passing appropriate order, and
the sentence, if any, passed by a Court shall be
deemed to have no effect.

6. The provisions of aforesaid section under the

Act provides that if a Court is of the opinion that the accused

was a juvenile on the date of the commission of the offence,

he shall make an inquiry and take such evidence, as may be

necessary, so as to determine the age of such person and

shall record a finding to that effect. The aforesaid plea of

juvenility could be raised before any Court and would be
Patna High Court CR. APP (SJ) No.1138 o f 2016 dt.11-07-2018

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recognised at any stage, even after the final disposal of the

case, and such claim would be determined in terms of the

provisions contained in the Act and the Rules made

thereunder, even if the juvenile has ceased to be so on or

before the date of commencement of the Act.

7. Prima facie, the disclosure of the appellant

does not appear to be correct. The nature of accusation and

the age of the victim girl completely belie the assertion of the

appellant. The victim has stated her age to be less than 18

years on the date when she was first subjected to rape. After

about three years of the occurrence, she had deposed before

the Trial Court and at that time, she has stated her age to be

22 years. Whatever be the calculation, the victim was not less

than 18 years of age at the time of the occurrence. This Court

says so because, admittedly, the victim was, at that time,

married to somebody else. In such a situation, the assertion

of the appellant that he was only 8 years of age does not

appear to be correct; more so, when the appellant and the

victim married and stayed together as man and wife.

8. As such, aforesaid statement of the appellant

is not tenable and since this Court is of the opinion that it is

prima facie a wrong disclosure of age, no inquiry is required to

be conducted with respect to the age of the appellant.

9. The assertion of the appellant, therefore,
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about his juvenility is totally rejected.

10. Now to the merits of the case:

The appellant and seven others have been tried

for the offences under Sections 147, 323, 452, 380 and 376 of

the I.P.C. The allegation levelled in the F.I.R. is that all the

accused persons, after having made an unlawful assembly,

committed trespass of the house of the informant/Munni (P.W.

6) and voluntarily caused hurt to her and committed theft of

personal belongings. Appellant/Md. Iliyas @ Iliyas is alleged

to have committed rape with the informant one month prior to

01.10.2004 at about 4:00 P.M. With the aforesaid allegation,

a complaint was lodged by P.W. 6 which was sent under

Section 156(3) of the Code of Criminal Procedure, 1973 for

institution of a regular case, whereupon Bahadurganj P.S.

Case No. 123 of 2004, dated 26.10.2004, was instituted for

investigation for the offences under the aforesaid sections of

the I.P.C.

11. After investigation, charge-sheet was

submitted on 31.03.2006 and cognizance was taken.

Thereafter, the appellant and others were put to trial.

12. The learned Trial Court, after examining nine

witnesses on behalf of the prosecution, acquitted the other

accused persons, but convicted the appellant for the offence

under Section 376 of the I.P.C. and sentenced him as
Patna High Court CR. APP (SJ) No.1138 o f 2016 dt.11-07-2018

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aforesaid.

13. Out of nine prosecution witnesses, P.Ws. 1,

2, 3, 4, 5 and 7 have claimed complete ignorance about the

occurrence and have been declared hostile.

14. P.W. 8 is the second Investigating Officer of

the case, who has only submitted charge-sheet against the

accused persons including the appellant. He, in his cross –

examination, has admitted that only on the orders of the

Superintendent of Police, he submitted charge-sheet and he

did not record the statement of any of the witnesses.

15. Bhola Singh/P.W. 9 is an another

Investigating Officer of this case, who had taken up the

investigation; but after his transfer, he handed over the

charge to the S.H.O. of the concerned police station. He has

proved the formal F.I.R. (Ext.-3) as well as the signature of

Aslam Ali on the complaint petition (Ext.-2). However, he has

stated that the prosecutrix/P.W. 6 did not state before him

that she had married Hasib or the appellant.

16. Thus, the only evidence which is crucial for

any decision in this case is the evidence of the prosecutrix

(P.W. 6). She has categorically stated before the Court that

she had married the appellant. The occurrence is stated to be

of the year 2004 and at that time, she was married to some

other person from before. The appellant abducted her without
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her consent and committed rape on her. Thereafter, she

married the appellant and effected a settlement with him. At

the time of the occurrence, she claims her age to be 16 – 17

years. However, while deposing before the Trial Court, she

wept inconsolably and told the Trial Court that she was not

treated well by her husband. On question being put to her

about her future plans, she stated that she wished to stay with

the appellant only, but feared serious consequences at the

hands of the appellant.

17. Learned counsel appearing for the appellant

has submitted that the statement of the victim girl that she

was 16 – 17 years of age at the time of the occurrence does

not appear to be correct. The occurrence is said to have taken

place a month prior to 01.10.2004 and the prosecutrix

deposed before the Trial Court on 06.01.2007, i.e. after less

than three years later. That time, she stated her age to be 22

years. This renders the age of the victim/prosecutrix more

than 18 years on the date of the occurrence. Secondly, it has

been argued that there could have been no reason for the

prosecutrix to have reported the matter a month later than

the occurrence, unless the association of the appellant with

the prosecutrix was voluntary and with her consent. Had it

not been the case, there would have been litigation at the

instance of aforesaid Hasib with whom the prosecutrix is said
Patna High Court CR. APP (SJ) No.1138 o f 2016 dt.11-07-2018

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to have been married prior to her marriage with the appellant.

That apart, if that was the case, the victim would not have

agreed to become the wife of the appellant.

18. In that view of the matter, it has been

argued on behalf of the appellant that the allegation is

absolutely incorrect and cannot be believed.

19. The inordinate delay in bringing the matter to

the Court further renders the prosecution version highly

doubtful. In that event, it has further been argued that the

Trial Court ought not to have relied upon the statement of the

prosecutrix that she has not being treated well after marriage.

This was not the charge for which the appellant was tried;

rather, it was a subsequent event. It has, therefore, been

argued that the Trial Court has gone on emotional reasons to

convict the appellant under Section 376 of the I.P.C. Even if

the fact that the victim was not treated well after her marriage

with the appellant is correct, then also, no case under Section

376 of the I.P.C. can at all be said to have been made out.

20. Considering the aforesaid facts, the

conviction of the appellant under Section 376 of the I.P.C.

does not appear to be inconsonance with the facts and the

law. As such, there is no way in which the same can be

sustained.

21. Thus, for the reasons aforesaid, the
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judgment of conviction dated 16.09.2016 and order of

sentence dated 20.09.2016, passed by the learned Additional

District Sessions Judge-I, Kishanganj in Sessions Trial No.

601 of 2006, arising out of Bahadurganj P.S. Case No. 123 of

2004, are, hereby, set-aside.

22. The appeal stands allowed.

23. Appellant/Md. Iliyas @ Iliyas is in custody.

He is directed to be released forthwith from jail, if not wanted

in any other criminal case.

24. Let a copy of this judgment be transmitted to

the Superintendent of the concerned jail for information,

record and compliance.

(Ashutosh Kumar, J)

Praveen-II/-

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 12.07.2018
Transmission 12.07.2018
Date

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