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Consent immaterial in case of a minor girl: Patna High Court

Maintaining sexual relations with a girl less than 16 years of age based on promises of marriage would be considered rape, irrespective of consent. The single bench consisting of J. Birendra Kumar shed light on Section 376 and 312 of the Indian Penal Code in the matter of Lalo Sharma S/o Dhyani Sharma, resident of village/Mauja – Baliya Basa Gopalpur, P.S. Udakishinganj, District – Madhepura v. The State of Bihar [Criminal Appeal (SJ) No. 222 of 2015].

The facts of the case are such that a girl of 15 years of age was dragged inside a crop field by the appellants where she was present to cut grass for feeding animals. Lalo Sharma then with the help of the other appellants ravished her and thereafter continued to have an on and off physical relation with her by alluring her that he would marry her. Due to the threat of the accused persons on the life of her family members, the complainant did not disclose about the occurrence. Consequently the other appellants too established a physical relation with her. The complainant became pregnant to which the appellants asked to undergo a miscarriage. The complainant refused to do so and subsequently also registered an FIR. Charges under section 323, 376, 312 and 504 of the IPC were placed on the appellants of which they were acquitted under Sections 323 and 504.

During trial in the Sessions Court, the Judge found that the appellant Lalo Sharma was guilty for the offence under Section 376 IPC and sentenced him to rigorous imprisonment of 10 years along with a fine of Rs.5,000/-, the default of which would attract another year of simple imprisonment. The other appellants were sentenced to 7 years of rigorous imprisonment under Section 312 of IPC along with RS.5,000/- fine, the default of which would again attract another year of simple imprisonment.

Upon appeal, the High Court held that “Consent of a girl under 16 years age was immaterial on the date of offence in view of definition of “rape” under Section 375 of the Indian Penal Code….Since there is no infirmity in the trustworthy evidence of PW-7 who is corroborated by the medical evidence and the victim was below 16 years of age on the date of alleged offence committed against her, hence even if she consented for subsequent sexual relationship on allurement of marriage by the appellant Lalo Sharma, the offence of rape is clearly proved against the appellant Lalo Sharma beyond doubt. Hence his conviction under Section 376 IPC requires no interference”. The medical opinion of the doctor was brought on record wherein it was stated that the victim had given birth to a child, however, owing to lack of evidence that the appellants were involved in the miscarriage of the victim, they were acquitted under Section 312 of IPC. The learned counsel for the appellant lastly prayed for the reduction of sentence against Lalo Sharma on the grounds that he was a young boy and had already undergone the minimum sentence of 7 years, which was allowed by the court.

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