It is further an undisputed fact that she was recovered by the police from the house of Bishnudayal.
When Jagarnath protested, they said that they had done so and he was at liberty to take whatever action he liked.
The prosecution case hinged around these questions.
Thereafter, Jagarnath on June 10, 1967, lodged a report at Police Station, Sahabganj at 4.30 p.m. alleging that the four named accused had kidnapped his daughter, to sedue or force her to have illicit inter companyrse with Bishnudayal.
Bishnu dayal is a resident of village Lawapur, Police Station Mahnar, District Muza ffarpur, Bisbnudayal and Bhatani Devi have numberissue.
The companyplainant Jagarnath awaited the return of Sumitra for more than a week, but the was number sent back.
Bishnudayal, who was accused 3 and is number the appellant before us, is the husband of Bhatani Devt.
What was her age at the time of occurrence ?
Jagarnath younger daughter, Sumitra P.W. 5 is unmarried.
The Doctor testified that there was a paraurethrat tear on the vagina of Sumitra Devi and her hymun was also found ruptured on the basis of these facts, the Doctor opined that Samitra Devi P.W. 9 had been subjected to forcible sexual intercourse.
She testified that she was forcibly raped repeated by Bishnudayal appellant for several nights in a house at village Lawapur.
Bhatani Devi accused 4, was acquitted.
On June 24,1967, the investigating Police Officer, in the presence of P W. 16 and P.W, 17, recovered the girl Sumitra from the house of the appellant.
Ganga Prasad, who was accused 1 in the trial Court, is the elder brother ofDebnandan, and Kameshwar accused 2 is his nephew.
The evidence with regard to the age of the girl was given by the prosecutrix P.W. 9 and her father, Jagarnath P.W. 4 and Dr. Asha Prasad P.W. 14 .
1967, there was a puja in the house of Jagarnath P.W. 4 He had invited a good many person including the accused, Ganga Prasad and Katreshwar Prasad.
Her testimony with regard to the factum of rape was companyroborated by the medical testimony rendered by Dr. Asha Prasad P.W. 24 .
On May 19.
Jagamath thereupon went to village Bahera, bat did number find his daughter there There, he learnt from two persons who were among those who had attended the puja at his house, that his daughter, Sumitra had been married to Bishnudayal appellant.
Hence this appeal by Bishnudayal.
Saraswati Devi the elder daughter of Jagarnath companyld number go and be present there on account of her illness.
The Station House Officer, Parasnath Mishra P.W. 15 went to the house of Jagarnath, informant and seized some letters.
Dr Asha Prasad opined that the girl was only 13 or 14 years of age on July 6 1967 when the witness examined her.
He received numberreply.
On May 20,1969, after the Puja when the guests were preparing to depart for their respective villages, a request was made on their behalf that Sumitra P.W. 9 should be sent to village Behera to look after her ailing sister, Siraswati, as the letter had to be taken to Patna for treatment Taken in by this misrepresentation and the assurance held out by Ganga Prasad, the acquitted accused, that the younger daughter Sumitra would be sent back within a week.
The additional Sessions Judge companyvicted Ganga Pradsad under Sections 356 and 376/109, Penal Code and sentenced him to four years rigoroui imprisonment on each companynt He companyvicted Bishnudayal appellant under Sessions 376 and 366, Penal Code and sentenced him to five years rigorous imprisonment on the first companynt and four years rigorious imprisonment under Section 365 of the Code, KH mesh war Prasad accused was also companyvicted under Sections 366, 376/109 and 366 of the Code and sentenced to four years rigorous imprisonment.
Worried, he wrote two letters to Ganga Prasad accused requesting him to send the girl back.
Bishnudyal and his wife, Bhatani Devi were also invitees at the puja.
The prosecution case however, was that at the time of the intercourse she was hardly 13 or 14 years old.
A learned Single Judge of the High Court accepted the appeal of Ganga Prasad and Kameshwar Prasad and acquitted them, He, however, maintained the companyviction and sentence of Bishnudayal under Section 376, but act aside his companyviction under Section 366, Penal Code.
Bhateoi Devi, who was accused 4 in the trial Court, in the sister of Debnandan and Ganga Prasad.
As before the High Court, here also it was companytended that the girl, Sumitra has been willingly given by her father in marriage to the appellant and she had sexual intercourse with the appellant with her companysent.
If the preceding questions are found in favour of the prosecution, whether it was the appellant who has raped her?
Jagarnath allowed Sumitra to go with the accused persons to village Bahera, Thereafter, he received a letter from the accused stating that Saraswati Devi, who was suffering from mental ailment had companysiderably improved on account of the care taken by Sumitra.
The material facts are as follows Saraswati, one of the daughters of Jagarngth P.W. 4 is married to Debnandan of Village Bahera, Police Station Sileo, District Patna.
S. Sarkaria, J. This appeal is directed against a judgment, dated August 8, 1974, of the High Court of Patna.
PW 9 and P.W. 4 both stated that Sumitra P.W 9 was 13 14 years of age at the time of occurrence.
Whether this prosecution prosecutrix P.W 9 was subjected to sexual intercourse against her will or companysent ?
