MOHAN SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned Amicus Curiae and learned counsel for the State.

(2.) PROSECUTION case initiated on fardbeyan of Muneshwar Sah (P.W.6), informant of the case, in brief, is that his co-villager, this accused-appellant Mohan Sah was giving tuition to his children along with his sister (victim) aged about 16 years and time for teaching was varying from morning till evening, that was depending on convenience. On the day of occurrence, it is said that informant had gone to Patna to look after his ailing father. In the night on 11.5.2002 at about 8.30 pm., he came back his home from Patna and informed by family members that this accused-appellant Mohan Sah had taken away his sister either after alluring or enticing with a view to marrying or having illicit relation. He searched his sister hither and thither, to neighbours and to the house of Mohan Sah also but could not know whereabouts of his sister. Mohan Sah was also found absent. In course of investigation, victim recovered rather appeared, her statement under Sections 161 and 164 of the Cr. P.C. was recorded and section 376 of the I.P.C. also was added. She was medically examined by a team of Doctors on the point of her age and commitment of rape, if any.

(3.) AS discussed above prosecution and its witnesses are not constant on the point that victim's age was below 16 years at the time of the incident, same is 16 years in F.I.R. so, not acceptable. Now, opinion of Medical Board remains there which can be relied only. Report by the Medical Board is submitted in the case, is exhibited as 7/1. One of its member namely, Dr. Sushila Devi is examined in the case as P.W.8 and in conformity to the report she is stating victim's age 16 to 18 years. Difference of these two years is allowed by the Medical Jurisprudence and the age favouring the accused is to be accepted, so the age of the victim is accepted 18 years which has been ignored by the Trial Court.