Gauri Shankar Mandal vs The State Of Bihar on 28 July, 2017

Patna High Court CR. APP (SJ) No.959 of 2017 1


Criminal Appeal (SJ) No.959 of 2017
Arising out of P.S. Case No. -15 Year- 2012 Thana -BHIMPUR District- SUPAUL

Gauri Shankar Mandal, son of Yagindra Mandal, resident of Village + P.S.-
Bhimpur, District-Supaul.

…. …. Appellant/s
The State of Bihar

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Rakesh Kumar Jha-Advocate
For the Respondent/s : Mr. S. A. Ahmad-A.P.P.

Date: 28 -07-2017

Sole appellant Gauri Shankar Mandal has been found

guilty for an offence punishable under Section 376 of the I.P.C. and

directed to undergo rigorous imprisonment for seven years and to pay

fine appertaining to Rs.10,000/- and in default thereof, to undergo

imprisonment for six months, additionally, vide judgment of

conviction dated 17.02.2017 and order of sentence dated 23.02.2017

passed by the Additional Sessions Judge-1st, Supaul in Sessions Trial

No.01 of 2014.

2. Shanti Devi (PW-4) filed written report alleging inter

alia that his daughter (name withheld being victim) was married with

Jeytish Paswan of village-Ghurna about four years ago.

Unfortunately, she became partial insane whereupon she was deserted

by her sasuralwala. Since then, she was staying with her. Her
Patna High Court CR. APP (SJ) No.959 of 2017 2

neighbour Yogendra Mandal has got rice mill, flour mill as well as

grocery shop. Her daughter used to visit his shop for grinding wheat,

purchase of household items and during course thereof, Gauri Shankar

Mandal began to allure her and after assuring that he will marry with

her, developed physical intimacy and continued it for the last one year

as a result of which, her daughter became pregnant. After perceiving

her abnormal physical appearance, she made query, whereupon

detailed the event. Then thereafter, they had gone to the place of Gauri

Shankar Mandal where Gauri Shankar Mandal, his brother Sanjay

Mandal, Hare Ram Mandal, father Yogendra Mandal and mother Jithi

Devi abused them as well as they also chased to assault.

3. After registration of Bhimpur P.S. Case No.15 of

2012, investigation taken up and after completing the same,

chargesheet was submitted paving the way for trial before the Court of

Sessions wherefrom, vide the judgment impugned, others were

acquitted. However, finding of guilt followed with sentence has been

recorded against the appellant, subject matter of instant appeal.

4. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 of the

Cr.P.C. is that of complete denial of the occurrence. Furthermore, it

has been pleaded that this case has been filed with ulterior motive in

order to satisfy their personal grudge, vendetta as well as out of

political rivalries in the background of the fact that Nani (maternal
Patna High Court CR. APP (SJ) No.959 of 2017 3

grandmother) of the victim namely Gulabi Devi had fought Mukhiya

Election against Jiwachhi Devi, mother of the appellant. However,

neither oral nor the documentary evidence has been adduced on his


5. In order to substantiate its case, prosecution had

examined altogether eight PWs, out of whom, PW-1 Shambhu

Mandal, PW-2 Bablu Paswan, PW-3 Jagdish Paswan, PW-4 Shanti

Devi, PW-5 Shyam Sundar Paswan, PW-6 Rambha Devi, PW-7 Dr.

Reeta Singh and PW-8 Jitendra Kumar. Side by side, had also

exhibited the document as Exhibit-1 injury report, Exhibit-2 (wrongly

mentioned as Exhibit-1) endorsement over the written report.

6. During course of hearing of this appeal, it has been

found that with regard to status of the victim, there happens to be

initial version regarding her mental status that she happens to be

partial insane and on account thereof, she was deserted from her

sasural. To search out the positive evidence on that very score, L.C.

Record has properly been scrutinized. After perusal of the same, it is

evident that though in the judgment impugned, there happens to be

reference of mental condition of the victim duly acknowledged by the

Court to be mentally retarded, but on that very score, neither the Court

on its own recorded demeanor of the witness, PW-6 (victim) as

prescribed under Section 280 of the Cr.P.C. nor during course of

evidence of doctor (PW-7), the learned lower Court by way of
Patna High Court CR. APP (SJ) No.959 of 2017 4

exercising its extra-ordinary power in accordance with Section 165 of

the Evidence Act questioned over the mental state of the victim, PW-

6. Furthermore, it is also evident that before examination of PW-6, the

Court also failed to enquire with regard to mental state of the victim,

although her appearance on the first day was completely blanked

which is apparent from the deposition form whereupon, an

adjournment was granted. To appreciate the same, her statement under

Section 164 of the Cr.P.C. available on the record has also been gone

through and the same exposes the event of hallucination on account of

being contrary to the narration as flashed by PW-4, though

substantiated the factum of rape (poses gangrape).

7. Accordingly, with the aid of Section 118 of the

Evidence Act whereunder identification, status of a witness is found

duly acknowledgeable, save and except, in exceptional cases

including being lunatic. In the aforesaid facts and circumstances,

learned counsel for the appellant as well as learned Additional Public

Prosecutor have been requested to assist the Court properly to arrive

at just conclusion. During course thereof, three questions have been

put forward:-

a) So for trial of an insane accused is concerned, the trial is to be

held up, till he suffers from insanity whether such opportunity is available to a

witness deffering her/ his examination till having been properly cured from

mental ailment.

Patna High Court CR. APP (SJ) No.959 of 2017 5

b) Whether the evidence be outrightly rejected identifying the

mental infirmity irrespective of status of the witness.

c) Whether trial court be directed to record evidence of victim

after her medical examination ascertaining mental state .

8. The learned counsel for the appellant made two fold

argument, the first one relates with proprietary of the evidence of the

victim (PW-6) and submitted that though there happens to be some

sort of lapses at the end of the learned lower Court on that very score,

in properly appreciating whether PW-6 (victim) was suffering from

insanity at the time of her evidence, though she on first day shown

unusual activity whereupon, the case was adjourned and so, as per

principle laid down in Kanhaiyalal Sewaram, Appellant v. State

reported in A.I.R. 1953 Madhya Bharat 262, it has been submitted

that the evidence of victim (PW-6) is liable to be rejected and for that,

referred Para-4 thereof, which reads as follows:-

―(4) Out of the two witnesses, Madhva, P.W. 16

was not produced before the learned Sessions

Court. His statement in the committing Court had

been transferred to the Sessions file under S. 33,

Evidence Act. It is well settled that before the

Sessions Judge can transfer a statement he must

record a finding that any of the circumstances

enumerated in S.33 existed and unless he is so

satisfied on evidence led before him, the power

vested in him under S.33 cannot be exercised.-
Patna High Court CR. APP (SJ) No.959 of 2017 6

‗Saudagar Singh v. Emperor’, AIR 1944 Lah

377(A). When a witness is material (in this case

the eye witness Madhva was a material witness)

justice requires that the witness, if possible, be

examined in the trial in the presence of the

accused. The learned Sessions Judge has

admitted the evidence of an absent witness on

the application of the Public Prosecutor, and the

application alleged that something had gone

wrong with the mind of the witness Madhva and

that he was not in a condition that he may answer

the questions correctly in the Court. A report of

the Assistant Medical Officer Shujalpur was also

submitted to the Court along with the

application. This report dated 7-10-1952 that

after some days’ observations in the Hospital,

full report could be sent. During these days, the

learned Sessions Judge was recording the

evidence in the case and he could have easily

seen the eye-witness himself when he was at

Shajapur, in order to satisfy himself whether he

was competent to testify and could understand

the questions put to him. The explanation

appended to S. 118, Evidence Act is quite clear

on the point that a lunatic when he is in lucid

intervals is not incompetent to testify, if he can

understand and rationally answer the questions
Patna High Court CR. APP (SJ) No.959 of 2017 7

put to him. The Doctor could have been, but was

not examined in the Court. The Police constable

Kanhaiyalal P.W.15 and P.W.3 Bhanwarji were

procured in the Court and as lay men they said

―his mind had gone wrong‖. This may mean


The learned Judge did not care to arrive at the

finding whether it was a case of general or

partial insanity, whether the delusions were

multifarious and of the wildest and most

irrational character, abundantly indicating that

the mind was diseased throughout or, while the

mind may have been overpowered by delusions,

though may be the offspring of mental disease

and so far constituted insanity, yet left the

individual in all other respects rational and

capable of transacting the ordinary affairs and

fulfilling the duties and obligations incidental to

the various relations of life, and, during lucid

intervals, the witness was not prevented by

partial unsoundness of the mind from

understanding the questions put to him and

giving rational answers to them. From a perusal

of the judgment of the learned Sessions Judge, it

appears, though not clearly, that the learned

Judge was of opinion that the witness was

incapable of giving evidence because of insanity.
Patna High Court CR. APP (SJ) No.959 of 2017 8

In such cases the provisions of S.118 could not

have been ignored, and in my opinion, where a

witness is declared incapable of giving evidence

owing to insanity it is the duty of the Court to

record its finding that the witness is prevented by

his lunacy from understanding the questions put

to him and giving rational answers to them. The

fact that the witness had become incompetent to

testify and so incapable of giving evidence must

be proved strictly. As their Lordships observed in

-Chainchal Singh v. Empress’, AIR 1946 PC 1

(B) in a civil case a party, if he chooses, can

waive the proof, but in a criminal case strict

proof ought to be given that the witness is

incapable of giving evidence. Their Lordships

further observed that the fact that the counsel of

the accused consented to the evidence of the

witness being read under S.33 in the Sessions

Court does not do away with the necessity of the

Court being satisfied by proof that the witness

was incapable of giving evidence.

In my opinion the learned Sessions Judge was

wrong in admitting the evidence of Madhva P.W.

16 under S.33, Evidence Act, without himself

seeing the witness or without examining the

doctor who had sent the report to the Public

Prosecutor. It is clear that sufficient foundation
Patna High Court CR. APP (SJ) No.959 of 2017 9

was not laid for the reception of the previous

deposition of Madhya in this case and I have

therefore to exclude it from consideration.‖

9. Also referred Rana Ranjeet Singh vs. the United

India Insurance Co. Ltd. Ors. reported in 2015(3) P.L.J.R. 305

(High Court), but this judgment is not going to help the appellant on

that very score.

10. The second leg of argument is that the trial Court be

directed to get the victim examined by the doctor and after being

satisfied, she be re-examined, and for that, after setting aside the

judgment impugned, matter be remitted to the learned lower Court.

11. At the other hand, the learned Additional Public

Prosecutor submitted that as the learned lower Court acted contrary to

law on account thereof, the matter be remitted back to the learned

lower Court after setting aside the judgment impugned to proceed

afresh with regard to PW-6, the victim with a further direction to get

her examined by a medical board headed by Civil Surgeon himself,

who will report the matter and thereupon, the Court will pass

necessary order to the effect whether her evidence is to be recorded or

not and if so, be directed to record evidence afresh, hear the parties,

pass judgment in accordance of law.

12. Without adverting to merit of the case, after going

through the L.C. Record, hearing the parties, the first and foremost
Patna High Court CR. APP (SJ) No.959 of 2017 10

question relates with legality, admissibility of the evidence of PW-6,

the victim and further, the subsequent event to be followed. From the

written report itself, it is evident that the victim, who was married

much earlier, was deserted by her sasuralwala on account of becoming

partial insane and thereupon, she was staying at the place of her


13. Although, there happens to be special provision

prescribed for trial relating to insane, lunatic, accused under the

Criminal Procedure Code, properly identifiable under Chapter-XXV,

but so far status of witness/ victim is concerned, there happens to be

no such provision available under the Criminal Procedure Code

guiding the affair. Furthermore, under the Evidence Act, Section 118

permits all the persons to be competent witness unless he/ she is

forbidden by any legal deficiency or on account of being lunatic. That

means to say, the witness being lunatic would not be allowed to

depose as, did not stand to the test till he is cured, or during the

intervening period where under the witness is found out of grip of

lunar effect. However, no such provision is found relating to insane,

category of witness. That means to say, the Court has to perceive

whether on account of being lunatic, the witness is unable to proper

understanding. In likewise manner, when Section 375 of the I.P.C. is

being considered, it is evident that consent which the victim was

incompetent to give on account of unsoundness of mind would not be
Patna High Court CR. APP (SJ) No.959 of 2017 11

a valid consent. For better appreciation, Section 118 of the Evidence

Act as well as Section 375 of the I.P.C. is quoted below:-

118 Who may testify. –All persons shall be

competent to testify unless the Court

considers that they are prevented from

understanding the questions put to them, or

from giving rational answers to those

questions, by tender years, extreme old age,

disease, whether of body or mind, or any

other cause of the same kind. Explanation.–

A lunatic is not incompetent to testify, unless

he is prevented by his lunacy from

understanding the questions put to him and

giving rational answers to them.

1[375. Rape.–A man is said to commit

―rape‖ who, except in the case hereinafter

excepted, has sexual intercourse with a

woman under circumstances falling under

any of the six following descriptions:–

(First) — Against her will.

(Secondly) –Without her consent.

(Thirdly) — With her consent, when her

consent has been obtained by putting her or

any person in whom she is interested in fear

of death or of hurt.

(Fourthly) –With her consent, when the
Patna High Court CR. APP (SJ) No.959 of 2017 12

man knows that he is not her husband, and

that her consent is given because she

believes that he is another man to whom she

is or believes herself to be lawfully married.

(Fifthly) — With her consent, when, at the

time of giving such consent, by reason of

unsoundness of mind or intoxication or the

administration by him personally or through

another of any stupefying or unwholesome

substance, she is unable to understand the

nature and consequences of that to which

she gives consent.

(Sixthly) — With or without her consent,

when she is under sixteen years of age.

Explanation.–Penetration is sufficient to

constitute the sexual intercourse necessary

to the offence of rape.

(Exception) –Sexual intercourse by a man

with his own wife, the wife not being under

fifteen years of age, is not rape.] STATE


(Manipur) –(a) in clause sixthly, for the

word ―sixteen‖ substitute the word

―fourteen‖; and

(b) in the Exception, for the word ―fifteen‖

substitute the word ―thirteen‖. [Vide Act 30

of 1950, sec. 3 (w.e.f. 16-4-1950) (made
Patna High Court CR. APP (SJ) No.959 of 2017 13

earlier than Act 43 of 1983)]. COMMENTS

Absence of injury on male organ of accused

Where a prosecutrix is a minor girl suffering

from pain due to ruptured hymen and

bleeding vagina depicts same, minor

contradictions in her statements they are not

of much value, also absence of any injury on

male organ of accused is no valid ground

for innocence of accused, conviction under

section 375 I.P.C. proper; Mohd. Zuber

Noor Mohammed Changwadia v. State of

Gujarat, 1999 Cr LJ 3419 (Guj).

Penetration Mere absence of spermatozoa

cannot cast a doubt on the correctness of the

prosecution case; Prithi Chand v. State of

Himachal Pradesh, (1989) Cr LJ 841: AIR

1989 SC 702.

14. The learned lower Court as is evident had not taken

recourse to record demeanor of the victim as prescribed under Section

280 of the Cr.P.C. which could have enable the Court to perceive the

mental condition of the victim. Irrespective of the fact that till then the

material which was available on the record by way of written report

whereunder desertion by sasuralwala of the victm was duly

incorporated on account of partial insanity. The learned lower Court

failed to acknowledge and further, did not care to see the behavioral
Patna High Court CR. APP (SJ) No.959 of 2017 14

attitude of the victim, when she firstly stood before the Court as PW-

6, who was completely obtund on the first day of her presentation,

whereupon adjournment was granted. It is also apparent from the L.C.

Record that there happens to be slackness at the end of the

Investigating Officer in getting the victim medically examined over

her mental condition, which was known since before and that happens

to be reason behind that the doctor, a gynecologist, who deposed as

PW-7 had not spoken a word on that very score. This happens to be a

crucial aspect as a consent of the victim which was unfit to assent on

account of unsoundness of mind, which has been duly acknowledged

under Section 375 of the I.P.C. could have proper application which

the judgment impugned snickly dealt with.

15. Insanity as well as lunacy is two different events.

Section 118 of the Evidence Act deals with lunacy and not insanity.

Lunacy happens to be intermediary in nature, while insanity is not.

Insanity may be of different kinds, which has been properly identified

under Modi Medical Jurisprudence Toxicology. So, the question

now remains to be answered is, being layman, the rustic illiterate

villagers are not in a position to identify as well as bifurcate the

aforesaid two kinds of mental disorder. That being so, its impact over

admissibility of evidence, if the witness is being examined, is to be

properly adjudicated upon, and further, the activity of the Court

before recording of evidence relating to the particular witness have
Patna High Court CR. APP (SJ) No.959 of 2017 15

also to be pin-pointed. In likewise manner, whether the trial Court

should wait till witness is cured likewise the status of an accused so

prescribed under Chapter-XXV, in case, witness is found insane. This

issue happens to be of great importance as well as will have vast

impact over trial and further, the matter still not been properly taken

up and decided in its conclusiveness on account thereof, needs to be

answered by way of authoritative pronouncement and so, that matter

is referred to Division Bench.

16. Accordingly, office is directed to place the matter

before Hon’ble the Chief Justice.

(Aditya Kumar Trivedi, J)

CAV DATE 13.07.2017
Uploading Date 28.07.2017
Transmission 28.07.2017

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