Patna High Court CR. APP (SJ) No.959 of 2017 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
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
Versus
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.
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
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
behalf.
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 7put 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
nothing.
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 8In 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
Naihar.
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 12man 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
AMENDMENT
(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 13earlier 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)
Vikash/-
AFR/NAFR A.F.R.
CAV DATE 13.07.2017
Uploading Date 28.07.2017
Transmission 28.07.2017
Date