Raudi Mandal vs The State Of Bihar on 30 August, 2017

Patna High Court CR. APP (SJ) No.322 of 2014 dt.30-08-2017
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IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.322 of 2014
Arising Out of PS.Case No. -136 Year- 2010 Thana -BELA District- SITAMARHI

1. Raudi Mandal Son of Late Bithu Mandal R/o village- Bliswa, P.S.- Bela,
District- Sitamarhi

…. …. Appellant/s
Versus

1. The State of Bihar

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Animesh Kumar Mishra, Amicus Curiae
For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
C.A.V JUDGMENT
Date: -08-2017

This appeal has been preferred by the appellant against the

judgment dated 4th April 2014 and order of sentence dated 10.04.2014

passed by Sri Prabhu Nath Singh, 1st Additional Sessions Judge,

Sitamarhi, in S.T. No. 22/11/199/13, whereby the appellant was

convicted for the offence punishable under Sections 376(2)(g) and

366(A) of the Indian Penal Code and was sentenced to undergo

rigorous imprisonment of ten years under each Section with a fine of

Rs. 25,000/- and 5,000/- respectively and in default of payment of

fine, rigorous imprisonment for one year.

Brief facts necessary for adjudication of present appeal are that

a written report was filed on behalf of P.W. 3, Rajkumar Sah stating

therein inter alia that the appellant and other two accused persons had
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kidnapped his minor daughter, namely, Pooja Kumari and kept her in

the village Matihani (Nepal) and she was recovered with the help of

Nepal Police and villagers and she was brought back to her house and,

thereafter, a panchayati was held, in which, the informant came to

know from other villagers that the appellant and accused persons were

engaged in the business of human trafficking as they used to kidnap

the children and sell them.

On the basis of above written report Bela P.S. Case No. 136 of

2010 under Section 365 and 366(A) of the Indian Penal Code was

registered against the appellant and other accused persons and the

police after investigation submitted charge-sheet against the appellant

and investigation against the other two accused persons, namely,

Pramod Paswan and Hari Paswan was kept pending. Cognizance of

the offence was taken and, thereafter, the case was committed to the

court of sessions, which ultimately traveled to the file of learned Sri

Prabhu Nath Singh, 1st Additional Sessions Judge, Sitamarhi, for trial

and disposal.

Charges were framed under Section 363, 366 and 376(2)(g) of

Indian Penal Code against the appellant.

In this case altogether eight witnesses have been examined from

the side of the prosecution and they are: P.W. 1- Ashok Sah (uncle of

the victim girl), P.W. 2- Usha Devi (mother of the victim girl), P.W.

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3-Raj Kumar Sah, (informant and father of the victim girl), P.W. 4-

Pooja Kumari (Victim of the present case), P.W. 5 – Md. Abbas Khan

(investigating officer of the case), P.W. 6 – Santosh Kumar (cousin

brother of the victim girl), P.W. 7- Ramji Sah and P.W. 8 – Doctor

Bibha Kumari Jha, who examined the victim girl.

Apart from the above, following documents have been admitted

into evidence and marked as ; Ext. 1 – written petition, Ext. 2-

Signature of victim Pooja Kumari on the written report, Ext. 3-

endorsement on written report, Ext. 4 – formal F.I.R, Ext. 5-

requisition for medical examination of the victim girl, Ext. 6 –

Medical report of victim girl.

It appears from perusal of the records that neither any oral nor

any documentary evidence has been adduced on behalf of the defence

and it appears from the suggestion given to the witnesses and his

statement under Section 313 Cr.P.C, the defence of the appellant is of

false implication and complete denial of the alleged occurrence and of

innocence.

Learned Trial Court after conclusion of trial convicted the

appellant under Section 376(2)(g) and 366(A) and sentenced him as

stated above.

Aggrieved by the said judgment, the appellant preferred the

present appeal.

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At the time of argument, nobody appeared on behalf of the

appellant and as such Mr. Animesh Kumar Mishra, has been

appointed amicus curiae to assist the court.

Learned amicus curiae has assailed the judgment on the ground

that in this case, there is delay in lodging of the F.I.R as according to

informant himself, the girl was kidnapped and later on was recovered

on 26.07.2010, but the F.I.R was lodged on 31.07.2010 i.e. after lapse

of five days and no plausible explanation has been offered for the

same. Further submission of learned amicus curiae is that according

to P.W. 3, informant, and other witnesses that the prosecutirx/victim

girl was recovered from the Nepal at Village Matihani with the help

of local police and villagers but neither any witness of the said village

nor the Nepal police has been examined in this case, which creates a

serious doubt on the prosecution story. It has also been submitted that

at the time of recovery only accused Pramod Paswan along with

victim girl was present there, whereas, the appellant has been arrested

from his house and evidence of witnesses show that house of the

appellant is situated just after one house of the informant and,

therefore, the prosecution story that the appellant along with others

kidnapped her and committed rape upon her, does not appear to be

probable especially when the evidence has come that the appellant is

older than the informant and has grand daughters and grandsons.

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Further submission is that the medical report also does not support

the prosecution story of rape, as no sign of rape was found on the

person of the victim girl and her age in the medical examination was

assessed as seventeen years plus minus two years and, therefore, the

girl was not minor at the time of alleged occurrence. Further

submission of learned amicus curiae is that in this case in earliest

story of prosecution ( F.I.R), there was no allegation of rape on the

victim girl either by the appellant or by the other accused persons,

though F.I.R has been lodged after lapse of five days of her recovery

and even the charge-sheet has been submitted only under Section 365

and 366 of Indian Penal Code but later on during trial, the victim girl

as well as witnesses came out with a story of gang rape, which

appears to be an afterthought to make the offence serious and the

learned trial court without considering all these facts have convicted

the appellant under Section 376(2)(g) and 366(A) of Indian Penal

Code, which shows that learned Trial Court has not appreciated all the

materials available on record and convicted the appellant in most

mechanical way.

On the other hand, learned counsel for the State has argued that

there are cogent, consistent and reliable evidences available on record

to prove that the appellant and other two accused persons enticed

away the victim girl and took her to village Matihani (Nepal) and kept
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her there and committed rape on her one by one and, thereafter, she

was recovered from there along with other co-accused Pramod

Paswan. It has further been submitted that even though the medical

evidence did not support the case of prosecution with regard to rape,

however, in the case under Section 376 Indian Penal Code, the

conviction can be based on sole testimony of the prosecutrix, even if

the same is not corroborated by the medical evidence, if otherwise, the

same is found reliable and free from any embellishment. Hence the

conviction of appellant under Section 376 (2)(g) and 366(A) are just

and proper and the same does not require any interference.

On the above background, let me examine the ocular evidence

as well as other evidences available on record.

P.W. 3, Rajkumar Sah, is the informant and father of the victim

girl and his evidence in chief disclosed that, he found his daughter

traceless and on enquiry, he came to know that appellant and co-

accused Pramod Paswan and Hari Paswan has taken her away and,

thereafter, he went on search for his daughter to their houses, but they

all were not present at their houses. His evidence also shows that he

came to know that his daughter was kept in village Matihani (Nepal)

and then he along with Santosh (nephew) and Ashok (brother) went to

Matihani after two days of occurrence and with the help of Nepal

Police recovered the victim girl – Pooja Kumari, where co-accused
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Pramod Paswan was also present. His evidence also disclosed that his

daughter Pooja Kumari revealed him that appellant and other co-

accused persons have committed rape on her one by one. His evidence

further disclosed that thereafter, he also got a panchayati held but

appellant was not ready to participate in the said panchyati and in the

said panchayati, he came to know that appellant and other accused

person were engaged in the business of human trafficking as they used

to kidnap the children and used to sell them. This witness has been

cross-examined and in his cross-examination, he has stated about the

recovery of the girl from village Matihani (Nepal). In para -6 of his

cross-examination, this witness has admitted that appellant is older

than him and has grandsons and granddaughters. A suggestion was

also given to this witness that there was love affair between the victim

girl and co-accused Pramod Paswan and the same was disclosed to

him but he denied the said suggestion.

P.W. 2, is the mother of victim girl and she has also supported

the prosecution case and stated that in course of search, the victim girl

was recovered from village Matihani (Nepal) and the victim girl

disclosed about the commission of rape by appellant and other two

accused persons. Her cross-examination in para -4 also shows that

house of the appellant is just after one house of the informant. Her

evidence also shows that appellant was arrested from his house and
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she has also supported the prosecution story of holding of panchayati

with regard to the occurrence.

P.W. 1, is the uncle of the victim girl, and he has also supported

the prosecution case. He has also stated in his evidence that he saw

the appellant and other two accused persons, taking the victim girl

with thems, however, the same appears to be an improvement as had

it been in knowledge of this witness, he ought to have disclosed the

same to the father and mother of the victim girl but neither the F.I.R.

nor the evidence of P.W. 2 and 3, who are mother and father of the

victim girl show that he disclosed this fact to them. Further this

witness has stated about the recovery of victim girl from the village

Matihani (Nepal) with the help of police and accused Pramod Paswan

was also apprehended there. However, this witness has also supported

the prosecution story of kidnapping of the victim girl.

P.W. 4 is the victim girl in this case and she has stated that

appellant had called her to his house and when she went there Pramod

Paswan and Hari Paswan was also present there, who administered

some intoxicated drink, thereafter, she became unconscious and when

she regained consciousness, found herself in village Matihani (Nepal)

in the house of sister of co-accused Pramod Paswan. She further

stated about commission of rape on her by appellant and Pramod

Paswan and Hari Paswan one by one and her recovery was made with
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the help of Nepal police. She further stated that she disclosed about

everything to her father. Her attention was drawn towards her earlier

statement made before the police in para -4 to show that she has not

disclosed about the administering of intoxicated drink to her and after

that she became unconscious and also about the commission of rape

by appellant and other two accused persons. Her evidence further

disclosed that she remained in the house of sister of Pramod Paswan

for five to six days. She has also stated about the Panchayati in her

cross-examination.

P.W. 6 Santosh Kumar is the cousin brother of the victim girl,

and he has stated in his evidence about the recovery of girl from

village Matihani and also supported about the Panchayati. He has also

disclosed that with the help of Nepal police the victim girl was

recovered.

P.W. 7 is a witness, who has prepared written report on the

instruction of the informant and except that there is nothing important

in his evidence.

P.W. 8, is the Doctor Bibha Kumari, who has examined the

victim girl and her evidence shows that on examination she found that

there was no trauma or injury on the person of the victim girl. Her

evidence further shows that vaginal swab was taken and on

examination of vaginal swab no spermatozoa was found. She further
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stated that on examination, it cannot be said that whether rape has

been committed on her or not and the age of the girl was assessed as

17 years. Further in her cross -examination she has stated that the age

of girl around seventeen years means plus minus two years and further

stated that hymen may be ruptured, other than due to sexual

intercourse.

P.W. 5 is the Investigating Officer of this case and he has stated

that he has recorded the statement of the witnesses and victim girl and

got her examined by the Doctor. In his cross examination, he has

stated that he has not recorded the statement of victim girl under

Section 164 Cr.P.C. before the Magistrate. Further he has denied a

suggestion that the same has not been done as the victim girl was not

ready to support the prosecution case. In his cross -examination,

attention of this witness has been drawn towards the statement of the

witnesses during the investigation and he has stated that none of the

witnesses has stated about the gang rape on victim girl – Pooja

Kumari and the witness Pooja Kumari has stated Hari Paswan and

appellant Raudi Mandal were also with the co-accused Pramod

Paswan and Pramod Paswan committed rape on her. Further his

evidence in cross – examination also shows that witness Usha Devi

and Rajkumar Sah has not stated about the commission of rape on the

victim girl by the appellant and other two accused persons.

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Considering the entire discussions made above it appears that

so far prosecution case of kidnapping is concerned, there are cogent,

consistent and reliable prosecution evidence available on record that

the victim girl was kidnapped by the appellant and other accused

persons and was recovered from Nepal. From the evidence of P.W. -8,

Doctor, it appears that age of girl at the time of alleged occurrence

was assessed as seventeen years and evidence of Doctor in cross

examination shows that seventeen years means plus and minus two

years. In such a situation Hon’ble Apex Court in the case of Deelip

Singh @ Dilip Kumar Vs. State of Bihar reported in [ AIR 2005 SC

2003] has observed that in such a situation, the defence is entitled to

rely on the higher side of the age given by the Doctor, which shows

that the girl is aged about more than eighteen years of age and hence

the prosecution story that the girl was minor and was aged about 12

years, does not appear to be true. Prosecution evidence also shows

that a Panchayati was also held and the same found corroboration

from F.I.R (ext. 4), which bears the signatures of villagers in

Panchayati along with FIR. No doubt the witness of Panchayati other

than the family members have not been examined except P.W. 7, in

whose writing, written report was prepared. P.W. 7, in his cross

examination has admitted that witnesses have put their signatures on

the papers as a social initiative.

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On the other hand, defence has tried to show that whole

prosecution story is absurd and improbable on the ground of

inordinate delay of five days in lodging the F.I.R and conduct of

family, as even in spite of the fact that family members were aware

that their daughter was traceless, they neither approached the

Panchayat nor reported the matter to police rather they sat quietly till

recovery of the girl and even after recovery they waited for five to six

days to lodge the F.I.R, which clearly appears to be an afterthought.

However, the submission of learned counsel for the defence cannot be

acceded to as generally in the cases of sexual offence, family

members of victim are hesitant to disclose the true facts to others or to

the police as the prestige and reputation of family especially of victim

girl is involved and there are cases also in which the victim or his

family members may choose to suffer the ignominy rather than to

disclose the true fact, which may cause stigma for the rest of their

lives. As such in a case of abduction and rape, even if initial hesitation

of the prosecutrix or her family members to disclose the true facts

may cause delay in lodging the F.I.R. but on the ground of delay in

lodging the F.I.R, the entire prosecution story cannot be brushed aside

especially when there are other cogent and reliable materials available

on record and when the plausible explanation for delay has been

given. In the present case, it is the case of prosecution that informant
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and others had first gone for panchayati and as the appellant and other

accused persons were not agreeing to participate in the said

Panchayati, then the informant and others lodged the case. Thus in the

present case, the explanation given by the prosecution appears to be

probable, in the facts and circumstances as discussed above.

Further submission of learned counsel for the defence is of false

implication in this case due to village politics as he is a person having

grandsons and granddaughters and he is older in age than the father of

the victim girl and it is not expected from such person to be involved

in kidnapping and human trafficking and also involved in committing

gang rape. Moreover, there is nothing available to suggest that the

appellant had kidnapped the girl to sell her.

Prosecution evidence shows that appellant is older in age that

father of the victim and having grandsons and granddaughters but at

the same time as discussed above, there are cogent consistent and

reliable evidences available on record to show that appellant and

others had kidnapped the victim girl and in spite of cross-examination

of the prosecution witnesses, there is nothing to doubt the above

consistent evidence. Even there is nothing available on record to

suggest his false implication in this case. Hence, the prosecution

evidence is impeccable and unrebuted. Prosecution evidence except

the statement of the informant also shows that appellant and other
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accused persons were engaged in human trafficking, however, there

is absolutely nothing available on record to show as to whether any

case was earlier lodged or there was any evidence showing any talk

with regard to sale and purchase of victim girl. Except the information

supplied by others that appellant and other were engaged in business

of human trafficking, there is no evidence available on record. Section

366 and 366(A) of Indian Penal Code deals with kidnapping,

abduction to compel her marriage and procuration of minor girl

respectively, which reads as follows:-

366. Kidnapping, abducting or inducing woman
to compel her marriage, etc.–Whoever kidnaps or
abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be
compelled, to marry any person against her will, or in
order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be
forced or seduced to illicit intercourse, shall be punished
with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to
fine; 1[and whoever, by means of criminal intimidation
as defined in this Code or of abuse of authority or any
other method of compulsion, induces any woman to go
from any place with intent that she may be, or knowing
that it is likely that she will be, forced or seduced to
illicit intercourse with another person shall be
punishable as aforesaid].

366A. Procuration of minor girl.–Whoever, by any
means whatsoever, induces any minor girl under the age
of eighteen years to go from any place or to do any act
with intent that such girl may be, or knowing that it is
likely that she will be, forced or seduced to illicit
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intercourse with another person shall be punishable
with imprisonment which may extend to ten years, and
shall also be liable to fine.].

At the same time, Section 365 of Indian Penal Code provides
that:-

“365. Kidnapping or abducting with intent secretly and
wrongfully to confine person. – whoever kidnaps or
abducts any person with intent to cause that person to be
secretly and wrongfully confined, shall be punished with
imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.”

So far story of commission of rape by the appellant on the

victim girl, is concerned, there was no such story in the earliest

version of the informant (P.W. 3) in written report and F.I.R (Ext. 1

4) and charge-sheet was also not submitted under Section 376 of

the Indian Penal Code nor medical evidence supports the same,

however during trial witnesses have developed the story of rape.

Considering the fact that F.I.R has been lodged after lapse of five days

of recovery of girl and a panchayati was also held and in such a

situation not mentioning about commission of gang rape by appellant

and others in the F.I.R, casts a serious doubt on the prosecution

evidence with regard to commission of gang rape and that appear to

be an afterthought in order to make the allegations graver. Apart from

that Investigating Officer has also stated that none of the witnesses

have stated about the commission of gang rape on the victim girl. He
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has also stated that P.W. 4- Pooja Kumari has stated about

commission of rape by Pramod Paswan Further the doctor (P.W. 8)

has also not found any sign of rape on the victim girl. I am well aware

that the Hon’ble Supreme Court in catena of its decisions has held that

in a case under Section 376 conviction can be based on the sole

testimony of the prosecutrix, if it is otherwise found free from doubt

or any embellishment as it depends on various circumstances such as

the girl being habitual of sexual intercourse, secondly, no force was

used by the girl and other circumstance. It is also held that the

evidence of prosecutrix is considered to be on better footing than that

of injured person and she cannot be compared with an accomplice. At

the same time, it is also well established that the evidence of

prosecutrix has to be considered in totality and only when it inspire

confidence and free from any embellishment, conviction can be based

on sole testimony of victim girl. However in the present case as I

have discussed above P.W. Pooja Kumari is the only eye-witness of

rape and there was no story of gang rape in the F.I.R and medical

report also negates the factum of rape. In such a situation relying on

the prosecution evidence of kidnapping and commission of rape does

not inspire confidence and it does not appear to be reliable and

believable. P.W. 4- Pooja Kumari, as well as her family members are

rustic, poor villagers and illiterate also and in a society like present
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one, there is tendency of exaggerating the allegations and there is also

tendency amongst villagers and even the urban people to keep

themselves aloof, from happening in society, they do not come

forward to become witness of an occurrence. In such a situation,

responsibilities of court increases and instead of throwing out the

whole case on the ground of omissions, development and

inconsistencies, the court has to separate the truth amongst them that

is called separating grains from chaffs. As I have discussed above,

there is consistent and unrebuted evidence available on record to show

that appellant and others kidnapped the victim girl and P.W. 7, who is

a villager has stated that villagers had put their signatures as social

initiative that proves the factum of kidnapping and abduction.

However, conviction of appellant relying on the sole evidence of P.W.

4 of rape by appellant in absence of any such story in F.I.R (Ext. 4)

and evidence of Investigating Officer (P.W. 5) that none of the

witnesses have stated about the commission of rape on the victim girl

as well as the evidence of Investigating Officer that P.W. 4 has stated

about rape by the co-accused Pramod Paswan. Further even the

evidence of doctor (P.W. 8) and medical report does not support the

same.

It has also been argued by the appellant that though it is the

prosecution case that she was recovered with the help of Nepal Police
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and villagers but neither they had been examined in this case nor

anything is available on record to show that their statements had ever

been recorded by the police. Even the police has not got the statement

of the victim girl recorded under Section 164 Cr.P.C. So far above

contention of learned amicus curiae, appearing on behalf of the

appellant is concerned, it is also well settled that for the latches on the

part of Investigating Officer, the otherwise reliable and cogent

evidenced cannot be doubted, as investigation is not under control of

the victim or her family members.

Considering the entire discussions made above so far

conviction of appellant under Section 376(2)(g) and 366A is

concerned, that does not appear to be sustainable in the eye of law as

the evidence discussed above, clearly shows that the victim girl does

not appear to be minor rather appears to be major and further

prosecution story of rape is also not sustainable. However, the

evidence shows that the appellant along with others kidnapped the

victim girl and took her to Nepal from where, she was recovered.

Hence there are sufficient cogent and unrebuted evidence under

Section 365 of the Indian Penal Code is available against the appellant

and Section 365 Indian Penal Code is a minor offence of Section

366A of Indian Penal Code and Section 464 of Cr.P.C. provides that

no finding, sentence or order by a Court of competent jurisdiction
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shall be deemed invalid merely on the ground that no charge was

framed or on the ground of any error, omission or irregularity in the

charge including any misjoinder of charges, unless, in the opinion of

the Court of appeal, confirmation or revision, a failure of justice has

in fact been occasioned thereby. Further in the present case charge has

been framed against the appellant for kidnapping of the victim for

which he has been provided a chance to cross examine witnesses also.

Section 365 Indian Penal Code also provides punishment for

kidnapping or abducting with intent to secretly and wrongfully

confine person, as such no prejudice will be caused to the appellant if

the conviction of appellant under Section 366A be modified to

conviction under Section 365 of the Indian Penal Code, which is a

lesser offence carrying lesser punishment.

Considering the entire discussions made above, the conviction

and sentence of appellant under Section 376(2)((g) is set aside and the

conviction and sentence of appellant under Section 366A is modified

to conviction under Section 365 of Indian Penal Code and sentence of

R.I. of ten years is also reduced to the period already undergone by

the appellant in judicial custody as he has remained in judicial custody

for four years.

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Accordingly, with the above modification in sentence, this

appeal is disposed of.

(Vinod Kumar Sinha, J)

sunil/-

AFR/NAFR AFR
CAV DATE 09.08.2017
Uploading Date 04.09.2017
Transmission 04.09.2017
Date

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