IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.609 of 2016
Arising Out of PS.Case No. -173 Year- 2012 Thana -JAGDISHPUR District- BHAGALPUR
1. Nand Kishor Singh son of Churaman Singh resident of Village- Barhari, P.S.
Goradih, District- Bhagalpur.
…. …. Appellant/s
Versus
1. The State of Bihar
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Praveen Kumar Agrawal, Advocate
For the Respondent/s : Mr. Abhay Kumar, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 29-05-2018
Appellant Nand Kishor Singh has been found guilty for an
offence punishable under Section 363 I.P.C and sentenced to undergo
R.I for 5 years as well as to pay fine of Rs.2000/- in default thereof, to
undergo SI for two months, additionally, under Section 366 I.P.C and
sentenced to undergo R.I for 5 years as well as to pay fine of
Rs.2,000/-, in default thereof, to undergo SI for two months,
additionally, under Section 376 I.P.C and sentenced to undergo R.I
for 7 years as well as to pay fine of Rs.5,000/- in default thereof, to
undergo SI for three months, additionally, with a further direction to
run the sentences concurrently vide judgment of conviction dated
27.06.2016 and order of sentence dated 28.06.2016 passed by the 1st
Additional District Sessions Judge, Bhagalpur, in Sessions Trial
No.978/2013.
2. Lal Bihari Mandal filed written report on 24.11.2012,
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 2
addressed to O/C, Gauradih, disclosing therein that Nand Kishor
Singh, who was engaged by him as an electrician, began to tease his
daughter PW-6 (name withheld) aged about 15 years, during course of
going/coming from school, whereupon his wife had scolded him. He
had threatened his wife that he will run away with his daughter. At
that very time, he was at Faridabad. When his wife informed him,
over which he came to his house on the occasion of Chhath. His
daughter, victim (name withheld), while had gone to school on
21.11.2012, kidnapped by the Nand Kishor Singh, who is himself
married and is a father of 3-4 children, with a bad intention or to get
himself married. He made hectic search, but could not succeed. He
had also mentioned mobile number of Nand Kishor Singh as
9631872870.
3. After registration of Jagdishpur (Gauradih), P.S Case
no.173/2012, investigation commenced and during course thereof, I.O
was informed regarding location of the victim at Ludhiyana, where
she was taken away by the accused and both of them have been taken
into custody by the Ludhiyana Police whereupon, the I.O had gone
there and brought both of them, victim was medically examined, her
statement under Section 164 Cr.P.C was recorded and then thereafter,
completing the investigation, charge-sheet was submitted facilitating
the trial meeting with ultimate result, subject matter of instant appeal.
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 3
4. Defence case as is evident from the statement
recorded under Section 313 Cr.P.C as well as mode of cross-
examination is conflicting one. At one instance, there happens to be
suggestion that victim had herself married with the appellant/accused
and had led happy marital life staying for 3-4 months with him and
then thereafter, under the duress of her family members got the
appellant involved, on the other hand, it has also been suggested that
while accused was engaged as mason during construction of house of
the informant, had heavy dues and only to digest the same, the
informant got this case filed projecting the victim. However, neither
oral nor documentary evidence has been adduced in defence.
5. In order to substantiate its case, prosecution had
examined altogether 9 PWs, who are PW-1, Gun Sagar Mandal, PW-
2, Ravi Devi, PW-3, Arjun Mandal, PW-4, Lal Bihari Mandal, PW-5,
Kavita Devi, PW-6, Victim, PW-7, Angad Kumar Singh, PW-8, Dr.
Sima Sinha and PW-9, Ramjee Prasad, I.O. Side by side, had also
exhibited the following documentary evidence i.e. Ext.1, signature of
informant over written report, Ext.1/1, endorsement over written
report, Ext.1/2, another endorsement over the written report, signature
of victim over statement recorded under Section 164 Cr.P.C, Ext.3,
medical report, Ext.4, formal FIR. As stated above, neither oral nor
documentary evidence has been adduced on behalf of the defence.
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 4
6. While assailing the judgment of conviction and
sentence, it has been submitted by the learned counsel for the
appellant that prosecution case as projected appears to be farce. To
substantiate the same, it has been submitted that FIR is ante-dated.
Written report was filed on 24.11.2012. Case was registered on
24.11.2012, but it had reached at the office of the CJM on 29.11.2012,
that means to say, beyond the period of 24 hours, casting doubt over
its authenticity. Furthermore, it has also been submitted that as per
evidence of PW-1 Gun Sagar Mandal, who happens to be the uncle of
the informant and was living at Ludhiyana, where victim alongwith
appellant is said to have been arrested by the Ludhiyana Police, had
stated that 2 and ½ days have covered in arrival at Bhagalpur from
Ludhiyana. As per evidence of PW-9, Ramjee Prasad, I.O, he had
gone to Ludhiyana on 05.12.2012, then in that event, there was no
possibility of the victim to be present before doctor on 08.12.2012. It
has also been submitted that although, there happens to be disclosure
that victim along with appellant was recovered at Ludhiyana, but is
not supported by a chit of paper. If the aforesaid eventuality is seen in
the background of delay in forwarding the FIR to the Court of CJM, it
has become crystal clear that the same happens to be ante-dated and
purposely been introduced to digest the due amount which the
informant carried as, appellant was engaged by him as a mason as
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 5
well as an electrician. In the aforesaid facts and circumstances of the
case, as well as taking into account the totality of the event, it is a fit
case wherein appellant should be acquitted.
7. Furthermore, it has also been submitted that this case
should be seen through another angle. From the evidence of PW-8,
Dr. Sima Sinha, only to help the prosecution she had opined that the
victim was below 18 years. Having fluctuation of two years plus-
minus, victim should be on the alleged date of occurrence below 20
years. So she was major. When her activity is perceived, it is apparent
that she had not raised alarm while going from the P.O village to
Ludhiyana through train and is indicative of the fact that she was a
consenting party. Not only this, while she was staying with the
appellant at Ludhiyana, she had not raised alarm, protested against
activity of the appellant and those things are sufficient to undo the
allegation so attributed at the end of the victim that she was kidnapped
or she was not a consenting party. In the aforesaid facts and
circumstances of the case, appellant could not be held liable for
kidnapping of the victim and in likewise manner, to be a rapist.
8. On the other hand, it has been submitted at the end of
the learned APP that from the statement recorded under Section 313
of the Cr.P.C, it is evident that at one stroke, appellant had admitted
presence of victim along with him, but failed to suggest that she was
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 6
major. On the other hand, appellant had also taken a plea that as
prosecution party borrowed dues while procured service of appellant
whereupon appellant had been implicated by way of alleging that he
had eloped with the victim and in the aforesaid background, when the
evidence of PW-6, victim is gone through it is apparent that appellant
had not been able to stake or diminish credibility of her evidence.
That being so, appellant has rightly been convicted and sentenced.
9. From the material available on the record, it is
evident that none of the witnesses have claimed to have seen the
victim being kidnapped at the end of the appellant. Though, the
previous conduct of the appellant had been detailed, disappearance of
the victim since 21.11.2012 had also been disclosed and on account
thereof, having been vigorously searched out but failed to trace her
out and then, disclosure by the PW-1, Gun Sagar Mandal, that he had
seen the victim during course of search at Ludhiyana as the basis of
information furnished by his brother, informant whereupon,
Ludhiyana Police was informed who came, apprehended both of
them, kept Nand Kishor Singh (appellant) at local Hajat, while victim
was let off on the personal bond of PW-1 and then arrival of the local
police personnel and then, carrying both of them, is found duly
exposed along with the fact that from the lower Court ordersheet
dated 08.12.2012, it is evident that appellant was produced before the
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 7
Court of the CJM. It is further evident that the evidence of the
witnesses, more particularly that of , PW-2, Ravi Devi, PW-3, Arjun
Mandal, PW-4, Lal Bihari Mandal, PW-5, Kavita Devi and PW-7,
Angad Kumar Singh, relating to kidnapping as well as rape having
commited at the end of the appellant is found based upon disclosure
having been made by the victim (PW-6). So, the evidence of PW-1,
Gun Sagar Mandal, PW-6, Victim, PW-8, Dr. Sima Sinha and PW-9,
Ramjee Prasad, I.O, have got primacy.
10. PW-1, Gun Sagar Mandal had deposed that the
occurrence is of about 10 years ago. He was working at Ludhiyana.
He got information from his brother that Nand Kishor had taken away
his niece and he had an information that they are at Ludhiyana.
Probable location was given by his brother, whereupon he had gone
and seen his niece. Then, he informed the police. Police came and
apprehended Nand Kishor and his niece. Then, thereafter, the police
of Gauradih, Bhagalpur, came to Ludhiyana and took away both of
them. Identified the accused. During cross-examination at para-2, he
had stated that he is not remembering the exact date on which he
received information from his brother. He disclosed his SIM number,
but could not divulge the SIM number of his brother. Then, at para-4,
had stated that he is not remembering on which date he had seen his
niece along with the accused. In para-5, he had stated that firstly he
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 8
had located his niece and then police was informed. Police came after
an hour and took them away. In para-6, he had stated that he along
with police personnel, niece and accused came to Bhagalpur. It
covered 2 ½ days. They got down from Punjab Mail at Kuil
Station. He is not remembering the exact date on which he reached at
Bhagalpur. He had denied the suggestion that he is not residing at
Ludhiyana and had deposed falsely. He had denied the suggestion that
his statement was not recorded by the police.
11. PW-6 is the victim. She had deposed that the
occurrence is of dated 21.11.2012. She proceeded to school from her
house at about 8:00 a.m. Nand Kishor met in the midst of way, who
made obscene talk whereupon, she disclosed the event to her mother
after returning from the school. Her mother scolded Nand Kishor over
mobile, whereupon Nand Kishor threatened that he will lift her
daughter. He also threatened that he will kill all of them by shooting.
Her mother became afraid of over aforesaid threatening. She intimated
to her father, who was at Faridabad. He rushed from Faridabad. On
the fateful date, she during course of returning from school had stayed
at Kotwali Chowk and had gone to stationary shop to purchase some
articles and thereafter, while she came over the road, Nand Kishor
came from behind, gagged her mouth, lifted her and took her inside a
tempo and then to Naugachiya and then to Ludhiyana, where,
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 9
confined her in a room, where he committed rape on her.
Subsequently, he put vermillion. His uncle Gun Sagar, who was
staying at Ludhiyana, since before was informed by her father
regarding the misfortune and further probable place where she might
had been confined by the accused, her uncle came and after locating,
informed the police, whereupon police apprehended Nand Kishor as
well as she was also recovered from his clutch. They both were kept
at police station. Then, thereafter, his father along with police, lady
police, came and took them away. Nand Kishor was sent to jail while
she was medically examined and then, her statement was recorded
under Section 164 Cr.P.C. Identified the accused.
12. During cross-examination, at para-9, she had
admitted that accused Nand Kishor was engaged as mason for
construction of her house. Then, there happens to be cross-
examination from para-10 to para-14 with regard to places from where
students were coming to the school, timing of the school, whether she
had any friend or not. In para-15, she had stated that on the alleged
date and time of occurrence as she stayed at Kotwali Chowk to
purchase the articles on account thereof, her friend proceeded ahead.
She had further stated that she had purchased one pen and copy, but is
unable to disclosed the name of the shop. In para-17, she had stated
that tempo was parked at some distance from the shop. In para-18, she
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 10
had stated that at that very time only one tempo was there, wherein
she was lifted by the accused Nand Kishor, after gagging her mouth
and on account thereof, she could not see its registration number. She
had further stated that her face was wrapped on account thereof, she
could not see whether the driver was an old or a young fellow. At that
very time, 2-3 more persons sat inside the tempo. In para-19, she had
stated that during course of statement before the police, she had stated
that apart from Nand Kishor, 2-3 unknown persons also sat. In para-
20, she had stated that tempo proceeded towards the Jagdishpur, but
she is unable to say whether village Hatt is being organized at
Jagdishpur and in likewise manner whether Durga Puja festival was
being organized there. Then, said that she is unable to disclose the
exact time at which hour the tempo arrived at Jagdishpur. Then was
taken to Bhagalpur and then to Naugachiya. She is unable to disclose
the exact time. In para-25, she had stated that she was taken to
Ludhiyana from Naugachiya by train. They boarded the train outside
station premises. She is unable to disclose whether it was a dark night
or a moonlit night. Then, had said it was a goods train. It had not
stopped anywhere. She after spending whole night, whole day, whole
night and then at 8:00 am reached at Ludhiyana. In para-26, she had
stated that she remained hungry for two days. She used to go to
lavatory. Then at para-27, she had stated that she is unable to disclose
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 11
the exact time consumed from station to the place of accused. In para-
28 she had stated that she is unable to disclose how many rooms were
there where she was kept, but large number of rooms were there. She
was kept in a room occupied by Nand Kishor. Others, who also came,
gone to their own place. His uncle had not come to meet with her. In
para-29, she had stated that Ludhiyana police had recovered her from
the room of Nand Kishor. She is unable to say the name of police
station where she was kept. She remained there whole night and
whole day. Nand Kishor was also there. At that very time, no paper
was prepared relating to them. Subsequently thereof, the police of
Bhagalpur came at that police station and then, she along with Nand
Kishor were taken to Bhagalpur. Her father was also along with the
police. She is not remembering the train. She is not remembering at
which station she got down. From station they came to Gauradih. In
para-30 she had stated that whatever been stated by her in the Court
was based upon the incident which she faced. She had denied to have
stated before the police that accused had married with her in a temple.
She was medically exercised at Mayaganj Hospital. She had denied
the suggestion that she had made the statement before the police that
Nand Kishor married with her at the temple. Then, at para-34 she had
denied the suggestion that she was neither kidnapped nor raped. As
her parents borrowed his dues on account of work done by the Nand
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 12
Kishor, so only to digest that amount, this case has been falsely filed
wherein she had deposed falsely.
13. PW-8, Dr. Sima Sinha, who had examined the
victim on 08.12.2012 at Sadar Hospital, Bhagalpur. During course of
examination, she had not found any kind of injury over her body
including over her private part. However, had found hymen old
ruptured. In the aforesaid background, she had opined that there
happens to be absence of evidence of recent intercourse though
previous indulgence is found. Furthermore, she had opined the age of
the victim to be less than 18 years. During cross-examination she had
categorically stated that victim would not be above the age of 16
years.
14. PW-9, Ramjee Prasad, is the Investigating
Officer. He had deposed that on 24.11.2012, he was S.I at Gauradih
P.S, on which date, after registration of the case, on the written report
of Lal Bihari Mandal, he was entrusted with the investigation of
Jagdishpur (Gauradih), P.S Case no.173/2012, (exhibited all
concerned documents). Recorded further statement of the informant,
statements of the other witnesses, inspected the place of occurrence.
Recorded statements of other witnesses, procured birth certificate.
Recovered victim along with the accused Nand Kishor Singh from
Ludhiyana. Both were interrogated. Victim was examined under
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 13
Section 164 Cr.P.C. She was medically examined and then, after
concluding the investigation submitted the charge-sheet. During
cross-examination at para-3, he had stated that he had not verified the
birth certificate from the school. He had not recorded statement of
Khusbu and Anju, who had accompanied the victim to the school
from the village. In para-5 6, he had stated that he proceeded to
Ludhiyana on 05.12.2012, reached at 06.12.2012 and then returned
back along with the victim and accused, but he had not mentioned in
the case diary by which train he had gone there and in likewise
manner returned therefrom. He had not taken the statement of the
doctor regarding the age of the victim. Then had denied the
suggestion that investigation happens to be cryptic one.
15. The other witnesses as found are not eye
witnesses to occurrence, rather they came to know about the same
during course of search of the victim and further, with regard to
kidnapping, rape on the disclosure made by the victim which the
victim had corroborated.
16. Although, there happens to be absence at the end
of the accused/appellant during course of cross-examination of PW-6,
victim, on the score that during course of transit as well as staying at
Ludhiyana whether she had raised alarm for her rescue, protested
against evil design of the accused. On the other hand, she on her own
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 14
had not disclosed that she had ever resisted. Furthermore, though with
regard to the activity of accused at an earlier occasion whereunder he
had teased her and being scolded, on that very score threatened but,
during course of kidnapping, there happens to be no discloser at her
end that she was threatened or on the pretext of fire arm or any other
event prejudicial to her interest or interest of her family, she was taken
away to Ludhiyana and, during course of stay, she was locked or
forbade to meet with others, more particularly in the background of
disclosure having at her end that there were so many rooms (para-28).
So her conduct speaks otherwise.
17. In the aforesaid background, when the activity of
the appellant has been perceived, it is evident that he had not
challenged that he along with victim was not arrested from
Ludhiyana. Though, learned counsel for the appellant had challenged
on that very score that it was not possible in the background of
evidence of PW-1, Gun Sagar Mandal, but he had not claimed the
victim to be major coupled with the fact that he had not accepted
during course of suggestion given to the victim that being major, she
was a consenting party and joined hands with him voluntarily.
Moreover, during course of statement under Section 313 Cr.P.C, he
took one of the grounds apart from other that she married with him
about 3 months ago. The evidence of doctor during course of cross-
Patna High Court CR. APP (SJ) No.609 of 2016 dt.29-05-2018 15
examination appears to be more assertive with regard to minority of
the victim.
18. Giving proper evaluation of the evidences
available on the record, it is found and held that prosecution has been
able to substantiate its case for the offences punishable under Sections
363 I.P.C as well as 376 I.P.C. Considering the evidence of the
victim, no offence under Section 366 I.P.C is made out, whereupon is
set aside. Because of the fact that the minimum sentence has been
prescribed against the appellant by the learned lower Court on account
thereof, the same is affirmed. That being so, the instant appeal is
found merit-less and is accordingly dismissed.
19. Appellant is under custody, which he will
remain till saturation of the sentences.
(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 01/06/2018
Transmission 01/06/2018
Date