IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.469 of 2015
Arising Out of PS.Case No. -89 Year- 2013 Thana -BANMANKHI District- PURNIA
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1. Mritunjay Kumar Mandal Son of Brahmdeo Mandal, Resident of Village-
Harpatti, Police Station- Banmankhi, District- Purnea.
…. …. Appellant/s
Versus
1. The State of Bihar
…. …. Respondent/s
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Appearance :
For the Appellant/s : Mr. Uday Chand Prasad, Advocate Mr. Manoj Kumar, Advocate For the Respondent/s : Mr. Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 04-04-2017
Appellant, Mritunjay Kumar Mandal has been
found guilty for an offence punishable under Sections 376 IPC and
sentenced to undergo RI for 10 years and fine of Rs. 10,000/- in
default thereof, to undergo imprisonment of two years additionally by
the 2nd Additional Sessions Judge, Purnea vide judgment of conviction
dated 24.06.2015 order of sentence dated 26.06.2015 in Sessions Trial
No. 885/2013/119/2014.
2. Manorama Devi, (PW 5) filed a written report on
09.06.2013 alleging inter alia that she had gone to her Naiher to visit
her ailing mother on 06.06.2013 leaving behind her two daughters.
When she returned back on 08.06.2013, her younger daughter (name
withheld) aged about seven years disclosed that yesterday, while she
was returning after easing herself, Mritunjay Kumar Mandal lifted her
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to bamboo cluster where he committed sin act. Whenever, she used to
weep, her mouth was thrust with leaves. This occurrence had taken
place on 07.06.2013 at about 3-4 PM. So, she alleged that her co-
villager, Mritunjay Kumar Mandal had committed rape upon her.
Panchyati was convened by the villagers having no solution, on the
other hand, Mritunjay Kumar Mandal was threatening.
3. On the basis of the aforesaid written report,
Banmankhi PS Case No. 84/2013 under Section 376 of the IPC was
registered followed with investigation and after concluding the same,
the charge-sheet was submitted under Section 376 IPC whereunder
cognizance was also taken and accordingly, trial proceeded which
ultimately concluded in the manner, subject matter of the instant
appeal.
4. Defence case, as is evident from the mode of
cross-examination as well as statement under Section 313 of the
CrPC, is that of complete denial of the occurrence and further of false
implication.
5. In order to substantiate its case, the prosecution
had examined altogether 8 PWs out of whom PW-1 is Raju Patel,
PW-2 is Anil Ram, PW-3 is Priyanka Kumari, PW-4 is the victim
(name withheld), PW-5 is Manorama Devi, PW-6 is Dr. Shikha
Priyadarshi, PW-7 is Krishna Pd. Singh, and PW-8 is Nitish Kumar @
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Rajiv Kumar. Side by side, had also exhibited Ext-1, written report in
the pen of Raju Patel (PW-1), Ext-2, Medical Report, Ext-3, Formal
FIR, Ext-4, endorsement over written report. As stated above, nothing
has been adduced in defence.
6. PW-6 is the doctor who had examined the victim
on 10.06.2013 at about 1:00 PM and found the following:-
Hymen seems ruptured. Inflammation +++ at anal
operturn. (Redness, swelling). Bleeding is not there but the
location seems to be fresh. Vaginal– spermatozoa found.
Radiological age (389)– 5-6 years, so according to
above clinical finding and report there is evidence of sexual
assault on the girl and then is an evidence of forceful
penetration in the anal canal.
7. No absurdity has been found relating to finding
of the doctor. Consequent thereupon, commission of rape is found
exposed. However, the ocular evidence is to be seen whether the
witnesses have substantiated the same or not against the appellant.
8. From the written report, it is apparent that PW-5,
informant was not at all present at her house while the victim PW-4
was raped. Therefore, first of all the evidence of the victim, PW-4 is
to be seen.
9. During examination-in-chief, she had stated that
on the alleged date and time of occurrence, Mritunjay Kumar Mandal
lifted her and took her to bamboo cluster where she was undressed
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and in likewise manner, Mritunjay also undressed himself. She was
forced to lie down and then he pounced upon her and committed the
sin. She began to weep whereupon, he assaulted her. He shut her
mouth with leaves. Then thereafter, he rushed therefrom. She came at
her house where she narrated the incident to his sister, Priyanka.
Priyanka had also seen her pant and washed. Then she slept. She
identified the accused in the dock. During cross-examination, she had
stated that accused had concealed his face at the time of lifting her and
so, she failed to identify him. In likewise manner, she had stated that
she could not identify the rapist at that very moment. She had further
stated that she had deposed whatever police had instructed. She had
further stated that she had identified the accused as he happens to be
her neighbour. She had further stated that Puja had pointed out
towards Mritunjay Kumar Mandal to her rapist.
10. PW-3 is Priyanka, her sister. She had completely
disowned with regard to the occurrence and on account thereof, she
was declared hostile, even then, prosecution could not be able to
extract anything favourable.
11. PW-5 is the informant. She had stated that when she
returned back from her Naiher, she came to know that her daughter
was raped by Mritunjay whereupon, she had gone to PS where written
report was scribed by Raju, her brother whereupon Raju and Rajiv
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also put their signatures. She had further stated that Prinyanka and the
villagers have narrated regarding the occurrence and further, Priyanka
had stated that when she (victim) returned back, she had washed away
her pant. She had identified the accused in the dock. During cross-
examination, she had stated that what Raju had scribed, she is not
aware. Police had also not narrated the application. Police had not
recorded her statement. What was written in the application, she does
not know. Furthermore, she had stated that she was not informed by
anybody regarding commission of rape upon her daughter. Who
committed rape, she does not know.
12. PW-2 also did not support the case of the prosecution
and on account thereof, was declared hostile.
13. PW-1 is Raju Patel who had stated that informant, his
sister called him at the police station where he came. His sister
Manorama had disclosed the incident before the police officials
whereupon, the police directed him to scribe. He scribed as per
direction of the police officer. In his presence, Manorama had put LTI
whereupon he also had signed. Also exhibited the same. He had not
identified the accused in the dock although was present. In cross-
examination, he had stated that his sister had arrived prior to his
arrival at the police station and so, he is unaware what kind of talk
was in between the police officer and his sister. When he reached at
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the police station, Manorama disclosed with regard to his identity as
her brother, whereupon the police officer directed him to take
dictation which he did. He had further stated that he had got no
information with regard to the occurrence.
14. PW-8 is another witness who had simply shown his
presence over the written report. He had not stated with regard to
occurrence.
15. PW-7 is the Investigating Officer. In his examination-
in-chief, he has stated that after registration of the case, he was
entrusted with the investigation by the O/C. He took statement of the
victim. Also recorded the statement of another daughter of the
informant as well as witnesses. Inspected the place of occurrence and
the objective finding relating thereto suggests commission of the
occurrence at that very place. The leaves were found there and the
place was found trampled. Further identified the place of occurrence
by specific boundary. Took the victim along with her mother for
medical examination. Received medical report and then thereafter,
after completing investigation, charge-sheet was submitted. During
cross-examination, he had stated that he had not seized apparel of the
victim nor he sent for chemical examination. He had not seized the
apparel of the accused. Accused was not medically examined. Apart
from deficiency of the Investigating Officer in terms of Section 53 A
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of the CrPC whereunder accused was also to be medically examined
being an accused of rape, no explanation has been offered at the end
of the Investigating Officer, PW-7. Although, from the medical
evidence, it is apparent that rape was committed over PW-4, the
victim and further, from the evidence of PW-7, the Investigating
Officer, the objective finding of the place of occurrence substantiates
the same but from the ocular evidence including that of PW-4, the
victim, it is apparent that they have, reason best known to them, not
come forward to substantiate.
16. From the judgment impugned, it is apparent that in
para-12, the learned lower court had concluded its finding but failed
to appreciate the conduct of the witnesses including that of victim
which they have shown during course of cross-examination. Evidence
means, examination-in-chief, cross-examination as well as re-
examination if any. That means to say, in a way to appreciate the
evidence, the examination-in-chief, cross-examination of a witness is
to be taken in its entirety and on the basis thereof, any kind of
inference could be gathered whether, the allegation as alleged has
been proved or not. Brushing aside, the cross-examination while
appreciating the evidence only on the basis of examination-in-chief is
not permissible in the eye of law. As stated above, the learned lower
court completely ignored the principle while appreciating the
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evidence, hence suffers from legal deficiency.
17. Consequent thereupon, the judgment of conviction and
sentence impugned is set aside. The instant appeal is allowed.
18. Since appellant is under custody, he is directed to be
released forthwith if not wanted in any other case.
(Aditya Kumar Trivedi, J) perwez AFR/NAFR AFR CAV DATE 20.03.2017 Uploading Date 04.04.2017 Transmission 04.04.2017 Date