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Mritunjay Kumar Mandal vs The State Of Bihar on 4 April, 2017

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
===========================================================

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
===========================================================
Appearance :

       For the Appellant/s     : Mr. Uday Chand Prasad, Advocate
                                   Mr. Manoj Kumar, Advocate
       For the Respondent/s    : Mr. Bipin Kumar, APP

===========================================================
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
2

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 @
3

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
4

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
5

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
6

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
7

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
8

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
 

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