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Nand Kishor Singh vs The State Of Bihar on 29 May, 2018

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

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