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Nitya Nand Mandal vs The State Of Bihar on 6 November, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.381 of 2016
Arising Out of PS. Case No.-129 Year-2012 Thana- KASBA District- Purnia

Nitya Nand Mandal Son of Rajdeo Mandal, Resident of village- Renugaon
Renu Gram Orahi, Police Station- Simraha, District- Araria.

… … Appellant/s
Versus
The State Of Bihar

… … Respondent/s

with
CRIMINAL APPEAL (SJ) No. 258 of 2016
Arising Out of PS. Case No.-129 Year-2012 Thana- KASBA District- Purnia

1. Kunia Mandal S/o Rajdeo Mandal resident of village – Ranugawn Orahi
Pashim, Taruna Basti, P.S. Simraha, District – Araria.

2. Awdhesh Mandal S/o Bachan Mandal resident of village – Renugawn Orahi
Pashim, Taruna Basti, P.S. – Simraha, District – Araria.

… … Appellant/s
Versus
The State Of Bihar

… … Respondent/s

with
CRIMINAL APPEAL (SJ) No. 443 of 2016
Arising Out of PS. Case No.-129 Year-2012 Thana- KASBA District- Purnia

Turai Mandal @ Shiv Narain Mandal son of Late Sukhdeo Mandal resident of
village Sarachiya, P.S. Kasba District Purnia.

… … Appellant/s
Versus
The State Of Bihar

… … Respondent/s

Appearance :

(In CRIMINAL APPEAL (SJ) No. 381 of 2016)
For the Appellant/s : Mr.Abhijeet Gautam, Adv.

For the Respondent/s : Mr. S. A. Ahmad, APP
(In CRIMINAL APPEAL (SJ) No. 258 of 2016)
For the Appellant/s : Mr. Bhola Prasad, Adv.
For the Respondent/s : Mr.Binod Bihari, APP
For the informant : Mr. Radha Mohan Singh, Adv.
(In CRIMINAL APPEAL (SJ) No. 443 of 2016)

Patna High Court CR. APP (SJ) No.381 of 2016
2/11

For the Appellant/s : Mr.Kamal Kishore Jha, Adv.
For the Respondent/s : Mr. Zeyaul Hoda, APP
For the informant : Mr. Radha Mohan Singh, Adv.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT

06-11-2019 Before coming to main track, certain incidents

falling in between have to be noticed and the same is being

incorporated below.

2. On the written report of one Shatrudhan Das

with regard to kidnapping of his minor daughter (name

withheld), Kasba PS Case No. 129/2012 was registered and,

after completing investigation, first charge-sheet was submitted

against Nitya Nand Mandal (appellant of Criminal Appeal (SJ)

No. 381 of 2016), keeping investigation pending against others,

who faced Sessions Trial No. 121/2013, convicted and

sentenced, after having his case bifurcated. .

3. Some of the remaining accused were

apprehended against whom supplementary charge-sheet was

submitted namely, Turai Mandal @ Shiv Narain Mandal,

(appellant of Criminal Appeal (SJ) No. 443 of 2016), who faced

Sessions Trial No. 805/2013 and got convicted sentenced,

keeping investigation pending against others.

4. Another supplementary charge-sheet has been

submitted against Kunia Mandal and Awdhesh Mandal,

(appellants of Criminal Appeal (SJ) No. 258 of 2016) keeping
Patna High Court CR. APP (SJ) No.381 of 2016
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the investigation pending against remaining accused who faced

Sessions Case No. 1110/2014, convicted and sentenced.

5. All these three Sessions Trials, i.e. to say,

Sessions Trial Nos. 121/2013, 805/2013 and 1110/2014 earlier

were pending before different courts but, in due course of time

came up before the same court and, all the Sessions Trials have

been disposed of by the same court that means to say, by the 3 rd

Additional Sessions Judge, Purnia, Bihar vide judgment of

conviction dated 23.02.2016 and order of sentence dated

29.02.2016 whereby all the appellants have been found guilty

for the offences punishable under Sections 363, Section366A, Section370 of

the IPC and each one has been sentenced to undergo RI for

seven years and to pay fine of Rs. 35,000/- and in default

thereof, to undergo RI for one year, under Section 366A IPC, RI

for five years as well as fine of Rs. 25,000/- and in default

thereof, to undergo RI for a year additionally, under Section

363, Section370 IPC respectively, appellant, Nitya Nand Mandal has

further been found guilty for an offence punishable under

Section 376 IPC and sentenced to undergo RI for 10 years as

well as to pay fine of Rs. 50,000/- and in default thereof, to

undergo RI for a year, with a further direction to run the

sentences concurrently, with a further direction that the period
Patna High Court CR. APP (SJ) No.381 of 2016
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having undergone will be set off in accordance with Section 428

CrPC.

6. Because of the fact that the illegality,

mistakes having been committed at the end of the learned lower

court during course of sailing with all the three Sessions Trial,

will affect the finding so recorded by the learned lower court, on

account thereof, for better appreciation of the fact as well as law,

irrespective of the fact that all the three Sessions Trial referred

above, have been disposed of independently but on the same

day by the learned lower court, on account thereof, is being

disposed of by a common judgment.

7. As per written report filed by Shatrudhan Das

is that his daughter,victim (name withheld) became traceless one

day before Deepawali in the year 2011. They made hectic search

but in vain. They had gone to the police but failed to oblige

them so, no case was registered. It has also been disclosed that

on 16.08.2012, one Janak Mandal of Jalalgarh Block working at

Sonipat, Haryana informed him that his daughter (victim) is

engaged as a domestic help in a Kothi at Sector No. 15 of

Sonipat. It has further been disclosed at his end that she has

been sold out and after Eid, she will be handed over to her

purchaser. After receiving the information, he proceeded on
Patna High Court CR. APP (SJ) No.381 of 2016
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17.08.2012, reached at Sonipat on 19.08.2012, anyhow,

contacted Janak Mandal and with the help of SHO, Sonipat

Police Station, the victim was recovered from the house of

Nitya Nand Mandal, Sector 15 of Sonipat along with Nitya

Nand Mandal and they both were taken to police station. In the

evening, the victim was handed over to the informant who, on

query disclosed that on the fateful day, while she was coming to

home, a tempo stopped near her, over which, five persons were

sitting. Out of them, three persons put handkerchief on her

mouth, as a result of which, she became unconscious and then

she was lifted. After regaining some sense (semi consciousness)

she found herself at Katihar railway station surrounded by 5-6

person including a female. Thereafter, they all have taken her to

some unknown place where she was kept for four days and

during midst thereof, the victim could know about them. Then

thereafter, Nitya Nand Mandal, Mamta Devi wife of Nitya Nand

Mandal, Sanjit Mandal, Ranjit Mandal, Kunia Mandal, Awdhesh

Mandal, all of village-Henu Hangna Tarona Basti, PS-Simraha,

District-Araria took her to Sonipat on the day of Chhath and

kept her in a rented house at Sector No. 15 where she was

engaged in cooking food. She was forced to live along with

them. Then thereafter, she was engaged at a Kothi as a cook on
Patna High Court CR. APP (SJ) No.381 of 2016
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monthly emolument of Rs. 5000/-, and the money was being

received by Nitya Nand Mandal. After some time, Mamta Devi,

wife of Nitya Nand Mandal came to native place and, in her

absence, Nitya Nand Mandal used to commit rape with her

against her will and wish. In the month of Ramazan, 2012, a

Muslim fellow came and negotiated and finally on consideration

of Rs. 40,000/-, she was sold to that Muslim fellow who paid

the money but said that as month of Ramazan was going on,

therefore, he will carry the girl after Eid. During midst thereof,

she has been rescued by the police at the instance of informant.

8. The dark side of the present scenario is

evident from the written report itself which, annexed the copy of

the letter having addressed to District Magistrate-cum-

Chairman, Illegal Human Trafficking as well as Child Welfare

Committee. It is further evident from the annexure that victim

as well as her father (informant) was examined by the Child

Welfare Committee on 01.09.2012 and, the Child Welfare

Committee, Purnia had also addressed a letter to the District

Magistrate as well as that of Shatrughan Das (informant).

9. It is further evident that after registration of

Kasba PS Case No. 129/2012, investigation proceeded and

culminated in a manner as indicated hereinabove, while further
Patna High Court CR. APP (SJ) No.381 of 2016
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investigation is still pending against remaining accused.

10. Defence case as is evident from the mode of

cross-examination as well as statement recorded under Section

313 CrPC is that of complete denial. It has also been submitted

that victim was major, she on her own volition accompanied,

Nitya Nand, remained with him. After appearance of the

informant, she was emotionally blackmailed and then, instant

case has been registered.

11. Learned counsel for the respective appellants

have submitted that the finding recorded by the learned lower

court happens to be mechanical one, without considering the

intervening circumstances which completely dethrones the

prosecution case right from its inception.

12. In order to buttress such plea, it has been

argued that victim had travelled from Katihar Junction to

Sonipat without any hitch and hindrance by train. Had the

victim not been a consenting party, she had every opportunity to

resist, revolt and in that circumstance, it would not be possible

for the appellants including others to carry on with their activity

so alleged. In likewise manner, from the evidence of the victim,

it is abundantly clear that the Kothi where she used to visit, was

at a considerable distance, the Kothi where she was engaged,
Patna High Court CR. APP (SJ) No.381 of 2016
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had her presence alone, then in that event, was not being a

consenting party, would have taken recourse of at least with the

help of the land-lady as, it was not a one day affair rather

months together, and so, no offence is made out against the

appellants.

13. Learned APP repelling the points having

been raised on behalf of the appellants, has submitted that those

things are not at all relevant in the background of the status of

the victim to be minor and so, finding recorded by the learned

lower court, is fit to be confirmed.

14. Now the real picturization of the illegality

committed by the learned lower court is to be seen. While

Sessions Trial No. 121/2013 was sailing, the other two Sessions

Trial also came before the same court and, as is evident right

from the evidence of PW-3, the evidence of each of the witness

was photo copied and tagged with other remaining Sessions

Trial numbering as PW-3 of Sessions Trial No. 805/2013 and

PW-2 of Sessions Trial No. 1110/2014. In likewise manner,

deposition of PW-4 of Sessions Trial No. 121/2013 has been

photo copied and then tagged with Sessions Trial No. 805/2013

as PW-4 and Sessions Trial No. 1110/2014 as PW-5. Deposition

of PW-5 of Sessions Trial No. 121/2013 has been photo copied
Patna High Court CR. APP (SJ) No.381 of 2016
9/11

and tagged with Sessions Trial No. 805/2013 as PW-5 and

Sessions Trial No. 1110/2014 as PW-5, deposition of PW-6 of

Sessions Trial No. 121/2013 has been photo copied and tagged

with Sessions Trial No. 805/2013 as Serial No. PW-6,

deposition of PW-6 of Sessions Trial No. 121/2013 has been

photo copied and tagged with Sessions Trial No. 805/2013 as

PW-7and Sessions Trial No. 1110/2014 as PW-7.

15. Photo copies of exhibits have been procured

from Sessions Trial No. 121/2013 and tagged with the record of

relevant Sessions Trial No. 805/2013, 1110/2014. Though,

marking happen to be relating to Sessions Trial No. 121/2013.

Furthermore, the evidence of remaining witnesses have been

intermingled in between Sessions Trial No. 805/2013 as well as

Sessions Trial No. 1110/2014.

16. The procedure adopted by the learned lower

court during course of conduction of the trial happens to be

contrary to the spirit of law. Under Code of Criminal Procedure,

there happens to be no provision whereunder photo copy of

deposition of a witness could be used as an evidence relating to

supplementary case record rather, the witness has to be

examined independently relating to original records as well as

supplementary records. Apart from this, as per Section 273 of
Patna High Court CR. APP (SJ) No.381 of 2016
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the SectionCrPC, the evidence of the witness has to be recorded in

presence of the accused though there should not be physical

presence as, Section 317 CrPC as well as Section 205 of the

CrPC are there whereunder the accused may have his

appearance though his learned counsel but, with a caution that

during course of trial, he will not be in a position of raising

objection over identification as has been settled at rest by the

Hon’ble Apex Court in SectionBhaskar Industries Ltd. v. Bhiwani

Denim Apparels Ltd. reported in (2001) 7 SCC 401.

17. In accordance with Section 302 CrPC, the

accused is to be properly defended during course of conduction

of trial. From the successive deposition, the same theme is

found duly frustrated.

18. The use of photo copy of a document is only

permissible under the Civil Court Rules while reconstructing a

missing record by the order of the District Judge and not in

other circumstance. Photo copy of document is also not legally

permissible rather, the same is to be substituted through the

certified copy replacing the original. These systems are

prescribed under Civil Court Rules.

19. As is evident, as procedure adopted by the

learned lower court, during course of trial, is not at all found in
Patna High Court CR. APP (SJ) No.381 of 2016
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consonance with the procedure so prescribed under SectionCrPC and

that being so, all the judgments impugned, do not justify its

prevalence whereupon, the same is set aside. All the three

appeals are allowed. Matter is remitted back to the learned

lower court with a direction to proceed afresh in accordance

with law and for that, Superintendent of Police, Purnea is

directed to procure attendance of all the witnesses so that, the

trial be concluded at an earliest.

20. Appellants who are under custody, are

hereby, directed to be produced before the learned lower court

relating to concerned Sessions Trial. Office to transmit the lower

court records at once.

(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE 16.08.2019
Uploading Date 06-11-2019
Transmission Date 06-11-2019

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