IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.55 of 2014
Arising Out of PS.Case No. -1565 Year- 2001 Thana -COM PLAINT CASE District- ARRARIA
1. Raj Kumar Mandal S/O. – Late Mahanthu Mandal Resident Of Village –
Koshikapur, P.S. – Raniganj, District – Araria.
…. …. Appellant/s
Versus
1. The State Of Bihar
…. …. Respondent/s
with
Criminal Appeal (SJ) No. 101 of 2014
Arising Out of PS.Case No. -1565 Year- 2001 Thana -COM PLAINT CASE District- ARRARIA
1. Ramesh Mandal Son Of Shiv Narayan Mandal Resident Of Village-Koshakapur,
P.S.-Raniganj, District-Araria
2. Jhabru Mandal Son Of Ninu Mandal Resident Of Village-Koshakapur, P.S.-
Raniganj, District-Araria
3. Subodh Mandal Son Of Shiv Narayan Mandal Resident Of Village-Koshakapur,
P.S.-Raniganj, District-Araria
4. Shiv Narayan Mandal Son Of Ninu Mandal Resident Of Village-Koshakapur,
P.S.-Raniganj, District-Araria
… …. Appellant/s
Versus
1. The State Of Bihar
… …. Respondent/s
with
Criminal Appeal (SJ) No. 156 of 2014
Arising Out of PS.Case No. -1565 Year- 2001 Thana -COM PLAINT CASE District- ARRARIA
1. Manoj Kumar Mandal @ Manna Mandal Son Of Shiv Narayan Mandal Resident
Of Village – Koshakapur, P.S. – Raniganj, Dist – Araria
…. …. Appellant/s
Versus
1. The State Of Bihar
…. …. Respondent/s
Appearance :
(In CR. APP (SJ) No.55 of 2014)
For the Appellant/s : Mr. Anil Kumar Singh, Advocate
For the Respondent/s : Mr. S.A. Ahmad, APP
(In CR. APP (SJ) No.101 of 2014)
For the Appellant/s : Dr. Amrendra Kumar Singh, Advocate
Mr. Ramesh Kumar Singh, Advocate
Mr. Sanjay Kumar Singh, Advocate
For the Respondent/s : Mr. Z. Hoda, APP
(In CR. APP (SJ) No.156 of 2014)
For the Appellant/s : Dr. Amrendra Kumar Singh, Advocate
Mr. Ramesh Kumar Singh, Advocate
Mr. Sanjay Kumar Singh, Advocate
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018
2/13
For the Respondent/s : Mr. S.N. Prasad, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 22-05-2018
Cr. Appeal (SJ) No. 55 of 2014 wherein Raj Kumar
Mandal is the appellant, Cr. Appeal (SJ) No. 101 of 2014 wherein
Ramesh Mandal, Jhabru Mandal, Subodh Mandal, Shiv Narayan
Mandal are the appellants, Cr. Appeal (SJ) No. 156 of 2014 wherein
Manoj Kumar Mandal @ Manna Mandal is the appellant have been
heard conjointly and are being decided by a common judgment on
account of having arisen from the common judgment of conviction
dated 17.01.2014 and order of sentence dated 18.01.2014 passed by
the Ad hoc Additional Sessions Judge 4th, Arraria in Sessions Trial
No.737/2003.
2. Appellant Manoj Kumar Mandal @ Manna Mandal
has been found guilty for an offence punishable under Section 376
IPC and sentenced to undergo R.I. for ten years as well as to pay fine
of Rs.7,000/- in default thereof, to undergo SI for one year, under
Sections 493, 313 and 120-B of the IPC, whereunder independently
sentenced to undergo RI for 7 years as well as to pay fine of Rs.
5,000/- in default thereof, to undergo SI for 6 months, while
appellants Raj Kumar Mandal, Ramesh Mandal, Jhabru Mandal,
Subodh Mandal and Shiv Narayan Mandal have been found guilty for
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an offence punishable under Sections 313 of the IPC and 120-B of the
IPC and separately, independently 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 6 months with a further direction to run the sentences
concurrently.
3. Alleged victim (name withheld) filed a complaint
petition on 24.08.2001 against all the appellants showing the date of
occurrence from 27.01.2001 to 23.08.2001 divulging the fact that she
happens to be a minor girl. On the alleged date i.e. on 27.01.2001,
while she was coming from a field carrying bundle of grass over her
head and as soon as reached near bamboo cluster lying west to her
house, accused Manoj Mandal @ Manna Mandal on the point of fire
arm forced her to keep silence, dragged her inside bamboo cluster and
then committed rape. When she begun to weep, Manoj Mandal
consoled her that he will marry but, also threatened not to divulge
anybody otherwise she will be murdered. On account of fear as well
as prestige of herself along with her family, she had not disclosed the
event and taking advantageous position thereof, Manoj Mandal
whenever got an opportunity, consummated with her on the false
pretext of marriage. Once upon a time, while he was engaged in
copulation, was seen by her younger brother Ravindra Mandal,
whereupon, Manoj Mandal threatened to his life. In the aforesaid
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background, she also advised him not to disclose, who on account of
threat to life, kept mum. On account of prolonged copulation, she
became pregnant. She divulged the fact to Manoj, who assured her not
to worry as he will marry with her. Her mother perceiving the same,
enquired whereupon, she disclosed the event. Then thereafter, her
parents had gone to the place of accused Manoj Mandal, but they on
one pretext or other, delayed the matter. On the other hand, Manoj
Mandal gave some medicines and said that it happens to be good for
her health if it be taken by her and after administering the same, she
aborted. Even thereafter, she pressed for marriage which Manoj
Mandal declined and in the aforesaid background, Panchayati was
convened wherein the accused persons directed to pay Rs.50,000/- as
a dowry, on account of non-payment of the same, accused persons
declined to marry.
4. On the basis of the aforesaid complaint petition, an
enquiry under Section 202 CrPC was taken up and after concluding
the same, accused persons were summoned to face trial and after
whose appearance, the trial commenced and concluded in the manner
subject matter of these appeals.
5. Defence case as is evident from the mode of cross-
examination as well as statement recorded under Section 313 of the
Cr.P.C is that of complete denial. It has further been pleaded that the
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victim was a lady of easy virtue having illicit relationship with
Phoolchand Mandal, with whom she was subsequently married on
28.07.2001, but that marriage did not survive, whereupon, she was
deserted and in the aforesaid background, coerced the
appellant/accused, Manoj Mandal to marry which he refused and on
account thereof, in the background of land dispute got this case filed.
Defence had also examined 7 DWs who are D.W-1 Janardhan Thakur,
D.W-2 Khelanand Jha, D.W-3 Parmeshwar Sah, D.W-4 Birahani
Devi, D.W-5 Sahdeo Das, D.W-6 Rakesh Kumar Mandal and D.W-7
Bidyanand Choupal.
6. In order to substantiate its case, the prosecution
had examined altogether nine witnesses who are P.W-1 Dinesh
Mandal, P.W-2 Rabindra Kumar Mandal, P.W-3 Sadanand Mandal,
P.W-4 Singheswar Mandal, P.W-5 Satya Narayan Mandal, P.W-6
Damodar Mandal, P.W-7 Deo Narayan Mandal, P.W-8 Dinesh Yadav
and P.W-9 Sushil Kumar Jha. Side by side, had also exhibited Ext.1,
Complaint petition, Ex.2 C.C of S.A. of complainant.
7. While assailing the judgment of conviction and
sentence, learned counsel for the appellants have submitted that none
is an eyewitness and that being so, on account of non examination of
the victim, prosecution has got no leg to stand. Accordingly, the
finding having been recorded by the learned lower Court appears to be
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unreasonable and is fit to be set-aside. It has further been submitted
that prosecution case is to be bifurcated in three parts as per
allegations so attributed. The first part happens to be commission of
rape and further, indulgence in copulation out of free will under the
banner of promise at the end of appellant, Manoj Mandal. The second
part happens to be after becoming pregnant and divulgence of the
aforesaid fact to Manoj Mandal, he provided some medicines and
abetted by instructing victim to consume which she swallowed
leading to abortion and the third event with regard to denial of the
family members to acknowledge and accept the victim by way of
facilitating solemnization of marriage in between the victim with
Manoj Mandal. Admittedly, at first two incidents, the remaining
appellants that means to say, Raj Kumar Mandal, Ramesh Mandal,
Jhabru Mandal, Subodh Mandal and Shiv Narayan Mandal have got
no presence and so far, third incident is concerned, it suffered from
vagueness. That being so, the cases of these appellants are quite
separable, whereupon, could not be convicted under Section 313 IPC
as well as 120B IPC.
8. With regard to appellant Manoj Kumar Mandal, it
has been submitted that no one had seen the activity whatsoever been
alleged against him. The status of all the witnesses happens to be
hearsay which is inadmissible in the eye of law, more particularly, in
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the background of the fact that victim has not been examined. Even
though, by way of examination of PW-7, Deo Narayan Mandal, a
theme has been introduced with regard to the death of the victim but,
as the cause of death is not under the prosecution, on account thereof,
her evidence, that means to say, the S.A. (Ex.-2) is not at all legally
entertainable. Hence, no case is made out against the appellant Manoj
Kumar Mandal @ Manna Mandal and so, the conviction and sentence
recorded against him appears to be illegal, cryptic and so, is fit to be
set aside.
9. On the other hand, the learned APP while
supporting the findings recorded by the learned lower Court, has
submitted that examination of DWs and the facts coming out
therefrom is indicative of the fact that the victim, a minor was
improperly tackled at the end of the accused persons whereupon, the
finding recorded by the learned lower Court is fit to be affirmed.
10. From the suggestion having been given to the
respective witnesses to the effect that victim had developed illicit
relationship with one Phoolchand coupled with other instance that
they got married and then having been deserted by the aforesaid
Phoolchand and examining the DWs on that very score who had
stated that they both solemnized love marriage, actually, under the
garb of aforesaid theme had questioned over the character of victim
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and the same is found non permissible in the eye of law as provided
under Section 53-A of the Evidence Act.
11. So far remaining appellants than appellant Manoj
Kumar Mandal @ Manna Mandal are concerned, it is apparent that
they not at all been shown under mainstream rather their appearance
happen to be in ancillary way, whereunder they have been shown to
have declined to resolve during course of Panchayati on the pretext of
asking for fulfillment of Rs.50,000/- as dowry and the vagueness
surrounded on the very score, did not inspires confidence coupled
with the fact that they have not been alleged to have abetted the
offence of abortion whereupon, the findings recorded by the learned
lower Court relating to them, are set aside. Consequent thereupon, Cr.
Appeal (SJ) Nos.55/2014 as well as 101/2014 are hereby, allowed.
Appellants, namely, Raj Kumar Mandal [Cr. Appeal (SJ) No. 55 of
2014], Ramesh Mandal, Jhabru Mandal, Subodh Mandal, Shiv
Narayan Mandal [Cr. Appeal (SJ) No. 101/2014] are on bail, hence
are they are discharged from their liability of bail bonds.
12. Now coming to the status of appellant Manoj Mandal @
Manna Mandal, admittedly, victim had not been examined. Because
of the fact that victim has not been examined on account thereof, Ext-
2, S.A. could not be entertainable in the eye of law nor the contents of
the complaint petition as, there happens to be absence of maker of the
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documents. In likewise manner, a deposition during course of enquiry
will be only for the purpose of corroboration a contradiction being
previous statement.
13. Be that as it may, from the complaint petition itself,
there happens to be divulgence that victim was minor. While, she was
examined on S.A, the Court had estimated her age to be 16 years.
Furthermore, from the complaint petition it is evident that while
appellant was engaged in copulation with her, they were seen by the
Rabindra Mandal, younger brother of victim who was also threatened
at the end of the appellant to be killed, in case, there happens to be
divulgence at his end and in the aforesaid background, she also
advised her brother not to divulge. Considering the tender age of the
victim as well as thumb impression happens to be over the complaint
petition suggests the victim to be illiterate, the aforesaid activity is
found normal one. The appellant might have received these
documents in terms of Section 207 of the Cr.P.C. That means to say,
status of victim being minor was duly under his acknowledgment and
so, at least, during course of cross-examination, there would have
been at least suggestion at the end of the appellant that victim was
major and their activities were consensual. On the contrary, the
appellant Manoj Mandal had completely denied his involvement and
shown the victim to be associated with Phoolchand and whatever
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subsequent resultants were on account of attachment with
Phoolchand.
14. From the evidence available on the record, it is evident
that P.W-1 Dinesh Mandal, P.W-3 Sadanand Mandal, P.W-4
Singheswar Mandal, P.W-5 Satya Narayan Mandal, P.W-6 Damodar
Mandal and P.W-7 Deo Narayan Mandal, based their evidence, so far
first two parts are concerned, that means to say, incident of rape and
continuing copulation, pregnancy, termination of pregnancy by way
of administering medicine in deceitful way to have acknowledged
through the victim and so their evidences on that very score, happens
to be non recognizable in the eye of law.
15. Now, remains evidence of P.W-2, Rabindra Mandal
whose presence as indicated above, was right from the complaint
petition against whom it has been disclosed that he had witnessed an
incident of copulation having been at the hut of the appellant. During
examination-in-chief, he had stated that about 3 and ½ years ago,
while Manoj Mandal was committing sin with his sister at his hut, he
had seen. He had also seen him whereupon he threatened that in case
you disclose the incident, you will be murdered. He had not raised
alarm and then there happens to be incident relating to subsequent
effect. Identifying the accused.
16. During course of cross-examination, at para-4, he has
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not been cross-examined directly on that very score. He had stated
that when he had gone inside the room, he had not found cattle. Manoj
Mandal, in the room itself had threatened him that in case of raising of
alarm, he will be murdered. Manoj had threatened even subsequently
and that being so, he had not disclosed the incident to his parents. But
so far theme of copulation is concerned, which he had seen, no cross-
examination was there. Paras 5 6 happens to be relating to
subsequent event.
17. Section 134 of the Evidence Act did not require number
of the witnesses to be examined in order to prove a fact rather
evidence of a single witness, if inspires confidence will be sufficient
to record finding of the guilt.
18. Furthermore, in Gian Chand others v. State of
Haryana reported in 2013(4) PLJR 7 (SC) it has been held:-
11. The effect of not cross-examining a witness on
a particular fact/circumstance has been dealt with and explained by
this Court in Laxmibai (Dead) Thr. L.Rs. Anr. v.
Bhagwanthuva (Dead) Thr. L.Rs. Ors., AIR 2013 SC 1204
observing as under:
“31. Furthermore, there cannot be any
dispute with respect to the settled legal proposition, that if
a party wishes to raise any doubt as regards the
correctness of the statement of a witness, the said
witness must be given an opportunity to explain his
statement by drawing his attention to that part of it,
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-201812/ 13
which has been objected to by the other party, as being
untrue. Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of
the statutory provisions enshrined in Section 138 of the
Evidence Act, 1872, which enable the opposite party to
cross-examine a witness as regards information tendered
in evidence by him during his initial examination in
chief, and the scope of this provision stands enlarged by
Section 146 of the Evidence Act, which permits a witness
to be questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is to be
relied upon, for the reason that it is impossible for the
witness to explain or elaborate upon any doubts as
regards the same, in the absence of questions put to him
with respect to the circumstances which indicate that the
version of events provided by him, is not fit to be
believed, and the witness himself, is unworthy of credit.
Thus, if a party intends to impeach a witness, he must
provide adequate opportunity to the witness in the witness
box, to give a full and proper explanation. The same is
essential to ensure fair play and fairness in dealing with
witnesses.”
19. Because of the fact that there happens to be no cross-
examination on that very score challenging the status of P.W-2
Rabindra Mandal not to be an eyewitness of copulation, while
appellant Manoj Mandal was engaged with the victim, then in that
circumstances, it will tantamount to an admission and that being so,
the conviction recorded by the learned lower Court relating to Section
376 of the IPC is found duly substantiated and is accordingly
affirmed.
20. So far Sections 313 as well as 493 and 120-B of the
IPC are concerned, those are not at all found duly substantiated and to
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that extent judgment of conviction and sentence recorded by the
learned lower Court is set aside. In terms thereof Criminal Appeal
No.156/2014 is partly allowed.
21. However, considering the fact that victim has not been
examined and considering the fact that even having been seen by the
PW-2, victim had not complained that she was being raped though
being minor was incapable to give consent, on account thereof, the
sentence inflicted by the learned lower Court is reduced to seven
years, the minimum sentence so prescribed retaining the fine and its
default clause. Appellant, namely, Manoj Kumar Mandal @ Manna
Mandal [Cr. Appeal (SJ) No. 156 of 2014] is under custody, on
account thereof, he will remain till saturation of the sentence.
(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 28.05.2018
Transmission 28.05.2018
Date
