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Ramesh Mandal & Ors vs The State Of Bihar on 22 May, 2018

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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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.22-05-2018

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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
Patna High Court CR. APP (SJ) No.55 of 2014 dt.22-05-2018

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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

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