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2013 DIGILAW 60 (PAT)

Krishna Chandra Mandal v. State of Bihar

2013-01-11

ADITYA KUMAR TRIVEDI, SHYAM KISHORE SHARMA

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ORAL JUDGMENT ADITYA KUMAR TRIVEDI, J. Cr. Appeal (DB) No. 276 of 1990 wherein Krishna Chandra Mandal is appellant and Cr. Appeal (DB) No. 311 of 1990 wherein Sashi Chandra Das @ Bhaglu happens to be appellant, commonly originate against the judgment dated 27.06.1990 passed by Sessions Judge, Katihar in Sessions Case No. 274 of 1989 whereby and whereunder both the appellants have been found guilty for an offence punishable under Section 376 of the IPC and have been directed to undergo R.I. for life. 2. PW-4 (name withheld) gave Fardbeyan (Ext-1) on 28.03.1989 at about 11.00 a.m. alleging inter alia that on account of being orphan, she was taken care of by her cousin sister (phuperi) and accordingly, was residing at the Sasural of cousin sister at village, Kushiyari giving domestic assistance. It has further been alleged that as soon as she reached at the age of puberty, she was sexually exploited by brother-in-law, Krishna Chandra Mandal (appellant) and this process continued for months together on account of which she became pregnant. Then thereafter, she divulged the event to her cousin sister who firstly chided her and then said that her brother-in-law will manage the affair. In the aforesaid background, one Chinta Devi, Nurse had visited her place. His brother-in-law had assured her that he would marry with her. Then thereafter, the villagers came to know about the affair followed with a Panchayti and as the villagers did not accede with the abortion, therefore, police was informed. 3. On the basis of the aforesaid Fardbeyan, Pranpur PS. Case No. 25/1989 was registered under Section 376 of the IPC, investigation commenced and during course of investigation Krishna Chandra Mandal (appellant) along with informant were taken into custody. Krishna Chandra Mandal (appellant) was sent to judicial custody while on account of minority, the victim was sent to Remand Home and while staying there, her statement under Section 164 Cr.P.C. was recorded and on the basis thereof Shashi Chandra Das @ Bhaglu was also arrayed as an accused leading to submission of charge-sheet against both of them consequent thereupon faced the trial and met with ultimate result which has been challenged under instant appeals. 4. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of innocence. 4. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of innocence. Furthermore, it is evident that both the appellants have independently put an allegation against each other and for that they have also examined two DWs as well as also exhibited statement recorded under Section 164 of the Cr.P.C of one of the appellants, Krishna Chandra Mandal as Ext-A. 5. It has been argued on behalf of the appellant Krishna Chandra Mandal relating to Cr. Appeal (DB) No. 276/1990 during course of assailing the judgment impugned that the finding recorded by learned trial court is not at all tenable in the eye of law. Further, elaborating his submission learned counsel submitted that the evidence of witnesses which the witnesses have deposed in the court happens to be substantial evidence over which the court has to put reliance. On account thereof, as all the witnesses including informant-victim PW-4 had exonerated the appellant therefore, legally no charge is found to be substantiated from the evidence available on the record. It has further been submitted that the learned trial court on its own illusion has convicted the appellant without being supported with the legal evidence. 6. On the other hand, it has been pleaded on behalf of appellant of Cr.Appeal (DB) No. 311 of 1990 that there is specific allegation against appellant of Cr.Appeal (DB) No. 276 of 1990 by having elaborate details of incidents in the Fardbeyan how the victim was ravished by him times without number. It has further been submitted that PW-4 had herself admitted that while she was staying at Remand Home, PW-1 who is wife of appellant of Cr.Appeal (DB) No. 276 of 1990 was on regular visit and it appears that at her instance PW-4 had just reversed her allegations right from appellant, Krishna Chandra Mandal to appellant, Shashi Chandra Das @ Bhaglu and on account thereof appellant, Shashi Chandra Das @ Bhaglu has been made accused in this case. It has further been submitted that instead of arraying the appellant, Shashi Chandra Das @ Bhaglu as an accused, he should have been accepted by the prosecution as a witness because of the fact that he was the first person who had informed the police on the basis of which, a Sanha entry was made. It has further been submitted that instead of arraying the appellant, Shashi Chandra Das @ Bhaglu as an accused, he should have been accepted by the prosecution as a witness because of the fact that he was the first person who had informed the police on the basis of which, a Sanha entry was made. The aforesaid theme is supported with the finding of the PW-6, I.O. Not only this, Krishna Chandra Mandal was examined under Section 164 of the Cr.P.C. and after going through his statement, it is evident that he had not made any sort of allegation against the appellant. In the aforesaid background as well as in light of persisting contradictory statement of PW-4, the conviction and sentence recorded by the learned trial court does not appear to be sound one. 7. Per contra, It has been submitted on behalf of the learned APP that the finding recorded by the learned trial court is based upon the circumstances visualizing from the evidence available on the record. He has fairly submitted that save and except PW-4 none are eyewitness to occurrence. He has further submitted that when the evidence of PW-4 is taken together with other ocular evidence, the finding recorded by the learned trial court will attract no interference because of the fact that the only conclusion arrived thereupon happens to be with regard to recording of guilt of both the appellants. 8. In order to substantiate its case, the prosecution had examined altogether eight PWs out of whom PW-1 is Sushila Devi, PW-2 is Lakshmi Pd. Mandal, PW-3 is Surendra Pratap Das, PW-4 is the victim, PW-5 is Hari Lal Sah, PW-6 is Prasiddha Nr. Singh, PW-7 is Ganga Prasad, learned Judicial Magistrate, PW-8 is Dr. Kanak Ranjan who had examined the victim. Side by side, the prosecution has also exhibited Ext-1, Fardbeyan, Ext-2, formal FIR Ext-3, State of victim recorded under Section 164 of the Cr.P.C. and Ext-4, Medical report. The defence had also examined two DWs out of whom DW-1 is Laxmi Pati Thakur and DW-2 is Mahendra Mandal as well as also exhibited statement of Krishna Chandra Mandal under Section 164 of the Cr.P.C. as Ext- ‘A’. 9. From the evidence of PW-8 inconsonance with medical report, Ext-4, it is evident that no sign of rape was found over the person of victim although the Doctor opined that she was habituated to intercourse. 9. From the evidence of PW-8 inconsonance with medical report, Ext-4, it is evident that no sign of rape was found over the person of victim although the Doctor opined that she was habituated to intercourse. The Doctor had also found the victim to be pregnant carrying pregnancy of 28 weeks. At the time of examination victim was estimated to be in between 16 to 17 years of age. So, from the aforesaid finding of the Doctor, it is evident that she was sexually exploited while being a minor. Consent though not pleaded appears to be fruitless in the present facts and circumstances of the case. 10. Now, adverting to the oral evidence, less said is better. As informant, PW-4 resiled from her earlier statement recorded under Section 154 of the Cr.P.C. hence was declared hostile by the prosecution and her attention was drawn towards her previous statement being a Fardbeyan. This witness during course of her examination-in-chief alone apart from denying her previous statement had disclosed that she had not given any statement before the police rather the case was instituted by Shashi Chandra Das @ Bhaglu. She had further alleged that it was Shashi Chandra Das @ Bhaglu who after alluring her committed rape/indulged in sexual intercourse at different occasion on account of which she became pregnant. 11. PW-1, Sushila Devi is her sister who had disclosed that the victim had disclosed her that she became pregnant on account of sexual indulgence with Shashi Chandra Das @ Bhaglu. During cross-examination, she had stated that the statement of victim was not recorded in her presence. She had also stated that there was Panchayati in the village which ended in commotion. 12. PW-2, Lakshmi Pd. Mandal was also declared hostile as he left/omit to bring Shashi Chandra Das @ Bhaglu, although, he had stated that Shushila Devi told him that on account of sexually indulgence with Shashi Chandra Das @ Bhaglu the victim has become pregnant. He had also stated in the examination-in-chief itself that there was Panchayati wherein Punches have arbitrated the matter and directed the appellant, Krishna Chandra Mandal to keep the victim but as he resisted, information was given to the police by the Punches. During cross-examination, he had admitted relationship with prosecution party. He had further admitted that information to P.S. was given after Panchayati. 13. During cross-examination, he had admitted relationship with prosecution party. He had further admitted that information to P.S. was given after Panchayati. 13. In the likewise manner, PW-3, Surendra Pratap Das had deposed and so he was also declared hostile. 14. PW-5, Hari Lal Sah was tendred. 15. PW-6, Prashiddha Nr. Singh is the I.O. He had deposed that on 28.03.1989 Shashi Chandra Das @ Bhaglu had tendered a written report on the basis of which Sanha entry was made and then he along with other police personnel rushed to the P.O. village and gone to the house of accused, Krishna Chandra Mandal where recorded Fardbeyan of victim which was read over to her and then she put her thumb impression. On the basis of the aforesaid Fardbeyan, Pranpur P.S. Case No. 25/89 was registered whereupon investigation commenced during course of which informant was further examined and then the inspection of P.O. was done. According to the I.O. the first P.O. is bamboo cluster lying west to the house of Krishna Chandra Mandal while the second place of occurrence as shown by the victim is the house of Krishna Chandra Mandal where he found one bed. The informant was sent to medical examination, on the other hand, accused Krishna Chandra Mandal was apprehended. During course of investigation, he also made Shashi Chandra Das @ Bhaglu as an accused and accordingly, after completing investigation submitted charge-sheet against both the accused. During cross-examination, he had also admitted that just after recording of Fardbeyan he had taken Krishna Chandra Mandal into custody. He had also stated that Krishna Chandra Mandal as well as victim were examined under Section 164 of the Cr.P.C. In paragraph-9, he was confronted with further statement of the informant wherein she had an allegation against her brother-in-law with regard to her sexual exploitation after attaining the age of puberty. 16. PW-7, happens to be a Magistrate who had recorded the statement of victim on a police requisition under Section 164 of the Cr.P.C. and got it exhibited as Ext-3. 16. PW-7, happens to be a Magistrate who had recorded the statement of victim on a police requisition under Section 164 of the Cr.P.C. and got it exhibited as Ext-3. So, after having minute observation over the material available on the record it is evident that PW-4 who on account of vagrancy was under the control of PW-1 as well as one of the appellant Krishna Chandra Mandal (husband of PW-1) and maintaining such status while she attained the age of puberty was sexually exploited and that happens to be her first version. Shifting there-from at subsequent stage by bringing Shashi Chandra Das @ Bhaglu in place of Krishna Chandra Mandal makes her evidence unreliable on account of the fact that such belated statement having no legal and cogent explanation is bound to affect over credibility of the evidence of the witness. PW-4 had not explained for what reason in the Fardbeayn, she had left Shashi Chandra Das @ Bhaglu and instead thereof dragged her brother-in-law or vice-versa. Apart from PW-4, none other appears to be a reliable witness though command as hearsay and on account thereof, it looks difficult as well as improper to concur with the finding arrived at by the learned trial court. 17. Consequent thereupon, these two appeals are allowed and the judgment of conviction and sentence rendered by the learned trial court is set aside. 18. Both the appellants are on bail. Hence, they are discharged from the liability of bail bond. Appeal allowed.