Mantu Patel vs The State Of Bihar
2023 Latest Caselaw 411 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.35 of 2021
       Arising Out of PS. Case No.-1 Year-2019 Thana- BALTHAR District- West Champaran
     ======================================================

BHUSHAN MAHTO Son of Rameshwar mahto Resident of Village - Belthar, P.S.- Balther, Distt.- West Champaran.

... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 34 of 2021 Arising Out of PS. Case No.-1 Year-2019 Thana- BALTHAR District- West Champaran ======================================================

1. MANTU PATEL Son of Ramprasad Patel Resident of Village - Balthar, P.S.-

Balthar, Distt - West Champaran.

2. Ranjeet Mahto Son of Rajkumar Mahto Resident of Village - Balthar, P.S.-

Balthar, Distt - West Champaran.

... ... Appellants Versus The State of Bihar ... ... Respondent ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 35 of 2021) For the Appellant : Mr. Jitendra Kumar, Advocate Mr. Hemant Kumar, Advocate For the Respondent : Mr. Abhimanyu Sharma, A.P.P. (In CRIMINAL APPEAL (DB) No. 34 of 2021) For the Appellants : Mr. Sanjeev Kumar, Advocate For the Respondent : Mr. Sujit Kumar Singh, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 30-01-2023 A judgment of conviction dated 12.02.2020 and the

consequent order of sentence dated 28.02.2020 passed by the

learned 1st Additional Sessions Judge-cum-Special Judge

(SC/ST/POCSO) Bettiah, West Champaran, in Trial No. 130 of

2019 (CIS No. 28 of 2019), arising out of Balther P.S. Case No. 01 Patna High Court CR. APP (DB) No.35 of 2021 dt.30-01-2023

of 2019, are under challenge in both these appeals, preferred under

Section 374(2) of the CrPC, and, therefore, they have been heard

together and are being disposed of by the present judgment and

order.

2. There are altogether three appellants in these appeals,

who have been convicted of the offences punishable under Section

376(D) of the IPC and Section 3(i)(w) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989. After

recording their conviction, learned trial court has imposed

following sentences: -

Sentence Appellant Conviction Number under Section Imprison Fine (Rs.) In default of fine ment CRIMINAL APPEAL (DB) No. 35 of 2021 376(D) of the R.I. for 20 Indian Penal 25,000/- R.I. for Four years years Bhushan Mahto Code 3(i)(w) SC/ST R.I. for 10,000/- R.I for six months (PoA) Act three years CRIMINAL APPEAL (DB) No. 34 of 2021 376(D) of the R.I. for 20 25,000/- R.I. for Four years Mantu Patel Indian Penal years (Appellant No. Code

1) 3(i)(w) SC/ST R.I. for 10,000/- R.I for six months (PoA) Act three years 376(D) of the R.I. for 20 25,000/- R.I. for Four years Ranjeet Mahto Indian Penal years (Appellant No. Code

2) 3(i)(w) SC/ST R.I. for 10,000/- R.I for six months (PoA) Act three years

3. We have heard Mr. Jitendra Kumar, learned counsel

appearing on behalf of the appellant and Mr. Abhimanyu Sharma, Patna High Court CR. APP (DB) No.35 of 2021 dt.30-01-2023

learned Additional Public Prosecutor representing the State in Cr.

Appeal (D.B.) No. 35 of 2021 and Mr. Sanjeev Kumar, learned

counsel appearing on behalf of the appellants and Mr. Sujit Kumar

Singh, learned Additional Public Prosecutor representing the State

in Cr. Appeal (D.B.) No. 34 of 2021.

4. The identity of the prosecutrix is being concealed as

per the statutory requirements in order to protect her prestige and

dignity.

5. The written report of the prosecutrix is the basis for

registration of the concerned Balther P.S. Case No. 01 of 2019 for

the offence punishable under Section 376(D) read with 34 of the

Indian Penal Code (IPC) and Section 3(i)(w) of Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989

('SC/ST(PoA) Act' for short). The prosecutrix in her written

statement claimed to be a married woman of 19 years of age.

According to the FIR, she had come from her matrimonial home to

her parental home for few days. At about 4:30 PM in the evening,

according to her, the appellant Mantu Patel came to a pond near

her house and pestered her to accompany him to a nearby

sugarcane field. When the informant declined, he, by the use of

force, he took her to the sugarcane field and raped her. He,

thereafter, made certain calls with his mobile phone, whereafter, Patna High Court CR. APP (DB) No.35 of 2021 dt.30-01-2023

three other co-villagers, namely, Bhushan Mahto (an appellant),

Munna Mahto and Ranjeet Mahto (an appellant) came there and

raped her one by one. They obstructed her from raising any voice

by gagging her mouth. She returned to her house weeping and

explained the incident to her mother (PW 2) and, thereafter, went

to the police station with her neighbor Shiv Sagar Manjhi. The

informant being an illiterate women, the said written report was

written in the hand of Shiv Sagar Manjhi.

6. Her statement was recorded under Section 164 of the

CrPC on 22.01.2019 before the learned Magistrate, which is there

on record, though it has not been proved at the trial by way of

exhibit. She stated in her statement under Section 164 of the CrPC

that nearly 3-4 days ago, Mantu Patel (an appellant) and Ranjeet

(an appellant) had forcibly abducted her in a jeep from her house

and they had taken her to sugarcane field. Thereafter, they called

the appellant Bhushan Mahto and Munna Mahto, a co-convict. All

of them committed rape upon the prosecutrix one by one. The

prosecutrix was put to medical examination on 19.01.2019. The

medical report has not been proved at the trial. The medical report,

which is there on record, did not suggest any recent incident of

sexual assault. The clothes of the prosecutrix were sent for forensic

examination. The charge sheet was submitted by the police on Patna High Court CR. APP (DB) No.35 of 2021 dt.30-01-2023

16.04.2019 apparently without waiting for the FSL report. The

learned Magistrate took cognizance of the offence punishable

under Section 376(D) read with 34 of the IPC and Section 3(i)(w)

of the SC/ST(PoA) Act. The case was committed to the court of

Sessions, whereafter charges were framed for commission of

offences punishable under Section 376(D) read with 34 of the IPC

and Section 3(i)(w) of the SC/ST (PoA) Act.

7. At the trial, three prosecution's witnesses came to be

examined, namely, the prosecutrix (PW 1), mother of the

prosecutrix (PW 2) and the Investigating Officer (PW 3). At the

trial, the prosecution brought on record certain documents, which

came to be marked as exhibits in support of the case of the

prosecution including the FSL report ( Exhibit 7 and 8). The

doctor, who had examined the victim, was not examined at the

trial. The medical evidence was, thus, not proved. The FSL report,

exhibited as Exhibit 7, does not lead the Court to a definite

conclusion that the semen of these appellants were found on the

clothes, which the victim was wearing at the time of the

occurrence, though blood mixed semen was found on the petticoat

cuttings of the prosecutrix.

8. The most crucial aspect for determination of the

present appeal is the evidence of the prosecutrix (PW 1) and the Patna High Court CR. APP (DB) No.35 of 2021 dt.30-01-2023

mother of the prosecutrix, PW 2. PW 1 in her examination-in-chief

deposed that the occurrence had taken place at 5 in the evening.

All the four persons put to trial had ravished her, and thereafter,

she had gone to the police station to register the FIR. She proved

her written report as exhibit 1 and her RTI as exhibit 1/a. In

paragraph 5 of her cross examination, she deposed that all the

accused persons had concealed their faces with clothes and,

therefore, she could not identify them. She further deposed that she

was not knowing the names of the accused persons and she had got

registered the criminal case on the instigation of her co-villagers.

She denied, in her cross examination, that she had seen the

accused persons. Her mother (PW 2), in her deposition, though

supported the narration of commission of rape by four persons

upon the prosecutrix, she deposed, in her cross examination, that

the prosecutrix had not disclosed the names of the persons put to

trial. She also deposed that PW 1 had told her that because all the

miscreants had covered their faces, she could not identify them.

She further deposed that she had named all the accused persons at

the instance of co-villagers. She denied the involvement of the

persons put to trial in commission of the offence and added that

based on suspicion, their names were given in the criminal case. Patna High Court CR. APP (DB) No.35 of 2021 dt.30-01-2023

9. From the deposition of the IO, it transpires that all the

four named accused persons were arrested on 18.01.2019 from

their respective houses, soon after the registration of the FIR. It is

the contention on behalf of the appellant that this is not natural

conduct of the accused persons to have remained in their house

after commission of such gruesome offence. The IO further

deposed, in his cross examination, that till the submission of the

charge sheet, he had not received FSL report and, therefore, he had

submitted the charge sheet without waiting for the result of the

FSL report. He had visited the place of occurrence, i.e., the

sugarcane field, but he did not notice anything material to support

the accusation of occurrence of rape at the said place.

10. The trial court, based on assessment of the evidence

of the prosecution's witnesses and the exhibits proved at the trial,

has concluded that the prosecution has been able to establish the

charge of commission of offence punishable under Section 376-D

of the IPC against all the persons put to trial, namely, Bhushan

Mahto, Munna Mahto and Ranjeet Mahto. Further, they were not

in a position to prove at the trial that they were unaware of the fact

that the prosecutrix belong to one of the Scheduled Castes.

Accordingly, the trial court recorded the conviction, as noted

above.

Patna High Court CR. APP (DB) No.35 of 2021 dt.30-01-2023

11. It has been stated at the bar that, according to their

information, there is no appeal preferred by the co-convict Munna

Patel, as he is no more and he died soon after the conviction was

recorded.

12. Learned counsel appearing on behalf of the

appellants has submitted that the finding of conviction recorded by

the trial court is without any evidence and the finding of the

conviction is patently erroneous and perverse. He has submitted

that when the prosecutrix (PW 1) and her mother (PW 2) have not

supported the prosecution's case against these appellants and they

have apparently declined to identify these appellants as

perpetrators of the alleged commission of rape there was no

occasion for the trial court to have recorded finding of conviction

without any evidence. They have also argued that apparently these

appellants were named in the FIR at the instance of the co-

villagers based on suspicion as is evident from the deposition of

the main prosecution witnesses, namely, PWs 1 and 2. Further, we

have noticed that the case of the prosecution , as disclosed in the

written report of the prosecutrix and her statement recorded under

Section 164 of the CrPC, are materially different. In her written

statement, which is the basis for registration of the FIR, she

alleged that she was persuaded, cajoled and pestered by the Patna High Court CR. APP (DB) No.35 of 2021 dt.30-01-2023

appellant Mantu Patel, when she was present near a pond close to

her house to go with him to a nearby sugarcane field and when she

had declined, she was forcibly taken by the appellant Mantu Patel

to sugarcane field and raped. After he (Mantu Patel) had

committed the rape upon her, he had called other accused persons

using his mobile phone and, half an hour later, other accused

persons arrived there and raped her. Her statement, recorded under

Section 164 of the CrPC, is materially different, wherein she stated

that Mantu Patel and Ranjeet Mahto had come to her house and

kidnapped her in a jeep and had taken her to sugarcane field and,

subsequently, she was raped by all the four co-accused persons one

by one. At the trial, her evidence is entirely different. She declined

to identify these appellants as the ones who had committed rape

upon her. She further deposed that she had lodged the case against

them at the instigation of the co-villagers. She could not identify

the persons, who had committed rape upon her as they had

concealed their faces. PW 2, her mother, has also deposed that the

names of the accused persons were mentioned in the FIR at the

instance of the co-villagers. We are mindful of the fact that PW 2

herself is a witness to the written report whose RTI is available

thereon.

Patna High Court CR. APP (DB) No.35 of 2021 dt.30-01-2023

13. Further, in our opinion, no definite conclusion can be

drawn from the FSL report (exhibit 8) as regards the fact that the

prosecutrix was sexually assaulted by these appellants. We find

force in the submission made on behalf of the appellants that the

findings of conviction recorded by the trial court is without any

evidence and is, therefore, unsustainable. The impugned judgment

of conviction dated 12.02.2020 and order of sentence dated

28.02.2020, passed by learned 1st Additional Sessions Judge-cum-

Special Judge (SC/ST/POCSO) Bettiah, West Champaran, in Trial

No. 130 of 2019 (CIS No. 28 of 2019), arising out of Balther P.S.

Case No. 01 of 2019, are hereby set aside.

14. These appeals are accordingly allowed.

15. The appellants, namely, Bhushan Mahto in Criminal

Appeal (DB) No. 35 of 2021 and Mantu Patel and Ranjeet Mahto

in Criminal Appeal (DB) No. 34 of 2019, are in custody. Let them

be released forthwith, if not required in any other case.

(Chakradhari Sharan Singh, J)

(Rajesh Kumar Verma, J) Pawan/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          04.02.2023
Transmission Date       04.02.2023