Patna High Court
Sitaram Mandal vs State Of Bihar on 1 May, 2024
Author: Sunil Kumar Panwar
Bench: Sunil Kumar Panwar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.481 of 2006
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Sitaram Mandal, Son of Narayan Mandal, resident of village-Chediya Mandal
Tola, Police Station- Kurshela, District- Katihar
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
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Appearance :
For the Appellant/s : Mrs. Sarandha Suman, (Amicus Curiae)
For the Respondent/s : Mr. Ram Chandra Singh, APP
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CORAM: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR
CAV JUDGMENT
Date : 01-05-2024
Heard Mrs. Sarandha Suman, learned counsel for
the appellant(Amicus Curiae) and Mr. Ram Chandra Singh,
learned A.P.P for the State.
2. This appeal has been preferred by the appellant
being aggrieved and dissatisfied with the judgment of
conviction and order of sentence dated 31.05.2006 passed by
the learned Additional District and Sessions Judge, Fast Track
Court, IV, Katihar in Sessions Trial No. 508 of 1996, arising
out of Kursela P.S. Case. No. 52/1995, whereby and
whereunder the appellant was found guilty and convicted for
the offences punishable under Sections 363 and 366(A) of the
Indian Penal Code and he was sentenced to undergo rigorous
imprisonment for a period of three years under Section 363 of
Patna High Court CR. APP (SJ) No.481 of 2006 dt.01-05-2024
2/9
IPC and to undergo rigorous imprisonment for Five years
under Section 366(A) of the IPC. The appellant was also
directed to deposit the fine of Rs. 500 under each section
respectively and in default of payment, he was sentenced to
undergo rigorous imprisonment for three months respectively.
3. The prosecution case as per the Fardbeyan of
the F.I.R, the informant(Naresh Kumar Mandal, P.W.-1) on
14.08.1995
, he got his statement recorded before the officer-
in-charge of Kurshela Police Station alleging therein that on
the date of alleged occurrence, when he did not find his sister
at his house then a hectic search was made but went in-vain.
Later on, he came to know that at the house of the appellant,
the other co-accused Chandeshwari Mandal and Ashok
Mandal had come but now they are not there. Thereafter, he
also came to know that at the instance of the appellant, the
other co-accused has been enticed away the victim.
Ultimately, the victim was found near the Bihpur Railway
Station, where the victim disclosed that the accused
Chandeshwari Mandal and Ashok Mandal had brought her.
4. On the basis of aforesaid fardbeyan of P.W.-1
dated 14.08.1995(Ext.1), the I.O after completion of
investigation, submitted charge-sheet in the offence under
Patna High Court CR. APP (SJ) No.481 of 2006 dt.01-05-2024
Sections 363, 366(A), 376 and 120(B) of the IPC.
Accordingly, the cognizance was taken in the aforesaid
sections and the case was committed to the Court of Sessions
for trial and disposal.
5. Charge was framed against the accused
appellant(Sitaram Mandal) under Sections 363 and 366(A) of
the IPC. Trial Court explained the charge to the appellant to
which he pleaded not guilty and claim to be tried.
6. The point of consideration in this appeal is
whether the prosecution is able to prove the charge levelled
against the accused appellant beyond reasonable doubt or not.
7. During the course of trial, altogether six
witnesses were examined on behalf of the prosecution to
substantiate the charge levelled against the accused/
appellant. P.W.-1 Naresh Mandal(informant), P.W.-2 Mira
Devi(mother of the victim), P.W.-3 Jagdish Mandal( father of
the victim girl), P.W.-4 Baleshwar Mandal(independent
witness) P.W.-5 Bhagirath Mandal and P.W.-6 Kailash
Mandal(formal witness).
8. P.W.-1(informant) deposed in his evidence that
on the relevant date of occurrence, the victim girl was not
found in the house on 09.08.1995. Hence, he had started
Patna High Court CR. APP (SJ) No.481 of 2006 dt.01-05-2024
searching his sister. He had got some information that she
was living in Bihpur Thana. Besides this, he had also
searched his sister in the house of Sitaram Mandal(appellant)
and Chandeshwari Mandal. He had knowledge that one
Ashok Mandal as well as Chandeshwari Mandal were not
been present in their houses. He had doubt that appellant
Sitaram Mandal, Suresh Mandal, Chandeshwari Mandal and
Ashok Mandal were doing business of kidnapping of girls
and selling them for business. The informant as well as others
had gone to Thana Bihapur and they had found that his sister
was there in a hut near the wireless tower. They had seen
Chandeshwari Mandal after that Chandeshwari Mandal was
arrested and he was taken before the Officer-in-charge,
Kursela PS with victim. He had given his statement before
the O/C, Kursela and he had signed on his fardbeyan.
Fardbeyan has been marked as Ext-I. He(informant) has
identified the accused appellant Sitaram Mandal and claimed
to identify all the accused persons. He has supported the
prosecution case.
9. P.W.-2 Mira Devi who is the mother of the
victim who supported the entire evidence of P.W.-1.
Evidence of this witness shows that her daughter was caught
Patna High Court CR. APP (SJ) No.481 of 2006 dt.01-05-2024
red handed in a thatched house with accused Chandeshwari
Mandal and he was brought before the police. She has
identified the accused Sitaram Mandal and claimed to
identified the rest three accused persons.
10. P.W.-3 Jagdish Mandal who is the father of the
victim girl. He deposed in his evidence that his daughter was
kidnapped by the four accused persons. She was recovered
near Thana Bihpur. He has corroborated the version of P.W.-
1(informant) in his evidence. Further, he deposed in para-2 of
his evidence that he has not seen the kidnapping by the
accused persons.
11. P.W.-4 is Baleshwar Mandal who is an
independent witness. He has not supported the prosecution
case in his evidence as such, he was declared hostile.
12. P.W.-5 Bhagirath Mandal has not supported the
prosecution case in his evidence and as such, he was declared
hostile.
13. P.W.-6 is Kailash Mandal who is formal
witness of this case.
14. Mrs. Sarandha Suman is appointed as amicus
curiae for assisting the Court in this appeal who submitted
that entire proceeding leading to present appeal conducted by
Patna High Court CR. APP (SJ) No.481 of 2006 dt.01-05-2024
the trial court is without jurisdiction. Learned trial Court has
not considered the fact that P.W.-4 and P.W.-5 have been
declared hostile in their evidence and P.W.-6 is the formal
witness. Learned trial Court has not considered the fact that
neither the I.O nor the victim of this case have been examined
which caused serious prejudice to the appellant and also trial
Court has not kept in mind the fact that P.W-2 who has
clearly deposed in para-4 of her cross-examination that she
has not seen anyone to take away the victim. It is further
submitted on behalf of the learned counsel for the appellant
that as per the statement of the victim recorded under Section
164 of the Cr.P.C. wherein she deposed that she fall in love
with one Ashok Mandal and later on she solemnized marriage
with him and leading a conjugal life. She has not deposed any
complicity of the appellant in kidnapping her. She further
deposed that on the instigation of his maternal uncle, her
brother lodged this FIR. There is delay of 5 days in lodging
the FIR. The witnesses who supported the prosecution case,
are family members of the victim. Hence, the impugned
judgment and order of sentence are out and out illegal, bad in
law and fit to be set-aside.
15. In contra, learned A.P.P. on behalf of the State
Patna High Court CR. APP (SJ) No.481 of 2006 dt.01-05-2024
submitted that informant(P.W.-1) supported the prosecution
case in his evidence. The judgment of conviction and order of
sentence are based on consistent and cogent evidence passed
by learned trial Court and the appeal is fit to be dismissed.
16. I have gone through the entire evidence
adduced on behalf of the prosecution and rival submissions
made on behalf of the learned Amicus Curiae on behalf of the
appellant and learned APP for the State. In this case, the
prime and star witness who is victim of this case, was not
examined before the trial Court and this fact came into light
that the victim has recorded her statement before the learned
Judicial Magistrate under Section 164 of the Cr.P.C. but the
statement of the victim was not proved in this case. P.W.s-1, 2
and 3 are family members of the victim. P.W.-4 and P.W.-5
were declared hostile and did not support the prosecution
case. From perusal of the prosecution evidence of P.W.s-1, 2
and 3, it is established that no one has seen the alleged
occurrence. The defense case is that the victim as alleged
solemnized marriage with co-accused, namely, Ashok Mandal
and the victim is on the verge of majority. She is matured
and is living a conjugal life with the co-accused Ashok
Mandal. This appellant has no specific overt act. P.W.s.-1, 2
Patna High Court CR. APP (SJ) No.481 of 2006 dt.01-05-2024
and 3 are interested with one another and their evidence was
not supported by any independent eye witnesses. The victim
herself was not appeared to adduce her evidence before the
trial Court.
17. After discussion of the above, I am of this view
that the prosecution has miserably failed to prove its case
beyond reasonable doubt by its evidence and the appellant is
entitled to get the benefit of doubt. The judgment of
conviction and order of sentence passed by the trial Court
only on the basis of hearsay evidence not on the basis of
cogent and consistent evidence. No one is the independent
witness in this case. Hence, the judgment of conviction and
order of sentence are not sustainable and fit to be set aside.
18. In that view of the matter, judgment of
conviction and order of sentence dated 31.05.2006 passed by
learned Additional District and Sessions Judge, Fast Track
Court, IV, Katihar in Sessions Trial No. 508 of 1996, arising
out of Kursela P.S. Case. No. 52/1995 are hereby set aside.
19. The appellant is acquitted after giving benefits
of doubt.
20. The appellant is on bail. He is discharged from
the liabilities of the bail bonds.
Patna High Court CR. APP (SJ) No.481 of 2006 dt.01-05-2024
21. Accordingly, the instant appeal is hereby
allowed.
22. Mrs. Sarandha Suman(Amicus Curiae) was
appointed to represent the appellant/accused. I put on record
the words of appreciation for able assistance rendered by her
in arriving this Court at the proper conclusion in deciding the
instant appeal. The Patna High Court Legal Services
Committee is hereby directed to pay a sum of Rs. 7,000/-
(rupees seven thousand only) to Mrs. Sarandha Suman,
towards her professional fee.
(Sunil Kumar Panwar, J)
Shubham/-
AFR/NAFR NAFR
CAV DATE 29.04.2024.
Uploading Date 01.05.2024.
Transmission Date 01.05.2024.
