High Court allowed appeal against rape conviction. Conviction set aside because accused was totally blind, prosecution failed to explain mechanism of crime or expert opinion on his sexual capability, and doubt remained.
Conviction and sentence set-aside; appellant set at liberty.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.289 of 2010
(Against conviction and sentence awarded on 8th February 2010 by 1st Additional Sessions Judge, Fast Track Court, Jamui, in Session Trial No. 85/2008 arising out of Jhajha P.S. Case No. 106/2007, G.R. No. 1166/2007.)
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Basudeo Mandal Son Of Late Maruyan Mandal Resident Of VillageTarakura, P.S.- Jhajha, District- Jamui.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
=================================================== Appearance :
For the Appellant/s : Mr. Prakash Mahto, Advocate For the Respondent/s : Mr. S.N. Prasad, Additional Public Prosecutor ================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL JUDGMENT Date : 06th August 2013
Heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State.
appeal against his conviction for the offence under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 2000/- in default whereof to undergo further rigorous imprisonment for two months as awarded on 8th February 2010 by 1st Additional Sessions Judge, Fast Track Court, Jamui, in Session Trial No. 85/2008 arising out of Jhajha P.S. Case No. 106/2007, G.R.
No. 1166/2007.
Exhibit – 1 – Formal F.I.R.
Exhibit – 2 – Medical Board Report
Exhibit – 2/1 to 2/3 – Three X-Ray Plats.
Exhibit – 3 – Signature of Jagidish Mandal on Panchanama. Exhibit – 4 – Writing and Signature on Fardbeyan.
examined and following documents have been produced:
Exhibit – A & A/1 – Injury report of Pobita Kumari.
State of Bihar reported in 2007(2) PLJR 122 and Md. Raja Khan Vs. The State of Bihar reported in 2007(Supp.)PLJR 763 ; for remission of sentence if conviction is upheld.
none else than his uncle in Gotia and for about 50 years he is a Saint. He is blind man and move with the help of Lathi. He has his own land and house, but, neither wife nor any children and further denied false implication of the appellant just to grab the land.
years, reproduced the statement of P.W.4 with only addition that the appellant while coming out of his room climbed over the Guava tree and in cross examination she further admits the appellant having some land etc. and denied false implication. Further she says that appellant is blind since before she came
to her Sasural.
prosecutrix has come to say about his presence on Deoghar etc. on the relevant day only on coming back and giving information of the prosecutrix and case was instituted. Further stated about appellants earlier commission of similar crime and in cross examination admits the appellant being
unmarried blind having some landed property and denied false implication just to grab the landed property.
was at Deoghar and only on return came to know about the occurrence and further stated about earlier commission of similar offence by the appellant and in cross examination admits no case was instituted for earlier offence, of course, in panchayati some fine was imposed. He also affirms the appellant being blind moving with aid of Lathi.
& 8 he was also at Deoghar at the relevant time and came to know about the occurrence on arrival and further states earlier commission of offence by the appellant. During cross examination he admits about status of the appellant and further asserts he was one of the Panch in Panchayat organized for earlier wrong.
herself states with only addition that the blind appellant is in relation as her uncle and she is not aware of his name and further states that only after coming out of the room she alarmed then P.Ws. 4 & 5 came there and she narrated about the occurrence to them and since her father was not available,
so on his arrival case was instituted. In cross examination she admits that north of Well her house situates from adjacent to some house of Dagori Mandal and there are 10 to 20 houses more at nearby place and while she was there at Well for fetching water he was gone and when her hand was got hold by the appellant she did not raise any alarm, of course, tried to come out of his clutches but he dragged her inside the room but no injury etc. was caused and when she arrived at the door she raise alarm but none came on, even inside she was crying but subsequently during commission of real crime she did not raise any hue and cry. In paragraph 7 she admits that when some cloth was pushed in her mouth and causes no injury and there was some bleeding from her private part and also blood stains on her garments. Again in para 8 she admits from the room appellant came out, she only followed him and in para 12 he admits about her medical examination etc. and also admits status of the appellant being complete blind having landed property and being issueless and his lands are adjacent to land of the prosecutrix. She denied false implication just to grab the landed property of the appellant.
4 & 5 who could be able to see the prosecutrix coming out of the room following the appellant said nothing about any weeping or crying by the prosecutrix, though, P.W.6 has tried to insert the same and even prosecutrix P.W.10 in examination in chief tried to support P.W.6, but, failed during cross examination. However, this much is undisputed from the statements of the witnesses examined that appellant is totally blind and not in a position to move only with aid of stick. There is nothing in the evidence to explain the circumstances under which the appellant came to know about arrival of the prosecutrix at the Well, arrived there getting hold of her, taking inside the room without any resistance. Medical examination report of the victim produced on behalf of the prosecution is only as regard to her age indicating the same being 14 to 15 years, but, on other part though Doctor’s report is available with the record, but the prosecution did not produce the same as a piece of evidence by examining the doctor. Even the Investigating Officer has been withheld. From the trend of cross examination as well statement of the appellant under section 313 Cr.P.C. is nothing but totally denial of involvement with assertion of false implication just to grab his property and that apart the appellant has also
clearly stated about his incapability to do any sexual act which prima facie find support from his undisputed age 75 years at the time of his examination under section 313 Cr.P.C. on 20th October 2009 that means around 73 years at the time of occurrence. His medical examination was also incumbent to establish the prosecution version.
of “State of Uttar Pradesh Vs. Manoj Kumar Pandey”
reported in (2009) 1 S.C.C. 72 it is held as follows:-
“…………….Apart from that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape
……………….”
prosecution case if not removed or diluted conviction of the accused/appellant cannot sustain.
(Akhilesh Chandra, J)
Rajeev/-
2 issues framed by the court
Whether the conviction can stand when the accused is blind and the prosecution failed to explain how he knew the victim's arrival or committed the act.
Whether the benefit of two reasonable views should be given to the accused where the prosecution case remains incomplete.
Colour shows how this judgement treated each authority
Sarafat Mian Vs. The State of BiharReferred¶26
Sarafat Mian Vs. The State of Bihar reported in 2007(2) PLJR 122
Md. Raja Khan Vs. The State of BiharReferred¶26
Md. Raja Khan Vs. The State of Bihar reported in 2007(Supp.)PLJR 763
State of Uttar Pradesh Vs. Manoj Kumar PandeyReferred¶51
State of Uttar Pradesh Vs. Manoj Kumar Pandey reported in (2009) 1 S.C.C. 72 · Who else cites this
1 provisions across 1 enactments
Basudeo Mandal
The State of Bihar
Akhilesh Chandra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
