NAWAL KISHORE MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) The order impugned in this revision is the judgment of appellate Court by which 1st Additional Sessions Judge, Khagaria while upholding verdict of guilt recorded by the trial Court dismissed the appeal with some modification. Though salient feature of the prosecution case has been broadly spelt out in the judgment of the Courts below, that can be stated with brevity for appreciation of contentions raised on behalf of the petitioners. The factual matrix are that on 22nd January, 1988 while Reena Kumari (PW 4) had gone to the field to attend nature's call, she was overpowered by the petitioners on the point of pistol who took her to village Bhorkath which situates west to village Teliabathan and kept her there for the night where she met also Anil Kumar Mandal and both of them committed sexual assault on her. After confinement for about four days in village Bhorkath she was taken to village Maraiya and from there to Khagaria where she was coerced to put her signature on a plain piece of paper. Petitioner No. 2 and Anil Kumar Mandal kept her at Khagaria Railway Station during night and from there she was taken to Maraiya, pursuant to which Neeraj Kumar Mandal, petitioner No. 2 brought her to his house where for about 16 days she was subjected to sexual assault by him. After Reena Devi (Kumari) had not returned to her house when she had gone to attend nature's call, worried parents had been making search for her and father who was residing at Hazaribagh was also informed by the wife. The worried parents took recourse to public authority pursuant to which Reena Devi was recovered from the house of petitioner Nos. 1 and 2. As usual, a -Police case had been registered and investigation commenced, during which statement of a number of witnesses were recorded by the Police and on its conclusion charge-sheet was laid before the Court against the petitioners, showing Anil Kumar Mandal absconder. Though Anil Kumar Mandal too was eventually put on trial, the trial had not concluded against him, due to his absconsion in the midst of trial. In eventual trial, the State examined altogether six witnesses and defence too examined one witness ostensibly to counter the allegations attributed to the petitioners.

(2.) The defence of the petitioners both before the Courts below and this Court had been denial of complicity, and Court was rather sought to be impressed that both Reena Devi and petitioner No. 2 had been trading love affairs, and former on her own volition gave her company to petitioner No. 2. The trial Court, however, rejecting plea of innocence of the petitioners, recorded verdict of guilt and found petitioner No. 1 guilty under Sections 363, 366A and 368 of the Indian Penal Code and for all the three counts, he was sentenced to suffer rigorous imprisonment for a term of three years and also to pay fine of Rs. 1000/- (one thousand) on each counts. Petitioner No. 2 too suffered conviction under all the three counts and same term of imprisonment was awarded to him also. Petitioner No. 2, however, suffered conviction also under Section 376 of the Indian Penal Code for which he was sentenced to suffer rigorous imprisonment for a term of seven years. However, all the sentences in the case of the petitioners were directed to run concurrently.

(3.) When the matter was carried in appeal by the petitioners, the appellate Court on meticulous appreciation of evidences, exonerated petitioner No. 1 under Sections 363 and 366A (wrongly written 366) of the Indian Penal Code, though maintained his conviction and sentence under Section 368 of the Indian Penal Code. In case of petitioner No. 2 the appellate Court exonerated him of the charges under Section 363 of the Indian Penal Code and maintained his conviction and sentence under Section 368 of the Indian Penal Code. Though conviction and sentence of petitioner No. 2 under Section 376 of the Indian Penal Code was maintained, conviction under Section 366A of the Indian Penal Code was converted to under Section 366 of the Indian Penal Code, with no modification in sentence.