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2019 Supreme(Pat) 714
IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI, J.
Nitya Nand Mandal Son of Rajdeo Mandal – Appellant
Versus
The State Of Bihar - Respondent/s with
Criminal Appeal (SJ) No.381, 258, 443 of 2016
Decided on : 06-11-2019
Advocate Appeared:
For the Appellant : Mr.Abhijeet Gautam, Mr. Bhola Prasad, Mr.Kamal Kishore Jha, Adv.
For the Respondent: Mr. S.A. Ahmad, Mr.Binod Bihari, Mr. Radha Mohan Singh, Mr. Zeyaul Hoda, Adv.
Headnote:
Criminal Procedure Code, 1973 – Section 273 read with Sections 205 and 317 – Indian Penal Code, 1860 – Sections 363, 366A and 370 – Kidnapping and trafficking of minor girl – Conviction and sentence – Procedure adopted by lower court during course of conduction of trial happens to be contrary to spirit of law – Under Code of Criminal Procedure, there happens to be no provision whereunder photo copy of deposition of a witness could be used as an evidence relating to supplementary case record rather, witness has to be examined independently relating to original records as well as supplementary records – Use of photo copy of a document is only permissible under Civil Court Rules while reconstructing a missing record by order of District Judge and not in other circumstance – Photo copy of document is also not legally permissible rather, same is to be substituted through certified copy replacing the original – Evidence of witness has to be recorded in presence of accused though there should not be physical presence as, Section 317 Cr.P.C as well as Section 205 of Cr.P.C. are there whereunder accused may have his appearance through his Counsel but, with a caution that during course of trial, he will not be in a position of raising objection over identification – Impugned judgments set aside and matter remitted back to lower court with a direction to proceed afresh in accordance with law. (Paras 16, 18 and 19)
JUDGMENT :
Before coming to main track, certain incidents falling in between have to be noticed and the same is being incorporated below.
2. On the written report of one Shatrudhan Das with regard to kidnapping of his minor daughter (name withheld), Kasba PS Case No. 129/2012 was registered and, after completing investigation, first charge-sheet was submitted against Nitya Nand Mandal (appellant of Criminal Appeal (SJ) No. 381 of 2016), keeping investigation pending against others, who faced Sessions Trial No. 121/2013, convicted and sentenced, after having his case bifurcated.
3. Some of the remaining accused were apprehended against whom supplementary charge-sheet was submitted namely, Turai Mandal @ Shiv Narain Mandal, (appellant of Criminal Appeal (SJ) No. 443 of 2016), who faced Sessions Trial No. 805/2013 and got convicted & sentenced, keeping investigation pending against others.
4. Another supplementary charge-sheet has been submitted against Kunia Mandal and Awdhesh Mandal, (appellants of Criminal Appeal (SJ) No. 258 of 2016) keeping the investigation pending against remaining accused who faced Sessions Case No. 1110/2014, convicted and sentenced.
5. All these three Sessions Trials, i.e. to say, Sessions Trial Nos. 121/2013, 805/2013 and 1110/2014 earlier were pending before different courts but, in due course of time came up before the same court and, all the Sessions Trials have been disposed of by the same court that means to say, by the 3rd Additional Sessions Judge, Purnia, Bihar vide judgment of conviction dated 23.02.2016 and order of sentence dated 29.02.2016 whereby all the appellants have been found guilty for the offences punishable under Sections 363, 366A, 370 of the IPC and each one has been sentenced to undergo RI for seven years and to pay fine of Rs. 35,000/-and in default thereof, to undergo RI for one year, under Section 366A IPC, RI for five years as well as fine of Rs. 25,000/-and in default thereof, to undergo RI for a year additionally, under Section 363, 370 IPC respectively, appellant, Nitya Nand Mandal has further been found guilty for an offence punishable under Section 376 IPC and sentenced to undergo RI for 10 years as well as to pay fine of Rs. 50,000/-and in default thereof, to undergo RI for a year, with a further direction to run the sentences concurrently, with a further direction that the period having undergone will be set off in accordance with Section 428 CrPC.
6. Because of the fact that the illegality, mistakes having been committed at the end of the learned lower court during course of sailing with all the three Sessions Trial, will affect the finding so recorded by the learned lower court, on account thereof, for better appreciation of the fact as well as law, irrespective of the fact that all the three Sessions Trial referred above, have been disposed of independently but on the same day by the learned lower court, on account thereof, is being disposed of by a common judgment.
7. As per written report filed by Shatrudhan Das is that his daughter, victim (name withheld) became traceless one day before Deepawali in the year 2011. They made hectic search but in vain. They had gone to the police but failed to oblige them so, no case was registered. It has also been disclosed that on 16.08.2012, one Janak Mandal of Jalalgarh Block working at Sonipat, Haryana informed him that his daughter (victim) is engaged as a domestic help in a Kothi at Sector No. 15 of Sonipat. It has further been disclosed at his end that she has been sold out and after Eid, she will be handed over to her purchaser. After receiving the information, he proceeded on 17.08.2012, reached at Sonipat on 19.08.2012, anyhow, contacted Janak Mandal and with the help of SHO, Sonipat Police Station, the victim was recovered from the house of Nitya Nand Mandal, Sector 15 of Sonipat along with Nitya Nand Mandal and they both were taken to police station. In the evening, the victim was handed over to the informant who, on query
