Unknown vs The State Of West Bengal on 19 April, 2017

In the High Court at Calcutta
Criminal appellate Jurisdiction
Appellate Side
Present:
The Hon’ble Justice Asha Arora

C.R.A. No. 99 of 1995

Substituted appellants:
1.

Manju Dutta

2. Somnath Dutta

3. Ramen Dutta

4. Pinki Dutta

(legal heirs of the deceased
appellant Subal Chandra Dutta)

Versus

The State of West Bengal

For the substituted appellants : Mr. Kumar Jyoti Tewari, Advocate
Mr. Manas Kumar Das, Advocate
Mr. Tarun Jyoti Tewari, Advocate

For the State : Ms. Debjani Sahu, Advocate

Heard on : 15.02.2017, 16.02.2017, 22.02.2017,
23.02.2017, 24.03.2017, 30.03.2017
13.04.2017

Judgment on : 19th April, 2017

Asha Arora, J.:

1. A girl of tender age was sexually abused by a depraved

man in an incident which occurred on 2nd August, 1994 in

the precinct of Bangur Institute of Neurology.

2. Keeping in mind the object of preventing social

victimisation or ostracism of a victim of sexual offence for

which section 228A of the Indian Penal Code has been

enacted stating that the name of such a victim shall not be

indicated in the judgement, I think it appropriate to refer to

her as ‘the victim’.

3. This appeal is directed against the judgement and order

dated 29th March, 1995 and 30th March, 1995 passed by the

learned Additional Sessions Judge 9th Court Alipore in

Sessions Trial No. 1(2) 1995 convicting the accused Subal

Chandra Dutta for the offence punishable under section

376/511 of the IPC and sentencing him to suffer rigorous

imprisonment for a period of three years and to pay a fine of

Rs. 250/- in default of which to suffer rigorous imprisonment

for a further period of fifteen days for the aforesaid offence.

4. Bereft of unnecessary details, the case of the

prosecution as narrated by the victim in her First Information

Statement dated 2nd August, 1994 (exhibit 1/1) is as follows:
On 2nd August, 1994 in the morning the victim, aged

about 10 years went to Bangur hospital accompanied by

her mother and grand-mother. The victim was sitting in

the hospital with her grand mother while her mother

went to get a ticket. At that time a dark complexioned

man (identified as the accused) approached the victim

and spoke to her affectionately whereafter he took her to

a room nearby on the pretext of giving her cooked rice.

The accused then asked the victim to lie down on the

cot while he was preparing rice in a pot of boiling water.

Thereafter the accused forcibly removed the victim’s

pants as well as his own and started making contact of

his male organ with her private part. He then started

pushing his urinary organ into the victim’s rectum.

When she tried to cry the accused pressed her mouth

and threatened to beat her if she disclosed the incident

to her mother. Thereafter the accused started wearing

his pants and the victim ran out of the room. She then

narrated the incident to her mother in presence of her

grand mother and complained of pain in her urinary
organ. According to the victim the incident occurred at

about 9.00/9.30 a.m.

5. The verbal statement of the victim was reduced into

writing by S.I Amalesh Kumar Das (PW15) on the same date

and on the basis thereof, Bhawanipur P.S Case No. 376 dated

2nd August, 1994 was registered under section 376 IPC

against the accused Subal Chandra Dutta. After conclusion of

investigation charge sheet was filed against the accused

under section 376 IPC. The Trial Court framed the charge for

the offence punishable under section 376 IPC against the

accused. Being so arraigned, the accused pleaded not guilty

to the indictment and claimed to be tried.

6. In the course of trial prosecution examined sixteen

witnesses. PW1 is the victim. PW2 is the victim’s mother.

PW3 is the aunt of PW2 who had accompanied the victim and

her mother to Bangur hospital on the date of the incident.

PW4 is the Ward Master attached to Bangur Institute of

Neurology. PW5 is a Group D assistant attached to the said

hospital. He is a formal witness in whose presence an
attendance register of the hospital was seized by the police.

PW6 Dr. Rabindra Basu was attached to NRS Medical College

as Professor and Head of the Department of Forensic and

State Medicine. He examined the victim on 2nd August, 1994.

He also examined the accused on the following day. PW7 is a

witness of seizure who testified regarding the seizure of a

heater and a pot of boiled rice in his presence from a room in

the outdoor department of Bangur Institute of Neurology. He

also deposed regarding the seizure of a ‘jangia’ from the

accused in his presence. PW8 is another seizure witness. PW9

was the Deputy Superintendent of SSKM Hospital Calcutta on

the date of the incident. He identified the accused as a driver

attached to Bangur Institute of Neurology which was under

the same management as SSKM Hospital. PW10 is a Group D

Assistant of Bangur Hospital who was on duty in the out door

department on the date of the incident. This witness was

declared hostile by the prosecution. PW11 was attached to

the aforesaid hospital as a Ward Master on the date of

incident. He identified the attendance register of Bangur

Institute of Neurology for the month of August 1994 which

included the name of the accused Subal Dutta, a driver of the
said hospital. PW12 is a constable cum photographer

attached to the Detective Department, Lal Bazar. PW13 and

PW14 were tendered by the prosecution for cross-

examination. PW15 S.I Amalesh Kumar Das recorded the

statement of the victim which was treated as the FIR (exhibit

1/1) and on the basis thereof, he registered the case against

the accused. This Police Officer also investigated the case and

submitted the charge sheet. PW16 is a constable-cum-plan

maker attached to the detective department of Calcutta

Police. As per direction of the Investigating Officer he visited

the place of occurrence and prepared a rough sketch on the

basis of which he prepared the final plan (exhibit 10). Besides

the witnesses referred, prosecution brought on record several

documents which were tendered in evidence.

7. Defence version is innocence, complete denial of the

prosecution case and false implication of the accused due to

dispute with the hospital staff. No evidence has been adduced in

support of the defence plea.

8. After hearing the learned counsel for the parties and

upon analysing the evidence on record, the learned trial Judge

found the accused guilty of the offence punishable under section

376/511 IPC and accordingly convicted and sentenced him as

aforesaid.

9. Aggrieved, the accused preferred this appeal. At this

juncture it is significant to mention that during the pendency of

the appeal the accused/appellant reportedly died on 23rd

January, 2013. On 19th February, 2015 the wife of the deceased

appellant, his two sons and a daughter filed an application

before this court for substitution (after setting aside the

abatement of the appeal) along with an application under section

5 of the Limitation Act. Vide order dated 4th July, 2016 passed in

CRAN 603 of 2015 and CRAN 604 of 2015 the delay in filing the

application for substitution was condoned and the aforesaid

petitioners were allowed to be substituted in place of the

deceased appellant.

10. Assailing the impugned judgement and order of

conviction on multifarious counts, Mr. Tewari, learned advocate
appearing for the substituted appellants strenuously argued that

the evidence of the victim girl is an embellished and improved

version which cannot be relied upon. It has further been

contended that there was no FIR of the incident as the case was

initiated on the basis of the statement of the victim recorded by

the police officer who held investigation. Learned counsel for the

substituted appellants sought to impress that the investigation

was biased and lackadaisical. There was no prayer for recording

the statement of the victim under section 164 CrPC nor did the

Investigating Officer make any prayer for T.I parade of the

accused. The charge sheet was submitted within a short span of

time without waiting for the FSL report which was received

subsequently. The other contention raised on behalf of the

appellants is that some of the vital witnesses were withheld so

an adverse presumption may be drawn against the prosecution

under section 114 illustration (g) of the Evidence Act.

11. I am not impressed with the argument that exhibit 1/1

(FIR) is a mere statement of the victim recorded by the

Investigating Officer under section 161 CrPC which cannot be

treated as the FIR. From the evidence of PW15 SI Amalesh
Kumar Das it transpires that on the date of the incident while he

was the duty officer of Bhawanipur PS and was proceeding

towards PG dead house on the basis of an information regarding

unnatural death of one Bula Das, a constable named Nihar

Chakraborty intimated him that a disturbance was going on in

the outdoor department of Bangur Institute of Neurology.

Accordingly PW15 went to the first floor of the hospital

accompanied by the Deputy Superintendent and the Ward

Master where the female child (victim) and one driver Subal

Dutta (accused) were identified to him. PW 15 then interrogated

the accused as well as the victim, her mother Bharati (PW2) and

Bharati’s aunt (PW3). Thereafter PW15 recorded the statement of

the victim which was read over to her and she signed on it.

PW15 affirmed in his cross-examination that he reduced into

writing whatever was stated by the victim regarding the incident.

The victim (PW1) and her mother (PW2) have also testified in

their evidence regarding the aforesaid fact. It is further evident

from the testimony of PW15 that the case was registered on the

basis of the recorded statement of the victim. No suggestion was

given to the victim or to her mother in cross-examination

assailing the aforesaid First Information Statement (exhibit 1/1)
or that no such statement was made by the victim nor was it

suggested to PW15 in cross-examination that the statement was

fabricated subsequently by him. On the contrary, it was

suggested to PW2 and PW15 in cross-examination that the

accused has been falsely implicated in this case. This suggestion

does not indicate that the accused disputed the first information

statement on the ground that it has been concocted by the

Investigating Officer for the purpose of this case. This apart,

there is no illegality in treating the statement of the victim as the

FIR.

12. Equally untenable is the argument that the evidence of

the victim is an improved version of the incident as narrated in

the FIR. Needless it is to say that the FIR is not an encyclopedia

of the entire case. It need not contain an exhaustive account of

the incident. Exhibit 1/1 is the FIR which contains all the

essential and relevant details of the incident. The fact that the

victim gave a few more details in her testimony does not render

her evidence doubtful on the ground that there is improvement

or exaggeration.

13. There is also no merit in the submission that

investigation was biased, perfunctory and lackadaisical. It

has been well settled by a catena of decisions of the Apex

Court that even if investigation is faulty or defective the rest

of the evidence must be scrutinized independently of the

impact of the flaws in the investigation. In the case at hand,

the learned counsel for the substituted appellants could not

persuade me to hold that there were lapses in investigation

which render the prosecution case doubtful. The fact that

there was no prayer for recording the statement of the victim

under section 164 CrPC is a fault on the part of the

Investigating Officer which cannot be a ground for

disbelieving the prosecution case. The true test is whether the

accused has been prejudiced due to faulty investigation and

not the mere fault in the investigation. If the prosecution

evidence is held to be true and the accused had a full say in

the matter, conviction cannot be refused on the ground of

irregularities or lapses in investigation.

14. The argument that the accused should have been

placed in the T.I parade also does not hold good for the simple
reason that the identity of the accused is not in doubt as is

evident from the testimony of the victim who specifically and

unequivocally identified him to her mother (PW2) at the earliest

opportunity when immediately after the incident he was leaving

the room (place of occurrence). PW2 has also testified regarding

the aforesaid fact that her daughter pointed out to that man

who was then coming out of his room. Significantly, PW3 also

identified the accused as the man who took the victim to the

room. PW9 the Deputy Superintendent of the said hospital also

testified in his evidence that on the date of the incident at about

10.30 a.m the mother of the female child narrated the incident

to him and on query by him that child pointed out and identified

the accused. Nothing could be brought on record to show that

the accused has been falsely implicated as an after thought. It is

in the evidence of PW2 and PW3 that when PW2 raised cries, the

accused was apprehended and assaulted by some people who

were in the hospital. This fact finds corroboration in the

evidence of PW4 and PW11. PW15 SI Amalesh Kumar Das

stated in his evidence that the victim identified the accused

against whom she made the statement on the date of the

incident. The presence of the accused at the place of occurrence
on the date and time of incident has not been disputed as is

evident from the answers given the accused during his

examination under section 313 CrPC. It is also not in dispute

that the accused was a driver attached to Bangur Institute of

Neurology at the relevant time. No suggestion was given in

cross-examination to the victim or to any of the witnesses that

someone else had committed the offence. Referring to the cross-

examination of PW11 learned counsel for the appellants sought

to impress that on the date of the incident there were two

drivers in the hospital. I am afraid that the plea of mistaken

identity has not been taken by the accused anywhere in course

of cross-examination of the witnesses or during his examination

under section 313 CrPC. The plea of false implication taken by

the accused by way of suggestions given in cross-examination to

PW1, PW2, PW3 and PW15 remained unsubstantiated. No

motive could be attributed to any of these witnesses for bringing

a false charge of sexual assault against the accused. Nothing

could be brought on record by the accused to show that any of

these witnesses had an axe to grind against him.

15. It is settled law that the evidence of a victim of sexual

assault is entitled to great weight absence of corroboration

notwithstanding. In the present case the victim is a child

who, according to the FIR was 10 years old at the time of the

incident. The victim’s mother (PW2) also gave out her age as

10 years. No suggestion was given to PW2 in cross-

examination disputing the age of the victim. Needless it is to

say that the evidence of a child witness can form the basis of

conviction if the same is found to be credible and truthful.

The testimony of a child witness can be relied upon if the

court is satisfied that the child understands the questions put

to her and is capable of giving rational answers. In the case at

hand, the manner in which the child witness (PW1) narrated

the incident in court testifies to her competency to depose. It

is also evident from the answers given by PW1 in response to

the cross-examination on behalf of the accused that she had

sufficient understanding and adequate intellectual capacity to

narrate the incident. The victim (PW1) recounted her ordeal

coherently in her evidence in the following manner which is

quoted hereunder:

“The occurrence took place before the last

Durga Puja. As I had pain in my head so I was taken to

hospital by my mother and dida. I was seated beside my

dida and my mother went elsewhere to collect photograph

relating to my head. Then that man (identifies the

accused) came to me and asked my name and address and

I then told my name and address and thereafter that man

asked me as to whether I take rice but I did not give any

reply and then that man took me to his room

To court – that room is at some distance from

the place where I was seated with my dida.

At that time I found that in his room water was

boiling for preparation of rice. That man then asked

me to sit on his bed. Then he after washing the rice

poured rice into the boiling water and then opened

my wearing pant and that man also opened his own

pant and then he penetrated his male organ into my

female organ and thereafter he also penetrated his

male organ into my rectum and thereafter I found

discharge of some whitish substance from his male

organ. I was lying on his bed as stated before that
man did all these things upon me. I had then pain in

my female organ. I then cried but my mouth was

closed by that man. That man further told me not to

disclose that matter to my mother. I then told him

that I would not tell it to my mother. After

discharge of whitish substance from his male organ

that person actually wiped that substance with my

pant. At that time my mother called me by my name

and then I opened the door of that room and rushed

to my mother and then told my mother that I would

tell her one thing provided I was not beaten and

when my mother assured me that she would not

beat me I told my mother all these things.”

The child witness (victim) withstood the test of extensive and

incisive cross-examination. Being quizzed, the victim

reiterated in her cross-examination that she cried when her

pant was being removed by that man but he pressed her

mouth with his hand. The victim was repeatedly questioned

regarding the incident but no dent could be made in her

testimony which remained unscathed in cross-examination.

Nothing could be elicited in the cross-examination of the
victim to demolish her evidence or to render the same as

incredible or untrustworthy. Regarding the contradictions

and inconsistencies in the evidence of PW1 as pointed out by

the learned counsel for the substituted appellants, it has

been expressed by the Apex Court in a plethora of decisions

that as long as the core of the evidence has a ring of truth,

courts should ignore minor discrepancies in the evidence. In

the present case the victim is a child who is not expected to

possess a photographic memory of the sordid incident which

must have unnerved her. It would therefore be unreasonable

to label such a witness as untrustworthy on the ground of

minor contradictions in her evidence. In the decision reported

in (2013)12 Supreme Court Cases 796 in the case of

Mritunjoy Biswas Versus Pranab alias Kuti Biswas and

Another referred on behalf of the appellants, the Apex Court

observed that it is well settled in law that minor discrepancies

are not to be given undue emphasis and the evidence is to be

considered from the point of view of trustworthiness. The test

is whether it inspires confidence in the mind of the Court. If

an omission or discrepancy goes to the root of the matter the

defence can take advantage of the same. While appreciating
the evidence of a witness, the approach must be whether the

evidence read as a whole appears to have a ring of truth. In

the case at hand the discrepancies and inconsistencies

pointed out in the evidence are trivial in nature which do not

affect the core and substratum of the prosecution case. For

the reasons aforesaid, reference to the decision reported in

(2013)12 Supreme Court Cases 796 (Supra) is of no help to

the appellants.

16. Placing reliance upon the case of K. Venkateshwarlu

Versus State of Andhra Pradesh reported in (2012)8 Supreme

Court Cases 73 learned counsel for the appellants sought to

impress that the evidence of the victim who is a child witness is

not worthy of credence. In the decision referred it has been

observed by the Supreme Court that the evidence of a child

witness can be relied upon if the court, with its expertise and

ability to evaluate the evidence, comes to the conclusion that

the child is not tutored and his evidence has a ring of truth. In

the aforesaid case the Supreme Court expressed as follows in

the relevant paragraph 11 of the judgement which is reproduced

hereunder:

“11. Having perused the evidence of all the

witnesses, we find it difficult to rely on them. We

feel that the trial court had rightly discarded their

evidence as unworthy of reliance and the High Court

erred in taking it into consideration. This, in our

opinion, is a case where neither the evidence of the

parents of the victim PW 2 Aruna nor the evidence

of PW 2 Aruna, nor the evidence of the child

witnesses, who claim to have witnessed the

incident, nor the medical evidence supports the

prosecution case. Besides, all the pancha witnesses

have turned hostile, a fact which we have noted with

some anguish. A needle of suspicion does point out

to the appellant because he is a police constable and

in a small village where the incident took place,

witnesses may be scared to depose against him

because of his clout. There are certain

circumstances which do raise suspicion about the

appellant’s involvement in the crime. The children

were playing on the terrace of the appellant. The

appellant was not arrested by the police till 4-9-

1998. The demeanour of PW 2 Aruna, the tears in

her eyes, her walking out of the court after looking

at the appellant, pricks the judicial conscience. But

convictions cannot be based on suspicion,

conjectures and surmises. We are unable to come to

a conclusion that the trial court’s judgment is

perverse. For want of legal evidence we will have to

set aside the appellant’s conviction and sentence.

But we make it clear that we are doing so only by

giving him benefit of doubt.”

It is evident that the decision referred (supra) is clearly

distinguishable on facts from the case at hand wherein the

victim (PW1) narrated the incident coherently, unequivocally

and convincingly. Nothing could be elicited in her cross-

examination to disbelieve her evidence. I could not be

persuaded to believe that the evidence of the child victim was

a tutored impact given under threat, coercion or inducement.

No plausible motive could be assigned to PW1, PW2 and PW3

for falsely implicating the accused in this case. Nothing could

be brought on record by accused to show that there was any

animus between him and the victim’s mother. It was in vain
suggested in cross-examination to the victim’s mother (PW2)

and PW3 the mother’s aunt that they have falsely implicated

the accused at the instigation of the hospital staff due to

dispute between them. But no iota of evidence could be led by

the accused in support of this plea. Curiously enough, even

during his examination under section 313 CrPC accused

made no such statement that there was dispute between him

and the hospital staff who had instigated the mother of the

victim to foist a false case against him. Above all, it is

incredible and improbable that the parents and relatives of a

girl of tender age would bring dishonour to their family and

put their reputation at stake by inventing a false charge of

sexual assault against a person at the instigation of someone.

This apart, the plea of false implication is completely ruled

out in view of the fact that the medical evidence of PW6 Dr.

Rabindra Basu as well as the report of FSL and the serologist

support the prosecution version. In this context it is

significant to mention that the parents and relatives of a

victim would certainly not bring a false charge of sexual

assault against an innocent person to protect the real culprit.

17. I am also unable to accept the argument on behalf of

the appellants that the post occurrence behaviour of the

victim (PW1) was unnatural which is a ground to disbelieve

her evidence. Emphasis was laid on the fact that the victim

did not appear to be traumatised or shocked. Her behaviour

post occurrence was normal. In this context reference to the

case of Shivasharanappa and Others Versus State of

Karnataka reported in (2013)5 Supreme Court Cases 705 is

of no assistance to the appellants. There is no legal principle

of universal application as to how a person will react in a

given situation. The same set of reaction cannot be expected

from different people. In the aforesaid decision, while dealing

with the behaviour of witnesses, in paragraph 22 of the

judgement the Supreme Court observed as follows:

“22. Thus, the behaviour of the witnesses or their

reactions would differ from situation to situation and

individual to individual. Expectation of uniformity in the

reaction of witnesses would be unrealistic but the court

cannot be oblivious of the fact that even taking into

account the unpredictability of human conduct and lack

of uniformity in human reaction, whether in the
circumstances of the case, the behaviour is acceptably

natural allowing the variations. If the behaviour is

absolutely unnatural, the testimony of the witness may

not deserve credence and acceptance.”

In the case at hand it cannot be said by any stretch of

imagination that the behaviour of the victim was absolutely

unnatural. On the contrary, a child of 10 years behaved quite

naturally by narrating the incident to her mother immediately

after the incident. In the case of Rana Partap Versus State of

Haryana reported in (1983)3 Supreme Court Cases 327 the

Apex Court expressed that to discard the evidence of a

witness on the ground that he did not react in any particular

manner is to appreciate the evidence in a wholly unrealistic

and unimaginative way.

18. The victim (PW1) testified in her evidence that when her

mother called her by her name she rushed to her after opening

the door of the room and narrated the incident to her mother.

The victim’s dida (PW3) was then seated on the bench at the

relevant time. The victim further stated that the man (accused)

was then leaving that place after locking his room. Significantly,
it has been elicited in the cross-examination of PW1 that the

room where she was taken by that man was near the place

where she was seated with her dida. PW10 a Group D assistant

of Bangur Hospital deposed regarding the aforesaid fact by

stating that the rest room of the drivers is situated at a distance

of about 6 to 7 cubits from the ticket counter but the inside of

the room is not visible from the counter. The testimony of the

victim finds complete corroboration in the evidence of PW2 and

PW3 who, being informed by the victim narrated the incident in

the same manner as PW1. PW2 stated in her evidence that her

daughter pointed out to that man who was then coming out of

his room after locking the door. PW3 corroborated the version of

the victim by stating that in her presence she (victim) narrated

the incident to her mother and at that time the accused was

leaving his room after locking the door. It is pertinent to

mention that no material contradiction could be pointed out in

the evidence of PW2 and PW3 in relation to their statement

under section 161 CrPC. In fact nothing could be elicited in the

cross-examination of these two witnesses to render their

evidence untrustworthy.

19. The evidence of sexual assault upon the victim is

corroborated by the medical evidence of PW6 Dr. Rabindra

Basu who medically examined the victim on the date of the

incident at 6.30 PM. According to PW6 the victim complained

of pain in her private parts. On examination whitish mucoid

substance was seen in the vestibule-specially at the upper

part. Though PW6 could not opine whether the aforesaid

substance was semen, the report of the Serologist and the

FSL report (exhibits 6 and 8) relating to examination of the

victim’s seized ‘jangia’ prove that the whitish substance was

human semen. At this juncture it is significant to mention

that the victim’s evidence that there was discharge of whitish

substance from the male organ which was wiped with her

pant has been corroborated by exhibits 6 and 8. This fact also

finds place in the FIR (exhibit 1/1). Reverting to the medical

evidence of PW6 Dr. Rabindra Basu, on examination of the

victim he noted the following injuries:

“1) one bruise, reddish in colour over the vestibule

just right lateral, to vaginal orifice 5″ X 4” at 8′ O

clock position,

2) one bruise reddish in colour 3″ X .2″ over left side

of the vestibule just outside the vaginal opening at

2′ O clock position,

3) gross congestion around the vaginal orifice with

tenderness (+ + +).”

PW6 opined that the genital signs as noted were

strongly suggestive of attempted forcible sexual

intercourse,

PW6 elucidated in his evidence that when full penetration was

not done but an attempt was made with force then some

injuries may be noted around the vaginal orifice and that is

why he noted in his report ‘attempted forcible sexual

intercourse’. In response to the court’s query PW6 clarified

that full sexual intercourse does not necessarily imply full

penetration. PW6 opined unequivocally that the injuries

detected on the private part of the victim are possible from

the penis of the size and the kind which he found while he

examined accused Subal Dutta. It is pertinent to mention

that PW6 had examined the accused on the following day that

is, on 3rd August, 1994 and found him to be capable of sexual

intercourse. It is clear from the foregoing discussion that the
medical evidence of PW6 is in conformity with the prosecution

case.

20. These is no merit in the argument that the detection of

human semen on the seized ‘jangia’ of the victim as per exhibits

6 and 8 is not sufficient to connect the accused with the offence

since the semen group could not be determined by the

Serologist. This is a relevant piece of evidence to be considered

along with the other incriminating evidence which is available in

abundance against the accused. It is worthwhile to mention that

in her statement (exhibit 1/1) recorded within a few hours of the

incident the victim spoke about the discharge of whitish

substance from the male organ of the accused which he wiped

with her pant. Even in her evidence she (PW1) testified

regarding the aforesaid fact which finds support from the

medical evidence of PW6 as well as from exhibits 6 and 8.

21. The factum of seizure of a heater with coil and a pot

(‘handi) containing cooked rice from the driver’s room in the

hospital vide seizure list dated 2nd August, 1994 (exhibit 4)

lends tremendous credence to the prosecution case. In the
FIR (exhibit 1/1) as well as in her evidence as PW1 the victim

stated that the accused was preparing rice in a pot in the

room in which he took her. The Investigating Officer (PW15)

testified regarding the seizure by stating in his evidence that

on the date of the incident he visited the place of occurrence

as pointed out by the victim and found that it is a small room

wherefrom he seized one pot for cooking rice and a heater

with coil. In his examination under section 313 CrPC the

accused did not deny the seizure of the aforesaid articles from

his room on the date of the incident. The existence of a cot in

the aforesaid room (place of occurrence) as testified by PW1 in

her evidence and as stated by her in the FIR finds

corroboration in the evidence of PW12 a constable-cum-

photographer attached to the Detective Department, Lal

Bazar who took photographs of the room as well as the bed in

the said room.

22. Another piece of incriminating evidence which connects

the accused with the offence is the fact that immediately after

the incident he was trying to flee away. Though this

circumstance in isolation cannot form the fulcrum of a guilty
mind, it is a relevant piece of evidence to be considered along

with the other evidence herein above discussed. It transpires

from the evidence of PW1, PW2 and PW3 that the accused

was trying to leave the room by locking its door when he was

confronted by PW2 who stated that initially the accused

denied having done anything to the victim but when pressed

by PW2 the accused begged apology. Hearing the cries of PW2

some people came and apprehended the accused who was

assaulted by them. PW4 and PW11 have corroborated the

factum of assault upon the accused. The medical evidence of

PW6 Dr. Rabindra Basu who examined the accused and

found injuries on his person support the prosecution version.

In response to question no. 2 during his examination under

section 313 CrPC accused admitted the fact that he was

leaving the room after locking it but took the plea that on

hearing a GDA call he was just getting out of his room and

was locking it when 5/6 boys came and called whereafter

they assaulted him and took him to the room of N.K.

Bhattacharjee. According to the accused, PW2 brought those

5/6 boys in whose favour he could not issue tickets for C.T.

Scan as they had no reference. Evidently the accused took
recourse to a futile plea of desperation which could not be

substantiated by any evidence.

23. I am also unable to accept the contention that

prosecution case becomes doubtful due to non-seizure of the

lock and key of the room of the accused and the fact that the

existence of the bench on which the victim and her dida were

seated has not been shown in the sketch map. In his

examination under section 313 CrPC, accused admitted in

response to question no. 2 (herein before referred) that he was

leaving the room after locking the door. In view of such

admission by the accused non seizure of the lock is of no

consequence. The evidence of PW1 and PW3 that they were

seated on a bench near the ticket counter has not been

challenged in cross-examination. No suggestion was given to

these two witnesses in cross-examination denying the

existence of the bench. There is therefore no substance in the

aforesaid submission on behalf of the appellants. This apart,

on the face of cogent, credible and unimpeachable evidence

herein above discussed the contention raised on behalf of the

appellants does not affect the prosecution case.

24. As regards non examination of Dr. Manoj Bhattacherjee,

staff nurse Ratna Bhattacherjee, local witnesses Sailen Dutta

and Banamali Garai, I am of the view that on this count

prosecution case is not even remotely affected. Being quizzed

in this regard, the Investigating Officer stated in his cross-

examination that the aforesaid persons were not cited as

witness since he did not get any positive statement from

them. There is no provision of law which necessitates

examination of all the witnesses by the prosecution. If

prosecution does not examine a witness it is always open to

the accused to cite and examine him as a defence witness.

Learned counsel for the appellants could not show how the

accused has been prejudiced due to non examination of the

aforesaid witnesses. Reference to the case of Tomaso Bruno

and another Versus State of Uttar Pradesh reported in

(2015)7 Supreme Court Cases 178 finds no application to

the case at hand being distinguishable on facts. In Tomaso

Bruno’s case (Supra) it was observed that the CCTV footage

would have been the best evidence in the circumstances of

the case to prove whether the accused remained inside the
hotel room and whether they were responsible for the

commission of the crime. Failure to produce the CCTV footage

raised serious doubt in the prosecution case and in the

circumstances the Court was of the view that it was a fit case

to draw an adverse inference against the prosecution under

section 114 illustration (g) of the Evidence Act. In our case at

hand the witnesses who were not examined certainly do not

fall within the category of best evidence which in my view is

already on record. Therefore the question of drawing an

adverse presumption against the prosecution does not arise.

The cumulative effect of the evidence discussed leads to the

only inevitable conclusion that it was none else but the

accused who had committed the offence.

25. Lastly Mr. Tewari urged that a sympathetic view may be

taken to enable the substituted appellants to get the death

benefits of the deceased appellant. Considering the nature of

the offence, the circumstances of its commission as well as

the helpless and pitiable plight of the child victim who

suffered ignominy in the hands of the offender, I am of the
firm view that it would be a travesty of justice to show

sympathy in such a case.

26. In the ultimate analysis, I am unhesitant in concluding

that the appellants failed to make out any case for

interference with the impugned judgement and order of

conviction and sentence passed by the trial court.

27. Consequently the appeal is dismissed.

28. Lower court records along with a copy of this judgement

be sent forthwith to the trial court.

29. Urgent photostat certified copy of this judgement if

applied for, shall be made available to the parties upon

compliance of requisite formalities.

(Asha Arora, J.)

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