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Anwar Hossain Maishan vs The State Of Tripura on 4 November, 2019

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HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) No.31 of 2016

Anwar Hossain Maishan,
son of late Abdul Khalek Maisan,
resident of Sreemantapur,
(near Sonamura Motor Stand),
P.S. Sonamura, District: Sepahijala Tripura

—-Appellant(s)
Versus

The State of Tripura
—-Respondent(s)

For Appellant(s) : Mr. P.K. Biswas, Sr. Adv.

Mr. P. Majumder, Adv.

For Respondent(s) : Mr. Ratan Datta, P.P.

Date of hearing : 22.08.2019

Date of judgment
order : 04.11.2019
Whether fit for
reporting : YES

HON‟BLE MR. JUSTICE S. TALAPATRA
HON‟BLE MR. JUSTICE ARINDAM LODH

Judgment Order

[Talapatra, J]

This is an appeal by the convict [hereinafter referred to

as the appellant] from the judgment and order of conviction and

sentence dated 18.05.2016 delivered in Case No.

Special(POCSO)01 of 2015. By the said judgment, the appellant

has been convicted under Sections 366 and Section506 of the IPC and

under Section 4 of Protection of Child from Sexual Offences Act,

2012 [the POCSO Act, in short].

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2. Pursuant to the said judgment of conviction, the

appellant has been sentenced to suffer rigorous imprisonment for

life and fine of Rs.10,000/- with default stipulation for committing

offence punishable under Section 4 of the POCSO Act, the rigorous

imprisonment for ten years and fine of Rs.5000/- with default

stipulation for committing offence punishable under Section 366 of

the IPC and rigorous imprisonment for two years for committing

offence punishable under Section 506 of the IPC with direction

that the sentences will run consecutively.

3. The genesis of the prosecution case is rooted in the

complaint filed by one Selina Aktar on 24.02.2015 revealing that

on 21.02.2015, she was called by the Sonamura English Medium

School where her minor daughter [the name is withheld for

protecting her identity] was studying in Class-VI, to bring to her

notice that on 14.02.2015, the valentine day, someone had sent

chocolate for her daughter. She was advised to be cautious. After

persuading her daughter repeatedly, she came to know that the

appellant who used to come to their house to park his bike and on

several occasions, he had advanced unfair proposal. As her

daughter did not give in, she was threatened. On 28.01.2015,

when she was on her way to her school, the appellant kidnapped

her daughter by a car [Indica] from a place near the Rainbow Club

at Sonamura and after that, the appellant took her daughter,

hereinafter referred to as the victim, to his relative‟s house under

threat. Even, she had to participate in the marriage ceremony in

presence of Kaji. The other two persons were also in the
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conspiracy. Her minor daughter had somehow released her from

the appellant and managed to come back at home at 4.30 p.m.,

whereas the kidnapping took place at 10/10.30 a.m. The appellant

threatened the victim showing the video clip that was taken when

one woman removed her apparel and made her wear Saree etc.

Out of fear, the victim did not inform the said occurrence to

anyone. On the day of revelation i.e.24.02.2015, the complaint

was filed.

4. Based on the said complaint, Sonamura P.S. Case

No.2015 SNM023 under Section 366/Section376(2)(1)/Section506/Section34 of the IPC

and Section 4 of the POCSO Act was registered and taken up for

investigation. On completion of investigation, the police report was

filed to the Special Court [under POCSO Act] and in due course,

the charge against the appellant was framed under Sections 366,

Section376(2)(i) of the IPC and 506 of the SectionIPC and Section 4 of the

POCSO Act. The appellant having pleaded not guilty and claimed

to be tried. Subsequently, the charge was framed also under

Sectionsection 366A and Section120B of the IPC, to which the appellant pleaded

not guilty and claimed to face the trial.

5. In order to substantiate the charge, the prosecution

adduced as many as fourteen witnesses including the victim [PW-

1], the informant [PW-2], the Medical Officer [PW-11] and the

Investigating Officer [PW-13]. That apart, as many as ten

documentary evidence was introduced by the prosecution

including the birth Certificate of the victim [Exbt.3] and the

Medical Examination Report [Exbt.6]. Even though, there was no
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defence witness, but at the instance of the defence, seven

excerpts of the statement of the victim and other two persons

have been admitted in the evidence as Exbts.A to J.

6. It is to be mentioned that statement of some of the

witness including the victim were also recorded under Section

164(5) of the Cr.P.C. After the prosecution evidence was closed,

the appellant was examined under Section 313 of the Cr.P.C. but

the appellant repeated his plea of innocence and stated that the

evidence which tends to incriminate him is false.

7. Having appreciated the evidence and on hearing, the

trial court convicted the appellant under Section

366/Section376(2)(i)/Section506 of the IPC and under Section 4 of the POCSO

Act and sentenced as stated above. The appellant was acquitted

from the other charge but it may be noted that no separate

sentence for committing the offence punishable under Sectionsection

376(2)(i) of the IPC has been imposed as the sentence has

awarded under Section 4 of the POCSO Act. The trial Judge, while

returning the finding of conviction, has observed as follows :

“So far careful perusal of the evidence on record, I am of
the opinion that the prosecution side has successfully
proved that on 28th January, 2015 accused Anwar
Hossain Maishan had kidnapped the victim girl [the name
is withheld for protecting her identity] with intent to
compel her to marry accused Anowar Hossain Maishan
and that accused Anowar Hossain Maishan forcefully
committed rape upon the victim girl inspite of having
knowledge that the victim girl [the name is withheld for
protecting her identity] was a child of below 12 years of
age and that accused Anowar Hossain Maishan had been
threatening to kill the victim girl and her younger sister
in case of disclosure of the alleged incidents to anyone by
the victim girl.”

8. Mr. P.K. Biswas, learned senior counsel appearing for

the appellant has submitted that the finding of conviction has

emerged from inappropriate appreciation of evidence and on
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assumptions which do not have roots in the evidence. It is

unbelievable that the victim suppressed the whole occurrence

from 28.01.2015, the day of occurrence to 24.02.2015 as she had

revealed the occurrence to her mother [PW-2]with any noticeable

change in the circumstances.

9. Mr. Biswas, learned senior counsel has further

submitted that taking the victim away to the place called

Rangamatiya where the victim was subjected to sexual intercourse

and purported marriage where the local people had participated. If

the said episode is not proved, the appellant cannot be made

liable for the offence as alleged in the complaint. The charge may

stand unsubstantiated on an overall appraisal of the evidence. Mr.

Biswas, learned senior counsel has submitted that there is no

chain of evidence or any evidence to prove the occurrence at

Rangamatiya [the second place of occurrance].

10. Mr. Biswas, learned senior counsel has submitted that

the entire prosecution case is structured on the testimony of the

victim. The victim while testifying has stated that there was lot of

persons some of whom was identified by her but they were not

cited as the witness. Even the mother of the victim [PW-2] has

testified that she heard about the marriage of the victim with the

appellant, but she did not disclose the source of such information

in the trial. Such statement has been slighted by the trial Judge. If

the due value is provided to that statement, it would be apparent

that the complaint was filed belatedly with an oblique motive to

frame the appellant. Even the episode of giving the chocolate
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cannot be used against the appellant as there is no proof that the

appellant sent those chocolates. In this regard, the testimony of

PW-3 has been referred to. PW-3 has stated in the trial as under :

“One Joypal Saha, a student of Class-XI handed over
those chocolates to Laxmi with a request to deliver the
said to …. [the name of the victim is withheld], a student
of Class VI.”

Even the testimony of PW-4, a teacher of the

Sonamura English Medium School was not taken in due

consideration when she deposed :

“Some guardians of the students of class-VI met with me
and told me that their children were talking about the
marriage of … [the name of the victim], another student
of Class-VI.”

11. PW-4 after consulting with the other teachers asked the

victim girl to come with her mother [PW-2] on the next date.

Thereafter, PW-2 has stated in the trial that on 21.2.2015 she met

her and PW-4 narrated the incident to her and asked her about

the genuineness of such information. But PW-2 expressed her

ignorance about the incident/occurrence. She did no ritual of the

marriage.

12. Mr. Biswas, learned senior counsel has submitted that

PW-2 has deliberately suppressed the knowledge in the complaint

and with ulterior motive framed the appellant in the case. Mr.

Biswas, learned senior counsel has submitted that the prosecution

story is based not on reliable information, falsification and the

imaginary episodes at Ranagamatiya which could not be proved in

the trial.

13. To buttress his submission, Mr. Biswas, learned senior

counsel has relied on a decision of the apex court in Dayal Singh
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and Ors. Vs. State of Uttaranchal reported in AIR 2012 SC

3046 where the apex court has enunciated that where the eye-

witness account is found credible and trustworthy, medical opinion

pointing to alternative possibilities may not be accepted as

conclusive. The expert witness is expected to put before the Court

all materials inclusive of the data which induced him to come to

the conclusion and enlighten the court on the technical aspects, so

that the court, although not an expert, may form its own

judgment on those materials after giving due regard to the

expert’s opinion because once the expert opinion is accepted, it is

not the opinion of the medical officer but that of the Court [see

SectionMadan Gopal Kakad v. Naval Dubey and Anr. reported in

(1992) 3 SCC 204]. The essential principle governing expert

evidence is that the expert is not only to provide his reasons to

support his opinion, but the result should be directly

demonstrable. The court is not to surrender its own judgment to

the opinion of the expert. The court should assess the expert

evidence like any other evidence. If the report of an expert is

slipshod, inadequate or cryptic and relevant information are not

placed with his report, his opinion will be of no use. It is required

of an expert, whether a government expert or private, that his

opinion to be accepted when materials which led him to come to

the inference so that the court, not an expert, may form its own

opinion on the aspect. If the expert in his evidence does not place

the whole lot of similarities or dissimilarities which influenced his

mind to come to a particular conclusion, which he stated in the
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court, then he fails in his duty to take the court into confidence.

The court is not to believe the ipse dixit of an expert. Indeed the

value of the expert evidence consists mainly on the ability of the

witness by reason of his special training and experience to point

out the court such important facts as the court otherwise might

fail to observe and in so doing the court is enabled to exercise its

own view or judgment respecting the cogency of reasons and the

consequent value of the conclusions formed thereon. The opinion

is required to be presented in a convenient manner and the

reasons for a conclusion based on certain visible evidence,

properly placed before the Court. In other words, the value of

expert evidence depends largely on the cogency of reasons on

which it based.

In Dayal Singh(supra), the apex court had occasion to

dwell on the expert testimony and its evidentiary extent, and

observed as under :

“32. The purpose of expert testimony is to provide the
trier of fact with useful, relevant information. The
overwhelming majority rule in the United States, is that
an expert need not be a member of a learned profession.
Rather, experts in the United States have a wide range of
credentials and testify regarding a tremendous variety of
subjects based on their skills, training, education or
experience. The role of the expert is to apply or supply
specialized, valuable knowledge that lay jurors would not
be expected to possess. An expert may present the
information in a manner that would be unacceptable with
an ordinary witness. The common law tried to strike a
balance between the benefits and dangers of expert
testimony by allowing expert testimony to be admitted
only if the testimony were particularly important to
aiding the trier of fact. Even in United States, if the
helpfulness of expert testimony is substantially
outweighed by the risk of unfair prejudice, confusion or
waste of time, then the testimony should be excluded
under the relevant Rules, and State equally balanced.

Expert testimony on any issue of fact and significance of
its application has been doubted by the scholars in the
United States. Even under the law prevalent in that
country, the opinion of an expert has to be scientific,
specific and experience based. Conflict in expert opinions
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is a well prevalent practice there. While referring to such
incidence David H. Kaye and other authors in ‘The New
Wigmore A Treatise on Evidence – Expert Evidence’ (2004
Edition) opined as under:

The district court opinion reveals that one
pharmacologist asserted “that Danocrine more
probably than not caused Plaintiff’s death from
pulmonary hypertension,” but it describes the
reasoning behind this opinion in the vaguest of
terms, referring only to “extensive education
and training in pharmacology” and an
unspecified “scientific technique” that “relied
upon epidemiological, clinical and animal
studies, as well as Plaintiff’s medical records
and medical history…” The nature of these
studies and their relationship to the patient’s
records is left unstated. The district court
incanted the same mantra to justify admitting
the remaining testimony. It asserted that the
other experts “similarly base their testimony
upon a careful review of medical literature
concerning Danocrine and pulmonary
hypertension, and Plaintiff’s medical records
and medical history.

The court of appeals elaborated on the
testimony of two of the experts. The physician
“was confident to a reasonable medical
certainty that the Danocrine caused Mrs.
Zuchowicz’s PPH” because of “the temporal
relationship between the overdose and the
start of the disease and the differential etiology
method of excluding other possible causes.”
Yet the “differential etiology” here was barely
more than a differential diagnosis of PPH. The
causes of PPH are generally unknown and it
appears that the only other putative alternative
causes considered were drugs other than
Danocrine. It is not at all clear that such a
“differential etiology” is adequate to support a
conclusion of causation to any kind of a
“medical certainty.” The pharmacologist, not
being a medical doctor, testified “to a
reasonable degree of scientific certainty…
[that] the overdose of Danocrine, more likely
than not, caused PPH….” He postulated a
mechanism by which this might have occurred:

“I) a decrease in estrogen; 2)
hyperinsulinemia, in which abnormally high
levels of insulin circulate in the body; and 3)
increase in free testosterone and
progesterone… that… taken together, likely
caused a dysfunction of the endothelium
leading to PPH.

In sum, Plaintiff’s experts did not know what
else might have caused the hypertension, and
they offered a conjecture as to a causal chain
leading from the drug to the hypertension. This
logic would be more than enough to justify
certain clinical recommendations-the advice to
Mrs. Zuchowicz to discontinue the medication,
for example. But is it enough to allow an expert
not merely to testify to a reasonable diagnosis
of PPH, or “unexplained pulmonary
hypertension,” as the condition also is known,
but also be able to propound a novel
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explanation that has yet to be verified, even in
an animal model?

33. The Indian law on Expert Evidence does not proceed
on any significantly different footing. The skill and
experience of an expert is the ethos of his opinion, which
itself should be reasoned and convincing. Not to say that
no other view would be possible, but if the view of the
expert has to find due weightage in the mind of the
Court, it has to be well authored and convincing. Dr. C.N.
Tewari was expected to prepare the post mortem report
with appropriate reasoning and not leave everything to
the imagination of the Court. He created a serious doubt
as to the very cause of death of the deceased. His report
apparently shows an absence of skill and experience and
was, in fact, a deliberate attempt to disguise the
investigation.

34. We really need not reiterate various judgments which
have taken the view that the purpose of an expert
opinion is primarily to assist the Court in arriving at a
final conclusion. Such report is not binding upon the
Court. The Court is expected to analyse the report, read it
in conjunction with the other evidence on record and
then form its final opinion as to whether such report is
worthy of reliance or not. Just to illustrate this point of
view, in a given case, there may be two diametrically
contradictory opinions of handwriting experts and both
the opinions may be well reasoned. In such case, the
Court has to critically examine the basis, reasoning,
approach and experience of the expert to come to a
conclusion as to which of the two reports can be safely
relied upon by the Court. The assistance and value of
expert opinion is indisputable, but there can be reports
which are, ex facie, incorrect or deliberately so distorted
as to render the entire prosecution case unbelievable.
But if such eye-witnesses and other prosecution evidence
are trustworthy, have credence and are consistent with
the eye version given by the eye-witnesses, the Court
will be well within its jurisdiction to discard the expert
opinion. An expert report, duly proved, has its
evidentiary value but such appreciation has to be within
the limitations prescribed and with careful examination
by the Court. A complete contradiction or inconsistency
between the medical evidence and the ocular evidence on
the one hand and the statement of the prosecution
witnesses between themselves on the other, may result
in seriously denting the case of the prosecution in its
entirety but not otherwise.”

[Emphasis added]

14. Mr. Biswas, learned senior counsel has further asserted

that the doctor to whom the victim was taken first has not been

examined in the trial. He has submitted that the prosecution has

failed to prove the charge under Section 4 of the POCSO Act or

under Section 376(2)(i) of the IPC against the appellant. Even the

charge under Section 366A and Section506 of the IPC has not been
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proved beyond reasonable doubt. On the basis of the said

analogy, Mr. Biswas, learned senior counsel has urged this court

to set aside the judgment of conviction and the consequential

order of sentence.

15. Mr. R. Datta, learned PP appearing for the state has in

order to repel the submission of Mr. Biswas, learned senior

counsel has contended that there is nothing to disbelieve the

victim. PW-1 has been extensively corroborated by PW-2, her

mother. Even, PW-12, the Medical Officer of Sonamura CHC found

hymen of the victim was torn, healed 6 O‟ clock and she opined

that there were signs of old vaginal penetration, but the final

opinion was initially kept pending for opinion of the forensic expert

on the vaginal swab. Later on, having received the forensic report,

it transpires that seminal stains of human origin was not found,

the final opinion as reflected in Exbt.7 series is as follows :

“There were signs of old vaginal penetration and signs
are consistent with the history given.”

16. Mr. Datta, learned PP has contended that PW-12 has

confirmed the “old vaginal penetration” and in this regard, Mr.

Datta, learned PP has relevantly stated that the penetrative sexual

assault took place on 28.01.2015 at 10 a.m., whereas the medical

examination of the victim by PW-12 had taken place on

25.12.2015. Thus, it is quite natural that other signs of injury

were healed up in the meanwhile. Mr. Datta, learned PP having

referred to State of Punjab versus Gurmit Singh and Others

reported in (1996)2 SCC 384 has contended that the testimony

of the victim of sexual assault is vital and unless there are
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compelling reasons, which necessitate looking for corroboration of

her statement, the court should find no difficulty in acting on the

testimony of the victim of sexual assault alone to convict an

accused when the testimony inspires confidence and is found to be

reliable.

17. Having followed State of Maharashtra versus

Chandraprakash Kewalchand Jain reported in (1990) 1 SCC

550 in Gurmit Singh(supra) it has been observed inter alia :

“The Courts, therefore, shoulder a great responsibility
while trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The Courts
should examine the broader probabilities of a case and
not get swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which
are not of a fatal nature, to throw out an otherwise
reliable prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without
seeking corroboration of her statement in material
particulars. If for some reason the Court finds it difficult
to place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony,
short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and the
trial court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual
molestations.”

18. In sequel, relying on Gurmit Singh(supra), Mr. Datta,

learned PP has submitted that a prosecution can succeed based on

the testimony of the sole witness if the testimony inspires

confidence leaving no doubt in the mind of the court and being

above all suspicion. In this regard, Mr. Datta, learned PP has

placed his reliance on State of Haryana versus Inder Singh

and Others reported in (2002) 9 SCC 537 where the apex court

has restated the law in respect of how the testimony of the

solitary witness can be appreciated:

“There is no denial of the fact that it is not the quantity
but the quality of the witnesses which matters for
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determining the guilt or innocence of the accused in the
criminal cases. However, it is equally true that when a
case is based upon the testimony of the only witness, his
statement must be confident – inspiring leaving no doubt
in the mind of the court, being above all suspicion…”

19. Mr. Datta, learned PP has urged this court not to give

undue importance to absence of injuries or absence of seminal

stain in the vaginal swab. In this regard, he has referred a

decision of the apex court in B.C. Deva alias Dyava versus

State of Karnataka reported in (2007) 12 SCC 122 where it

has been held as under :

18. The plea that no marks of injuries were found either
on the person of the accused or the person of the
prosecutrix, does not lead to any inference that the
accused has not committed forcible sexual intercourse on
the prosecutrix. Though, the report of the Gynaecologist
pertaining to the medical examination of the prosecutrix
does not disclose any evidence of sexual intercourse, yet
even in the absence of any corroboration of medical
evidence, the oral testimony of the prosecutrix, which is
found to be cogent, reliable, convincing and trustworthy
has to be accepted.

19. Though, the FSL Report marked as Ex.C-1 pertaining
to the undergarments of the accused and the victim did
not contain any seminal stains, yet the said report cannot
be given any importance because the underwear of the
accused was taken into possession by the police on the
next day of the incident when he was arrested. There is
no evidence brought on record to show that the accused
handed over the same under wear to the police, which he
was wearing on the day of incident or he had handed
over some other underwear which was seized under
mahazer (Ex.P-5) by the police. The possibility of
absence of seminal stains on petticoat of the prosecutrix
which she was wearing at the time of the incident, could
not be ruled out due to the fact that the petticoat got
drenched in the water and the seminal stains might have
been washed away.

20. On the aspect of age of the victim whether she would

fall in the category of child or not, Mr. Datta, learned PP has relied

the testimony of the mother who has testified that on the day of

occurrence, the victim was the student of Class-VI. She had also

produced the original birth certificate [Exbt.3], admission of

which, however, was challenged by the accused as the officer who
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issued the said certificate was not adduced in the trial. From the

said birth certificate issued by the Registrar of Deaths and Births

under No.111 dated 01.10.2008 it surfaces that the victim was

born on 28.07.2003. This court has already settled the law that

the certificate issued by the Registrar, Death and Birth being the

statutory authority, falls in the category in the public document

and as such, such document can be admitted waiving the formal

proof. Even Mr. Biswas, learned senior counsel did not raise any

objection in respect of age of the victim.

21. Mr. Datta, learned PP has relied a decision of the apex

court in State of Madhya Pradesh versus Preetam reported in

AIR 2018 SC 4212 where it has been held quite remarkably as

under:

“11. In our considered view, the answer elucidated in the
cross-examination of Dr. Vasnik (PW-6) cannot be taken
as a final opinion on the age of the prosecutrix (PW-1). It
is to be relevant to note that before the trial court the
prosecution has examined Bhaulal (PW-8), Head
master/Head teacher of Primary School Chor Pind Ke Par,
District Balaghat. In his evidence, Bhaulal (PW-8) has
stated that the date of birth of the prosecutrix (PW-1)
was 16th May, 1981 which means that on the date of the
occurrence i.e. 6th March, 1993, the prosecutrix (PW-1)
was only aged about 12 years. The trial court has neither
acted upon the evidence of Bhaulal (PW-8) nor on the
school certificate on the ground that the person who has
admitted the prosecutrix in the school was not examined.

12. In our considered view, the approach of the trial
court was not correct. In each and every case the
prosecution cannot be expected to examine the person
who has admitted a student in the school. The school
registers are the authentic documents being maintained
in the official course, entitled to credence of much weight
unless proved otherwise. In our view, considering the
evidence of head master, Bhaulal (PW-8), and the school
certificate produced by him i.e. Ex. P/13-A, age of the
victim has to be taken as 12 years at the time of
occurrence.

13. Of course, Dr. U.S. Vasnik (PW-6) in her chief
examination has stated that the age of the prosecutrix
would be between 13 and 17 years. At the most, adopting
the doctor’s evidence, age of the prosecutrix at the
relevant point of time can only be around 15 years. As
per Section 375 Indian Penal Code a man is said to
commit rape, Sixthly-“With or without her consent, when
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she is under sixteen years of age”. The prosecutrix being
aged 12 years at the time of the occurrence, her consent
or otherwise was of no relevance to bring the offence
within the meaning of Section 375 Indian Penal Code In
our considered view the High Court ignored the material
evidence adduced by the prosecution and erred in
reversing the conviction of the Respondent-Accused.

14. So far as the other ground of acquittal-delay in
registration of the F.I.R. is concerned, it has come on the
record that the uncle of the prosecutrix, Moti Ram (PW-

2), was not in the village and returned back to the village
only on 8th March, 1993 and on his return his daughter-
Hirkanbai (PW-3), has narrated the whole incident to him
as to what happened to the prosecutrix (PW-1) and a
complaint was lodged on the same day i.e. 8th March,
1993. After medical examination of the prosecutrix (PW-

1) on 9th March, 1993, F.I.R. was registered on 10th
March, 1993 and the delay in registration of the F.I.R.
has been properly explained, which has not been
considered by the High Court.”

[Emphasis added]

22. Mr. Datta, learned PP has finally submitted that there is

no element of incongruity which visited the testimony of the

victim, rather on appreciation of the evidence it would be apparent

that she was truthful. Hence, the finding of conviction does not

warrant any interference from this court.

23. For purpose of appreciation, it would be apposite to

make a meaningful survey of the evidence that has been recorded

in the trial.

24. PWs-1 2 are vital to the prosecution case being the

victim and the victim‟s mother. Before their testimony is noted,

the evidence of the other witnesses may be noted.

25. PW-3, Prasanta Kumar Majumder was a teacher in

Sonamura English Medium School, the school of the victim. He has

stated that on 14.02.2015 while he was taking the class, one

Laxmi Ruhi Das [PW-8] handed over some chocolates with request

to deliver those to the victim who was a student of that class

[Class-VI]. PW-8 informed him that the chocolates were given to
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her by one Joypal Saha [PW-7] and accordingly, he had delivered

the chocolates to the victim.

26. PW-4, Smt. Kajal Chakraborty another teacher of that

school has stated that on 16.02.2015 few guardians of Class-VI

met her and told that the children were „talking about the

marriage of the victim‟. They were pained as a minor girl was

married. On 21.02.2015, mother of the victim [PW-2] met her and

she informed what she had heard from few guardians but PW-2

expressed her ignorance and categorically stated that no marriage

has been solemnized. She was cross-examined but without any

dent to her statements.

27. PW-5, Lilo Begum corroborated that on 21.02.2015 she

[PW-2] met one teacher of the school. After returning home, she

met her and one Nachima Akhter [PW-6] and shared the

information given by the teacher [PW-4]. The victim was

questioned and she became frightened and started weeping and

she stated finally that on 28.01.2015 at about 10.30 a.m. when

she was proceeding towards her school, the appellant [Anwar

Hossain Maishan] reached infront of the Rainbow Club, Sonamura

with a vehicle and took her inside the vehicle „forcibly‟. She was

taken to a hut at a long distance where two aged women, one

young woman with child were found. The victim saw one Kazi and

one camera man in that place. The victim was asked to change

her school dress and to wear one saree. Her dress was changed

by those old women and she was compelled to marry the

appellant. After marriage, she was taken inside the hut and the
Page 17 of 33

door was bolted from inside. There, the appellant committed rape

forcibly on the victim. The victim told PWs-5 6 that the house

belonged to one Bachu Miah. The appellant released the victim

after the school hours in the school uniform. As the appellant

threatened not to disclose, the victim did not disclose till

21.02.2015. PW-2 informed the matter to her husband and on

24.02.2015, PW-2 lodged the complaint to the Officer-in-Charge

of Sonamura Police Station on 24.02.2015. On 26.02.2015, the

birth certificate of the victim was seized by the police officer in her

presence and she signed on the seizure list [Exbt.4]. In the cross-

examination, she did not deviate from her statement. But some

omission had been noted at the instance of the defence in respect

of what PW-5 did not state to the investigating officer. The

suggestions as projected were all denied.

28. PW-6, Nachima Akhter replicated PW-5 for obvious

reason but she has stated that the victim told them that the

appellant threatened her that he would kill her and her younger

sister and one cousin if she disclosed that incident. PW-6 was also

the witness to the seizure of the birth certificate [Exbt.3]. Some

omission, even though, has been noted at the instance of the

defence, but PW-6 did not deviate from her statement. She had

also denied the suggestions made contrary to her statement.

29. PW-7, Joypal Saha, a student of Class-XII of the said

school has stated that on 14.02.1015, „one unknown person‟

delivered some chocolates for handing over to the victim. He

received those chocolates but he did not deliver those chocolates
Page 18 of 33

to the victim, but had requested Laxmi Ruhi Das [PW-8] to hand

over those chocolates to the victim. His evidence has delinked the

appellant from delivery of chocolates to the victim.

30. PW-8, Laxmi Ruhi Das has corroborated what PWs-4

7 has testified in the trial.

31. PW-9, Narayanan Chandra Saha having received the

complaint as the Officer-in-Charge of Sonamura Police Station

registered the case against the appellant and one Faruk against

whom no charge was framed [the charge was framed against

Kabir Hossain alias Kabir Miah under Section 366A and Section120B of

the IPC]. After registering the case, he endorsed the case to

Ashalata Debnath, S.I. for investigation.

32. PW-10, Dipankar Das is the scribe who wrote the

complaint [Exbt.2] on dictation of PW-2.

33. PW-11, Dr. Goutam Chakraborty examined the

appellant who stated him to be unmarried but found there was

nothing to suggest that he was incapable of sexual intercourse. He

admitted the examination report [Exbt.6] in the evidence.

34. PW-12, Dr. Shatabdi Pal had examined the victim on

obtaining consent from PW-2. She has stated in the trial that PW-

2 disclosed the age of the victim as 11 years 7 months on the day

of examination i.e. 25.02.2015. The victim had the last

menstruation on 06.02.2015. She complained of pain of lower

abdomen during walk. The victim girl changed her cloth after the

sexual assault and took bath on the next morning. PW-12

recorded the physical manifestations but for obvious reason, she
Page 19 of 33

did not find any sign of rape. As the public hair was not matted,

no foreign hair was located in the triangular distribution. Vulva

was normal with no injury or stain but the hymen was torn. PW-12

collected the samples of vaginal swab, urethral swab but no

seminal or other stain, foreign body, nail cutting and nail

scrapping was available. For laboratory test, blood and urine were

collected after labeling in the sterile container. The samples were

handed over to a constable of the Sonamura Police Station. She

kept her opinion pending till she received the opinion of the

forensic expert in respect of vaginal swab. She has admitted the

examination report of the victim [Exbt.7 series] in the evidence.

During the cross examination, she has stated as follows :

“It is not possible to mention/opinion regarding age of
injury found in the vagina in case of old/healed injury.
It is true that tear of hymen leads to bleeding from the
hymen.

It is true that hymen may be raptured due to cycling or
sustaining injury by falling or masturbation. Rapture may
also be caused if any foreign body other than penis is
inserted.

It is true that in my final opinion I did not mention about
any sexual intercourse.

It is true that vaginal penetration may be happened other
than sexual intercourse.”

[Emphasis added]

Her opinion has already been extracted from the

report.

35. PW-13, Ashalata Debnath, a woman Sub-Inspector of

Police was posted on 24.02.2015 in the Sonamura Police Station

and she was entrusted with the investigation. She has narrated in

the trial how she had carried out the investigation by preparing

the site map, recording the statements of the witnesses, arranging

medical examination of the victim and recording of the statement
Page 20 of 33

of the victim under Section 164(5) of the Cr.P.C. The appellant

was also sent by her for Sexual Potentiality Test. Having received

the forensic report, she collected the final medical examination

report of the victim. From the constable Dhana Laxmi Debbarma,

who collected the samples from PW-12, PW-13 seized those

samples by preparing the seizure list [Exbt.9] for forensic

examination but she was yet to file the charge-sheet. When she

was transferred to Bishalgarh P.S., on the specific assignment, she

has narrated how she conducted the investigation in the various

phases. She prepared the second site map of the second place of

occurrence. PW-13 has explained in the cross- examination that

on 26.02.2015 at the time of recording the statement of PW-5,

she had, by mistake noted the month-January instead of

February. But she has categorically stated that she could not

collect the evidence regarding the identity of two photographers

and the qazi. She has further stated that some of the witnesses

were reluctant to make any statement against the appellant as the

appellant had a history of committing murder. PW-13 has

categorically made the statement that she could not collect the

names of the photographers and qazi who gave the marriage of

the victim with the appellant. She has candidly stated that she did

not verify the circumstances which might have arrived during the

journey till she reached the second place of namely Rangamatiya.

She has admitted that in her examination-in-chief PW-13 has

stated that on 16.03.2015 she engaged secret source to identify

the second place of occurrence at Telkajala in the house of
Page 21 of 33

Bachchu Miah under Melagarh P.S. She has further stated that she

visited the second place of occurrence along with the victim girl

and her guardian. The victim identified the second place of

occurrence and she identified the site map [Exbt.10 series]. Then

she has testified as under :

“Thereafter, I examined the house owner Bachchu Miah and
his brother Ruhul Amin including their two neighbourers
namely, Mst. Rina Begum @ Rina Bibi and Manir Hossain and
recorded their statements under Section 161 of Cr.P.C.”

She had made the following statement :

“Those witnesses also told me that there were two
photographers and one Kazi at the place of occurrence. Those
witnesses told me that the victim girl was taken to the 2nd
place of occurrence by the accused persons in School uniform
and the photographers took snaps of the marriage ceremony
of accused Anowar Hossain Maishan with the victim girl.
Thereafter, I conducted raid in the houses of the co-accused
Kabir Hossain and Faruk Hossain but both of them were found
absconding. Thereafter, I returned to Sonamura police station
along with the victim girl and her mother.”

It would be pertinent to verify the site map of the

second place of occurrence as proved by PW-13. In the said site

map [Exbt.10 series], place of occurrence is a dwelling hut. PW-1

[the victim] in her cross-examination has admitted that she did

not state to the Magistrate or to the Investigating Officer that she

was taken to another room wherein she found two photographers

with cameras and one qazi. At that point of time, she has stated

that there was „one hut‟. Thus, it would be very difficult to find out

two huts in the place of occurrence where the incidence took

place. Therefore, the „A‟ is the only place of occurrence according

to the victim. None of the shopkeepers could say anything in

respect of the incidence of kidnapping. In the cross-examination,

the evidence of PW-13 was not dented at all. She has denied the
Page 22 of 33

suggestions against what she has stated in the examination-in-

chief. She had completed the investigation and filed the final

report.

36. PW-14, Rahul Roy, is a Judicial Magistrate who

recorded the statement of the victim under Section 164(5) of the

Cr.P.C. As the victim was a witness of tender age, for purpose of

recording her statement, the Judicial Magistrate carried out the

required test to determine her maturity of discharging the duty of

telling the truth and comprehending the circumstances.

This court has verified the statement as recorded under

Section 164(5) of the Cr.P.C. on 25.02.2015 [Exbt.1]. The said

statement was certified by the Judicial Magistrate.

It is apparent on the face of the record that PWs-5 and

6 who along with PW-2 heard from PW-1 [the victim] how she was

kidnapped and forced to marry the appellant and how she was

sexually assaulted by commission of rape. The evidence of PWs-5

and 6 has been noted.

37. PW-1, the victim has stated in the trial that the

appellant used to be called by her as uncle [Kaka] and he used to

keep his motor cycle in their residence at Sonapur. She was

reading in Class-VI of that school and residing in a rented house,

adjacent to the house of the appellant. She was staying with her

younger sister who was reading in another school. She used to go

to the school by an auto rickshaw. The appellant used to restrain

her on her way to the school. She had refused to accept the

indecent proposal. For such annoyance, she had stopped going to
Page 23 of 33

school by riding bi-cycle. On 28.01.2015, when she was

proceeding towards school on foot and reached in a place nearby

Rainbow Club, suddenly, the appellant arrived there with a vehicle

and forcibly took her inside the vehicle by gagging her mouth. For

that reason, she could not raise alarm from inside the vehicle.

There was another boy besides the driver and the appellant asked

the driver to go to Rangamatiya which place was known to her

from earlier. At that stage, the recording of the deposition was

discontinued at the request of the victim. Thereafter, she has

stated that she was taken to a hut. At that time, one woman

asked the appellant about her identity but the appellant

threatened the woman not to ask any question. Two other women,

one girl, one baby and one male person were there in that house.

The appellant gave her one saree to wear on changing the school

uniform. Thereafter, she was taken before the qazi but she

expressed her unwillingness, but under threat, she communicated

her willingness. There were two photographers who recorded the

entire proceeding of marriage by their camera. The house inmates

were not known to her. One „Bacchu‟ asked the appellant why he

had brought one school going student with school uniform in their

house. Then the appellant had assured that they would leave

shortly. After marriage, she was bolted in the room where the

appellant committed sexual intercourse forcibly and the victim

became senseless. When she regained sense, she was asked to

change dress and put on the school uniform. She was released at

a place nearby the Sonamura Motor Stand. Before her release, she
Page 24 of 33

was threatened of dire consequence if she had disclosed the

incident. Out of fear, she did not disclose the incident to anyone

but she complained to her mother about the pain in her lower

abdomen when her mother had taken her to a homeopathy

doctor. After the incident, which occurred on 28.01.2015, the

victim was attending the school usually and the appellant was

monitoring her and sometimes threatened her not to disclose the

incident to anyone. She was threatened by the appellant of

circulating the video recording of his marriage with her in the

internet. Later on, she narrated the episode of receiving

chocolates in the class from one teacher [PW-3]. She has also

stated that after completion of school on that day, the appellant

asked her whether she would like to get any gift from him.

Thereafter, she has stated that on 20.02.2015, PW-4 asked her to

inform her mother to visit the school and meet her. After returning

from the school, her mother [PW-2] asked her whether the

information about her marriage was correct or not. Her mother

told her to narrate everything fearlessly. Then she had narrated

the entire episode to her and also to PWs-5 and 6. Thereafter, the

complaint was lodged in the police station. The police officer

recorded her statement and taken her for medical examination

and she was sent for recording of her statement by the Judicial

Magistrate. One day she visited the place of sexual assault with

the investigating officer. She has admitted certain facts during her

cross-examination viz. she did not state to the Judicial Magistrate

that the appellant used to visit her rented house, proposed her
Page 25 of 33

and used to threat by saying that he would kidnap her younger

sister and cousin to Bangladesh and murder them, unless, she

agreed to his proposal. She has also admitted that she did not tell

the Magistrate that the appellant directed the driver to take the

vehicle towards Rangamatiya. She denied the suggestion

projected to her but she had admitted that she did not state to the

Magistrate or to the Investigating Officer that due to forceful

sexual intercourse, she lost her sense. Even, she did not disclose

about the pain in her abdomen to her mother.

The questions were put on certain peripheral matters

which are not relevant in respect of the core evidence. She has

admitted that she had stated to the Magistrate that there was only

one mud wall hut. There has been attempt to derive contradiction

having referred to the previous statement. The victim, however,

had asserted that she did not state to the Investigating Officer

that the appellant took her to “another room” and made her

undressed to commit rape against her will. She has even admitted

that she did not state to the Investigating Officer that the

appellant dropped her at a place near Sonamura bridge

Chowmohuni from his vehicle.

38. PW-2, mother of the victim has stated that their

residence is situated at Sonapur along with Indo-Bangladesh

border. The appellant was engaged in smuggling. The victim used

to reside in a rented house at Sonamura, adjacent to the house of

the appellant. On 21.02.2015, a female teacher of her school had

reported her that :

Page 26 of 33

“……….on the valentine day i.e. on 14.02.2015 accused
Anowar Hossain sent a gift pack of chocolates to
Sonamura English Medium School for its delivery to my
eldest daughter Farhana Islam. It was also informed to
me that before delivery of that gift pack my eldest
daughter was asked by the teacher whether accused
Anowar Hossain was known to her or not and when my
eldest daughter told the teacher that she called accused
Anowar Hossain as uncle, the said gift pack of chocolates
was handed over to my daughter.”

The female teacher, according to PW-2, did not inform

anything more. But she has corroborated that when victim

returned home from her school, she along her two sisters [PWs-5

and 6] asked her to disclose everything to them. Initially, she

appeared frightened and thereafter, the victim told them that the

appellant used to restrain her on her way to the school on the

road almost every day. The appellant expressed his love towards

the victim. Even he had threatened the victim that if she had

refused to marry him, he would kill their youngest daughter

Fahmida and their cousin Farhana Islam. The victim told them that

on 28.01.2015 when she was proceeding towards her school on

foot from the motor stand, in a place nearby Rainbow Club, she

was intercepted by the appellant who arrived there with a vehicle.

The appellant lifted her daughter inside the vehicle by gagging her

mouth by his palm. Thereafter, the vehicle rushed towards

Rangamatiya and from there, the vehicle took a turn towards the

village road. After reaching one house, the appellant compelled

her to change her dress and to wear saree. One qazi and two

cameramen were waiting there for performance of marriage. The

appellant compelled her daughter to accept the proposal of

marriage with the help of qazi. Her daughter told that one Bacchu

was owner of that house. Their lived two aged women and one
Page 27 of 33

child. On completion of the marriage, everybody was asked to

leave that room and then the appellant made her daughter

undressed and committed intercourse on “three occasions”. For

such forceful intercourse, she became senseless. When she

regained her sense, the appellant asked her daughter to wear the

school uniform. The appellant released her daughter near

Sonamura Motor Stand. But before releasing her, she was

threatened not to divulge the fact to anyone. Out of fear, the

victim did not reveal anything to anyone. It has been also stated

by the victim that the appellant threatened to circulate the video

clip of the marriage in the internet. She complained of adnominal

pain. She had stated that on 24.02.2015 she filed the written

ejahar [Exbt.2]. Her daughter was taken to Sonamura CHC for her

medical examination and she was also sent to the Judicial

Magistrate for recording her statement. The police seized the

original birth certificate [Exbt.3] which was later on released on

bail. To show that PW-2 had suppressed the material fact, the

cross-examination was accordingly directed but PW-2 denied all

the suggestions contrary to what she has stated in the

examination-in-chief. She has admitted that she did not mention

her meeting with PW-4 in the FIR. Even she did not state that her

two sisters were reported by her in respect of what she had

learned from the female teacher [PW-4]. She has admitted that

she did not reveal in the FIR that the driver of the vehicle was

directed to ply the vehicle towards Rangamatiya or that one qazi

and two cameramen were waiting in that house for purpose of
Page 28 of 33

marriage. Cross examination was directed towards why the every

bit of details were not exposed in the FIR but she has admitted

thus :

“……in the written FIR I have mentioned that my
daughter …. [the name of the victim] somehow made her
free from the grip of accused Anowar Hossain and
returned home at about 04.30 PM.”

Even, she has made the following statements which

has serious bearing in ascertaining the attending circumstances

towards revelation of the real fact :

“It is true that in the written FIR I did not mention that
Farhana told us that accused Anowar Hossain also
threatened my daughter …. [the victim] to kill her and
my youngest daughter and her cousin if ….[the victim]
disclosed the fact to anyone and that accused Anowar
Hossain released my daughter ….[the victim] at
Sonamura Motor stand after completion of School hours.
It is true that I did not either mention in the written FIR
or state to the investigating police officer that on the day
of occurrence, in the evening while ….[the victim] was
reading her books she complained severe abdominal pain
for which I consulted with one Homeopath who
prescribed some medicines for my daughter ….[the
victim] and that my daughter took medicine regularly
but she had to suffer from abdominal pain for 6/7 days.”

She has denied that she had tutored the victim for

framing the appellant.

39. It is to be noted with adequate emphasis that the

prosecution had completely failed to adduce in the trial, the

witnesses who were examined under Section 161 of the Cr.P.C. by

PW-13 and who did narrate what happened in the second place of

occurrence. Not a single witness neither from the crowded place

on the road wherefrom the victim was „lifted‟ inside the vehicle nor

from the second place of occurrence where the inmates of that

house were in close proximity of „marriage‟ or “sexual

intercourse”, if any had taken place could be adduced. Even

though, PW-1 has made a categorical statement that the owner of
Page 29 of 33

the house namely Bachchu Miah raised objection for bringing a

school going child in his house when the appellant, according to

the victim girl, assured him [Bachchu Miah] that he would leave

with the school going girl shortly. This circumstances as

introduced by the victim girl has unfolded a „charged situation‟.

Evidently, there is no witness for kidnapping with or without intent

of marriage, marriage and sexual intercourse after driving all

persons in the hut in the noon and when there is a single hut.

Even, PW-2 has negated the information as claimed to have

imparted to her by PW-4. PW-4 has stated that she had informed

PW-2, the mother of the victim about the rumor of marriage of her

daughter, but PW-2, the mother of the victim has stated PW-4 had

only informed that someone had sent chocolates for her daughter.

The other witnesses from that school, PWs-3, 7 and 8 did not tell

anything about the rumor of marriage. Even PW-4 did not reveal

to the police who were the guardians reported her about the

rumor. The statement of PW-1 if read keenly, it would be apparent

she has negated that PWs-5 and 6 were present when she told the

occurrence to her mother [PW-2] but PWs-2, 5 and 6 have

claimed that the victim revealed the occurrence when they are all

together and as such, unless this court believes the victim entirely

the finding of conviction cannot be sustained. The medical

examination of the victim did not categorically state that the

victim was subjected to forceful intercourse but her hymen was

found torn and PW-12 has stated for cycling even the hymen can

get torn. The victim herself has stated that she used to go to her
Page 30 of 33

school by cycling. That apart, while discussing about rape, even if

this court acceded that the victim was not physically so powerful

to resist the appellant but for forceful intercourse according to the

medical jurisprudence, the vulva would in all likelihood be injured.

But there is no such injury.

40. That apart, the behavior of the victim, even though she

is of tender age is quite strange. She has stated that the appellant

used to visit her rented house. This shows that the victim had

close acquaintance with the appellant. Moreover, it, further,

appears that the appellant was close to the family and he had the

financial transaction with the family [see the testimony of PW-2].

Even the homeopath doctor to whom the victim and her mother

visited on complaint of abdominal pain was not produced in the

trial. Foremost of all that the victim did conceal the entire

occurrence from all. For non-disclosure, the reason that has been

shown is fear from the appellant but the victim herself has stated

that she had started going to the school as usual and the

appellant used to intercept her in the road. As the appellant was a

dangerous man, according to the victim, she kept silence but she

had also stated that the video of the marriage used to be played

in the markets and from there, the mothers of her friends came to

know why fear thereafter? She disclosed the name of her friend, in

the said statement recorded under Section 164(5) of the Cr.P.C.,

but none of them were produced in the trial nor their mother.

When the appellant was so vigilant about revelation of the

occurrence the allegation of playing the video in the market
Page 31 of 33

appears quite an exaggeration which has been projected by PW-1.

Even existence of such video could not be traced by the police.

Not a single witness could be procured from any market or other

places who saw the video. In such circumstances, whether the

victim can be relied to return the finding of conviction?

41. Having considered the decision of Gurmit Singh

(supra) and Chandraprakash Kewal Chand Jain (supra) the

victim no doubt is at par with injured witness and not accomplice

to the crime. The statement of Bachchu Miah was recorded under

Section 164(5) of the Cr.P.C. Thus, this court has to weigh the

testimony of the victim in terms of the following passage of

Gurmit Singh (supra):

“9. We are in respectful agreement with the above
exposition of law. In the instant case our careful analysis
of the statement of the prosecutrix has created an
impression on our minds that she is a reliable and
truthful witness. Her testimony suffers from no infirmity
or blemish whatsoever. We have no hesitation in acting
upon her testimony alone without looking for any
„corroboration‟. However, in this case there is simple
corroboration available on the record to lend further
credence to the testimony of the prosecutrix.”

[Emphasis added]

The victim‟s own statement that the owner of the

house was seriously annoyed with the appellant and had charged

the appellant why he had brought a girl with a school uniform in

his house. Even one lady challenged the appellant on identity of

the victim. In such circumstances, whether it is believable that

those people would allow the appellant and the victim to stay

inside their hut with Kazi and photographers. It does not appear

sensible. Even the delay in disclosing the occurrence to the

mother of the victim [PW-2] is quite unnatural. That apart, the
Page 32 of 33

victim in the testimony has stated that she was taken to another

room after the marriage was solemnized but the said very

statement was disbelieved by the investigating officer. The only

other hut indexed as „C‟ as available in the proximity was not

shown as the place of occurrence. No corroborative material has

been brought in the evidence to support any part of the

transaction.

42. Moreover, the version of the victim in respect of

marriage in one hut and rape in other hut has completely made

her trustworthiness at peril. The element of exaggeration or

imagination in respect of the occurrence has inflated or deflated

when PW-2 has categorically stated that the victim was raped

thrice in series forcefully. But the victim is silent about such

consecutive rape. Moreover, the vulva of the vagina even not

found swollen. Though the penetration to the labia majora may

not be the essential ingredient, even the rapture of hymen is not

material as proof of rape, but from the description of rape it

appears that it is not a case of attempt but forceful intercourse out

of which the victim lost her consciousness. Even the medical

evidence has not been indicated to such violation.

43. Under these circumstances, when there is no sign of

violence, no injury on labia majora and the attending

circumstances are against the testimony of the victim, it will be

unsafe to convict the appellant solely based on the testimony of

the victim. The victim‟s statement has not inspired confidence in

us.

Page 33 of 33

44. As consequence of the finding as above, the judgment

and order of conviction and sentence as challenged in this appeal,

are set aside on benefit of doubt. The appellant be set at liberty

forthwith.

In the result, this appeal stands allowed.

Send down LCRs forthwith.

JUDGE JUDGE

Sabyasachi B

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