IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:

The Hon’ble Justice Md. Mumtaz Khan

The Hon’ble Justice Jay Sengupta

CRA 654 of 2005

Mona Roy
Vs.

The State of West Bengal

For the appellant : Mr. Moinak Bakshi, learned Advocate as
Amicus Curiae

For the State : Ms. Anusuya Sinha

Heard finally on : 12.06.2019
Judgment on : 21.06.2019
Md. Mumtaz Khan, J. :

Appellant has preferred this appeal assailing the judgement, order of

conviction and sentence dated April 30, 2005 passed by the learned Additional

Sessions Judge, 1st. Fast Track Court, Malda in Sessions Trial No. 4(5) of 2003

arising out of Sessions case No. 79 of 2003 thereby convicting the appellant for

the commission of the offence punishable under Section 376 of the Indian Penal

Code(hereinafter referred to as SectionIPC) and sentencing him to undergo rigorous
imprisonment for 10 years and to pay a fine of Rs. 1,000/- in default to suffer

simple imprisonment for six months more.

On June 20, 1991 P.W.1 lodged a written complaint (Ext.1) scribed by one

Farid Ali before the officer in charge, English Bazar P.S., Malda alleging that on

June 12, 1991 at about 4/5 PM when her minor daughter aged about 11 years

went to fetch water from tap beside their house then at that time appellant

forcibly took her away and raped her. Thereafter, local people got her daughter

admitted to the Railway Hospital in bleeding condition. As he was away for some

work he could not inform the incident to police in time.

On the basis of the above written compliant of P.W.1 English Bazar P.S.

Case No. 176 dated June 20, 1991 was started by P.W.6 against the appellant

under Section 376 IPC. P.W.9 initially investigated the case and thereafter

investigation was taken up by P.W.5 who after completion of investigation

submitted charge sheet against the appellant under Section 376 IPC.

On May 28, 2003 charge under Section 376 IPC was framed against the

appellant and on his pleading not guilty to the charge, trial commenced.

Prosecution in order to prove its case examined 9 witnesses and also

produced and proved the FIR, seizure list, rough sketch map with index,

statement of the victim girl recorded under Section 164 Code of Criminal

Procedure (hereinafter referred to as SectionCrPC), medical report etc. and thereafter on

completion of trial and after examination of the appellant under Section 313

CrPC learned trial judge passed the impugned judgement.

Mr. Moinak Bakshi, learned advocate appointed as amicus curiae by this

court to represent the appellant submitted that the order of conviction and

sentence passed against the appellant are not sustainable in law due to delay in

lodging the FIR , discrepancy in between the statements made in the FIR by

P.W.1 with P.W.2.,failure to produce the treatment sheet, bed head tickets etc.

relating to treatment of the victim, failure to examine the victim girl and mystery

surrounding her reported death, doubt with regard to the recording of the

statement of the victim girl and non examination of the Magistrate. According to

Mr. Bakshi prosecution has failed to prove the charge against the appellant

beyond shadow of doubt.

Ms. Sinha, learned advocate appearing for the state supported the

conviction and sentence passed against the appellant and submitted that victim

initially did not disclose the incident to any one and she was initially taken to the

hospital on the very date of incident and was released on 15th June, 1991 but

she was again taken to the hospital on 19th and that non examination of the

victim girl at first during her stay in the hospital is laches on the part of the

investigating officer for which prosecution case will not suffer. She further

submitted that any contradiction or embellishment in the evidence of father and

mother of the victim cannot make the prosecution case doubtful in the light of

the medical report which corroborated the prosecution case.

Ms. Sinha relating on the decision of Karnel Singh Vs. State of MP reported in

1995 C Cr LR (SC) 340 with regard to the defective investigation, the State of

Maharashtra, Vs. Priya Sharan Maharaj Ors. reported in 1997 C Cr LR (SC) 111
in which matter of not reporting the incident by the victim at the earliest and

Satpal Singh Vs. State of Haryana reported in (2010)3 C Cr LR (SC) 45 with regard

to the delay in lodging the first information report, in support of her submissions.

We have considered the submissions of the learned advocates appearing for

the respective parties and have given our thoughtful consideration to the

evidence on record to consider the propriety of the impugned judgement.

It was evident from the evidence of the doctor(P.W.3) and the medical report

(Ext. 3) that on June 12, 1991 he examined the victim girl at the Eastern Railway

Hospital, Malda and during examination found the victim girl had minor injury in

her perinum, tear in the lateral vaginal wall from about mid-position of the

vagina upto the vault and the blood clot in the wound which was cleaned and the

wound was repaired and accordingly opined that probable cause of injury was

forceful sexual assault. On the basis of the radiological evidence he found the

victim girl aged about 10/12 years. He was cross-examined by the defence but

nothing came out contrary to his statements-in-chief. Interestingly, he was not

challenged by the defence that on June 12, 1991 he did not examine the victim

at the Malda Railway Hospital nor found any injury on her private part. On the

other hand by putting suggestion to the doctor defence tried to prove that the

injury sustained by the patient might be caused by masturbation which the

doctor denied.

Learned court below took into consideration the evidence of P.W.1 and

P.W.2, the parents of the victim girl, beside the evidence of the doctor and the

medical report to arrive at the conclusion that prosecution had been able to prove
the charge of rape against the appellant and accordingly passed the impugned

judgement.

Admittedly, none of the witnesses examined by the prosecution is the

witness to the occurrence. The entire prosecution case rests on the evidence of

P.W.1 and P.W.2, the parents of the victim girl, P.W.3,the doctor, who treated the

victim girl and prepared the medical report. The victim girl who was examined by

the investigating officer during investigation and made statements before the

Magistrate under Sectionsection 164 Cr.P.C. was not examined by the prosecution as

being dead and both the independent witnesses examined by the prosecution

turned Hostile.

According to P.W.1, father of the victim girl and the FIR maker, on the

relevant date at about 4/5 p.m. his minor daughter (victim) went to fetch water

from a nearby tap as per his instruction. Thereafter, he heard an alarm raised by

her daughter and accordingly, he went there. His wife (P.W.2) also went there and

asked their daughter what has happened but she did not say anything. They

found bleeding from her vagina and as such they got her admitted to Malda

Railway Hospital. After that he went away for his work as a mason under a

contractor. After 5/6 days, on return he learnt from his daughter and wife that

the appellant had forcibly raped his minor daughter for which she sustained

bleeding injury from her private part. Accordingly, he lodged the FIR (Ext.1)

scribed by Farid. He identified the appellant in course of his examination before

court. He was cross-examined by the defence and during cross-examination he

admitted that he did not go to the hospital during his daughter’s admission there
but specifically sated that at that time he was out of his house for the purpose of

his work. He also admitted that when he got his daughter admitted to the

hospital he came to know that she was raped by appellant.

The above statement of P.W.1 also found corroboration from P.W.2. P.W.2

has also specifically stated on oath that on the relevant date and time her

daughter (victim) went to fetch water and after about 15 minutes thereafter she

heard alarm of her daughter. She rushed there and saw bleeding from her

private part. She then called her husband and thereafter they took their

daughter to Malda Railway Hospital and got her admitted there. Thereafter, her

husband went outside Malda for his work. Her daughter remain admitted for two

days and thereafter she was discharged from the hospital but after about a day

again bleeding started from her private parts and as such she was again taken to

the hospital and then it was disclosed by the doctor that it was a case of rape.

She further deposed that prior to that her daughter did not disclose about

commission of rape due to fear of the accused. Subsequently, on being asked her

daughter disclosed that the culprit threatened her that he will kill her father if

she discloses anything. On her fervent and long persuasion ultimately her

daughter disclosed that it was the appellant who committed rape on her. After

5/6 days when her husband returned back she and her daughter reported

everything to him and then he again took their daughter to the hospital and got

her admitted there. She was cross-examined by the defence at length but nothing

came out contrary to her statements-in-chief. The above statements of P.W.1 and
P.W.2 also found corroboration from the statements of the victim girl made before

the Magistrate (Ext.7) and the medical evidence.

There is no denying fact that in the instant case victim girl was not

examined by the prosecution. Both the parents of the victim girl (P.W.1 and

P.W.2) have specifically stated that their daughter (victim) is now dead as she

committed suicide. They, however, could not say the exact date of death. There

are however, certain contradictions in their statements with regard to the exact

date of death of the victim girl as according to P.W.1 she committed suicide after

one month of incident while according to P.W.2 she committed suicide after two

months of incident. But P.W.5,the investigating officer, has specifically stated

that on October 11, 1991 victim girl was sent to the learned Magistrate for

recording her statements under Sectionsection 164 Cr.P.C. Ext.7, the statements of the

victim girl, exhibited on consent, also shows that the same was recorded by the

Magistrate on October 11,1991. Evidence on record shows that P.W.1 is a mason

working under a contractor and not a very literate person and P.W.2 is his wife

and she too seems to be not a literate lady. They were examined in court after

about 12 years of the incident. Probably, this may be the reason for such

contradiction as to the exact time of death of the victim girl. However, facts

remains that defence has not disputed or denied the death of the victim girl nor

produced any cogent and reliable evidence to disprove the specific assertions of

P.W.1 and P.W.2 relating to death of the victim girl. Be that as it may, non-

examination of the victim girl can not be a ground for acquittal of the accused, if

there is evidence otherwise available in proving the charge.

P.W.3, the doctor, during examination of the victim girl in the hospital on

the very date of alleged incident found injury in her perinum, tear in the lateral

vaginal wall, blood clot in the wound which was cleaned and the wound was

repaired and opined that probable cause of injury due to forceful sexual assault.

He has specifically stated that the victim was first admitted in the hospital on

June 12, 1991 at 6 p.m. and remained in the hospital up to June 15, 1991.

Thereafter, she was readmitted on June 19, 1991 with bleeding from the vagina

of moderate degree. During cross-examination he admitted that history of the

case was not mentioned in his report nor he took precaution required to be taken

as per the Modi’s jurisprudence or any other jurisprudence as it was not

disclosed to him at the time of examination that it was the case of rape or police

case. He denied the defence suggestion that the injury sustained by the victim

might be caused by masterbation. It is true that treatment sheet, bed-head ticket

and other medical papers relating to the treatment of the victim girl were not

produced during trial but non production of those documents will not render the

evidence of the doctor disbelievable. Moreover, no such suggestion was given to

the doctor that he did not examine the victim girl in the hospital and/or that

victim girl was not admitted in that hospital on the relevant date with bleeding

injuries in her vagina. In such circumstances, there was no reason to disbelieve

the version of the doctor.

The evidence of the parents of the victim girl on oath appear to be

convincing, trustworthy and believable and no significant contradiction or

infirmity has been brought to our notice. Also there appears to be no reason why
they should falsely implicate the appellant, and there is in fact, nothing on record

to suggest that they had any reason to falsely implicate him. However, in course

of examination of the above witnesses certain exaggeration and discrepancies

cropped up.

With regard to the discrepancies, it is the settled proposition that the

discrepancies found in the evidences of witnesses cannot affect their credibility

unless such discrepancies are so vital. Corroboration of evidence with

mathematical niceties cannot be expected in criminal cases and trivial

discrepancies ought not to obliterate an otherwise acceptable evidence and the

court will have to bear in mind that different witnesses react differently under

different situations. One can not come across a witness whose evidence does not

contain some exaggeration or embellishment. In the matter of SectionState of U.P. vs. M.

K. Anthony, reported in (1985) 1 SCC 505 it has been observed by the Hon’ble

Apex Court that in examining the truthfulness of the evidence, the Appellate

Court will have to attach due weightage to the appreciation of evidence by the

Trial Court. Unless there are reasons weighty and formidable it would not be

proper for the Appellate Court to reject the evidence on the ground of minor

variations or infirmities in some details unrelated to the main incident because

power of observation, retention and reproduction differ with individuals.

In the case in hand, though we found certain contradictions and

embellishment in between the evidence of P.W.1 and P.W.2 but those are not so

weighty and formidable touching the merit of the case. Regarding non

examination of the Magistrate who recorded the statements of the victim girl, we
find from the record that the statements in question was exhibited on consent of

the defence. In such circumstances examination of the Magistrate would have

been a mere formality. As such non examination of the Magistrate who recorded

the statements of the victim girl was not fatal for the prosecution.

Regarding delay in lodging the FIR, it is the settled proposition of law that

it is not always a circumstance on the basis of which the prosecution case may

be said to be fabricated, but it all depends on the facts and circumstances of

each case where the circumstance of delay may lead to serious consequences. In

the instant case, we find from the evidence of P.W.s on record that the incident in

question took place on June 12, 1991 in the evening in between 16.00/17.00

hours and on the same evening at 18.00 hours she was admitted in the Eastern

Railway Hospital, Malda having mild vaginal bleeding and tear in the lateral

vaginal wall which had to be repaired and she had to remain admitted there till

June 15, 1991. Then again on June 19, 1991 she had to be admitted when

bleeding from her private part increased. It also appears from the evidence on

record that after initial admission of the victim girl, P.W.1 went out for job and

returned back after 5/6 days and only after return it came to his knowledge that

victim girl was raped. It also transpires from the evidence-on-record that the

victim initially did not disclose the incident due to fear and disclosed only after

much persuasion and only then written complaint (Ext.1) was submitted at the

P.S. by P.W.1. Thus, from the above we find that the delay in lodging the FIR has

been satisfactorily explained.

Therefore, taking into consideration the facts and circumstances on the

basis of which the impugned judgment is passed, we are of the opinion that the

impugned judgment does not require our interference on the above grounds in

view of the settled propositions of law as discussed herein above.

We, therefore, dismiss the appeal and affirm the conviction and sentence

imposed on the appellant.

A copy of this judgment along with the Lower Court Records may be sent

down to the learned Trial Court forthwith.

Urgent photostat certified copy of this judgement, if applied for, be given to

the parties, as expeditiously as possible, upon compliance with the necessary

formalities in this regard.

I agree (Md. Mumtaz Khan, J.)

(Jay Sengupta, J.)