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Unknown vs The State Of West Bengal on 18 November, 2019

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Before :

The Hon’ble Justice SAHIDULLAH MUNSHI
And
The Hon’ble Justice SUBHASIS DASGUPTA

C.R.A. No. 90 of 2011
Ajoy Biswas
… Appellant/Accused

-Versus

The State of West Bengal
… Respondent

With

C.R.A. No. 89 of 2011
Biswajit Das @ Bhola
… Appellant / Accused

-Versus
The State of West Bengal
… Respondent
With

C.R.A. No. 59 of 2011
Dipankar Roy Anr.

… Appellant/Accused

-Versus
The State of West Bengal
… Respondent
2

Mr. Sandipan Ganguly …Sr. Adv.

Mr. Debangan Bhattacharjee

… for the appellant
In C.R.A. No. 90 of 2011

Mr. Milan Mukherjee …Sr. Adv.
Mr. Rahul Ganguly

… for the appellant
In C.R.A. No. 89 of 2011

Mr. Sandipan Ganguly …Sr. Adv.
Mr. Udoy Sarkar
Mr. Bhaskar Seth

… for the appellant
In C.R.A. No. 59 of 2011

Ms. Puspita Saha

… for the State

Heard on : 06.08.2019, 13.08.2019 18.09.2019.

Judgment on : November 18, 2019

Sahidullah Munshi, J.: By these appeals the appellants have

challenged the judgment of conviction dated 23.12.2010 and order of

sentence dated 03.01.2011 passed by the learned Additional Sessions

Judge, Fast Track, First Court, Kalyani, Nadia in Sessions Trial No.

(S.T. No.) II (Dec) 10, corresponding to Sessions Case No. 13(10)10,

convicting the appellant, Shri Ajoy Biswas to suffer rigorous

imprisonment for a period of 10 years for committing offence under

Section 376 of the Indian Penal Code subject to the provisions of
3

Section 428 Cr.P.C. and to pay a fine of Rs.1000/- in default to suffer

simple imprisonment for one month and directing the other

appellants namely, convicts Bhola @ Biswajit Das, Dipankar Roy and

Raj Kamal Golder (now dead) to suffer simple imprisonment for four

years and six months subject to the provision of Section 428 Cr.P.C.

and to pay a fine of Rs.500/- each in default to suffer simple

imprisonment for further one month.

All the above mentioned appeals arose from a single and

common FIR (Exbt. 1) registered on the basis of the written complaint

filed by Kaveri Das on 30th July, 2007 from which Sessions Trial case

No. II (Dec.) 10 corresponding to Sessions Case No. 13(10)10 arose

and were decided by the learned Court below analogously since

common questions of law and facts are involved. Written complaint

disclosed that the alleged offence was committed by Ajoy Biswas on

29.07.2007 in the evening at about 06.30 pm at the house of Ajoy

Biswas. It is complained that on 29.07.2007 at 06.30 pm some boys

of the neighbourhood called the de facto complainant at the house of

Ajoy Biswas, accused in CRA No. 90 of 2011 and where she was

intoxicated through some drinks and thereafter, she was physically

tortured and raped by Ajoy Biswas. It is the specific allegation that

friends of Ajoy extended cooperation to the alleged commission of the

offence of rape on the complainant. Ajoy Biswas has filed this appeal

being C.R.A. No. 90 of 2011 against the order of conviction and

sentence similarly two other appeals being C.R.A. No. 89 of 2011

C.R.A. No. 59 of 2011 were also filed by Bhola Das, Dipankar Roy and
4

Raj Kamal Golder respectively. During pendency of the appeal filed

before this Court Raj Kamal Golder died. Since identical questions

and facts of law are involved in all these appeals they are taken up

together for the sake of convenience.

The complaint dated 30th July, 2007 was received by the P.S. on

30 July, 2007 at 18.15 hours while the occurrence disclosed to be on

29th July, 2007 at about 18.30 hours which was a Sunday. FIR was

registered under Section 376/120B IPC against accused (1) Ajoy

Biswas; (2) Bhola Das; (3) Dipankar Roy and (4) Raj Kamal Golder.

Record reveals that complaint was filed by the victim at least

with a delay of 24 hours.

The complaint further discloses that in the evening of 29th July,

2007 at about 6.30 pm the accused persons called the victim and she

went to the house of Ajoy Biswas. She was intoxicated through drinks

and was raped by Ajoy Biswas. Other accused persons being friends

of Ajoy abated the offence of rape.

Charge was framed by an order dated 7th December, 2010 by

the learned Judge under Section 376(2)(g) of the Indian Penal Code.

Altogether eight witnesses were produced and examined by the

prosecution of which PW1 is the de facto complainant, who was aged

about 20 years on the day of occurrence of the offence.

PW2 is the brother of PW1. PW3 to PW8 are neighbours of

accused Ajoy Biswas. The victim initially refused to medical
5

examination and for recording of statement under Section 164 of Code

of Criminal Procedure. Police filed final report but no “naraji” petition

filed by the defence. However, investigation proceeded further at the

initiative of the learned Magistrate. Order dated 06.03.2008 and

26.03.2009 reveals that FRT was not accepted by the Magistrate

concerned. Order dated 17th August, 2007 reveals that the victim

refused to get her statement recorded under Section 164 of the Code

of Criminal Procedure. The victim also refused medical examination

which is apparent from the order dated 28.02.2008. Significantly,

victim’s Jamai Babu who was the scribe of the written complaint was

not examined. Case record also reveals that Investigating Officer who

is a vital witness in this case has not been examined. Although,

provisions of Section 53A and 164A are mandatory with effect from

23rd June, 2006 on Amendment, has not been complied with. It is

further borne out from the record that wearing apparels of the victim

were not seized; there is no FSL report. Investigating Officer took no

steps for medical examination of the victim within 24 hours as

required under Section 164A of the Amended Act and lastly

Investigating Officer has not been examined in this case.

A forwarding report dated 02.08.2007 has been shown to draw

our attention that IO Gobinda made prayer for medical examination

but it was refused. On 28.02.2008 Ajoy Kumar Roy another

investigating officer filed FRT but the ACJM did not take cognizance of

such report and ordered for re-investigation in pursuance whereof

charge-sheet was filed by subsequent Investigating Officer, namely,
6

Bani Brata Dutta. Both Mr. Ganguly and Mukherjee appearing for the

appellants submitted that failure to medically examine the victim

would attract adverse inference under Section 114(g) of the evidence

Act.

PW1 being the victim and de facto complainant in this case

deposed that she went to the house of Ajoy Biswas as Ajoy requested

her to go there. She was offered tea which was added with sedative.

According to her, Ajoy committed physical torture on her and

committed rape. PW1 says that other three accused persons kept the

door bolted from outside. She decided to commit suicide but

ultimately, did not do so and instead she informed the police and

lodged a written complaint which was scribed by her brother-in-law

Gobinda Choudhury, who has not been examined. She further

deposed that she jumped into the river Ganges. In her cross-

examination she deposed that she went to the house of Ajoy to open a

savings account and she further deposed that she did not disclose

in the written complaint that three other accused persons bolted

the door from outside. It is her deposition that she jumped into the

river Ganges but these boys did not rescue her. She has admitted in

her cross-examination that she did not get herself examined by

doctor.

On the one hand she deposed that she cried out when

assaulted but she again deposed “I cried out after the incident. When I

was inside the room I could not cry as I was not in my sense.” She
7

further deposed “after the incident when I was crying the inmates of

Ajoy came and insulted me and I went to the river.” She has further

deposed “there may be fifty houses on the both sides of road leading to

Ganga from the house of Ajoy.”

After scanning the evidence of PW1 who is the de facto

complainant it appears that she sought to make out a case that on

the request of the prime accused Ajoy Biswas she went to his house to

open a bank account but the said Ajoy Biswas physically violated her

with the other three accused persons. She tried to commit suicide and

jumped into the river Ganges. Some people rescued her. After she was

rescued from the river Ganges she was taken to her house by two

men. They were not examined by the prosecution. Gobinda

Choudhury the scribe was not examined. Although, she deposed

that at the relevant time her family consisted of her elder brother, his

wife, her mother, her sister but none of them was examined. She

was not even examined by doctor. Although, she deposed that after

the incident when she was crying inmates of Ajoy came and insulted

her but none of them has been examined. According to her fifty

houses are situated on both sides of the road leading to Ganga from

the house of Ajoy but no one from those houses has been examined

by the prosecution. The inmates of Ajoy about whom the victim

speaks of being insulted, were also not made accused. The

complainant when asked by the Court answered “I got married on

12.06.2008”. How far such evidence of PW1 can be relied on to punish

the accused persons will be discussed later on but before that the
8

evidence of PW2 Swapan Das, who is the brother of the victim if

considered, it comes out that he suppressed some fact regarding the

delay in lodging the complaint. No explanation is also forthcoming as

to why apart from this PW2 no other persons of the family could lodge

a complaint before the police station on the same night when the

allegation is so grave. In the cross-examination this witness admitted

that while coming back to home he did not find his sister but this fact

was never narrated to the Investigating Officer and he has also not

made it clear as to whether was there any enmity between his sister

and Ajoy if he had refused to marry his sister. Surprisingly, the

witness claimed to have informed the incident to the local people but

not a single name has not been disclosed and none of them has been

examined by the prosecution.

The other witnesses from PW3 to PW8 although produced by

the prosecution claiming to have knowledge about the incident,

denied to dispel anything in the box. All the said witnesses took the

same stand but prosecution did not declare them hostile.

From the examination of the witnesses under Section 313 of the

Code it appears that they all took stand of innocence. Now this is for

the prosecution to prove their case beyond any reasonable doubt. The

learned Court below has arrived at a finding that the accused persons

were not innocent and that the prosecution established the charges

framed against them under Section 376(2)(g) of the Indian Penal Code.
9

In this case practically the entire sentence has been awarded by

the Sessions Court based on the evidence of the victim de facto

complainant. Although, her brother deposed before the Court but the

evidence adduced by the victim would not be reliably corroborated by

the evidence of her brother PW2. Rather we find certain contradiction

in between the two.

Mr. Milan Mukherjee and Mr. Sandipan Ganguly, both

appearing for the appellants in their respective appeals submitted

that Court should be very very careful to pronounce conviction where

the accused persons are to be sentenced on the basis of the sole

testimony of the victim. The learned counsels have also made

elaborate argument that sole witness can be relied on provided she is

above all doubts. Learned counsels submitted that apart from the

genuineness of the evidence adduced by PW1, delay in making the

complaint of such a serious incident could not be satisfactorily

explained. Learned counsels submitted that the scribe who is none

but the brother-in-law of the victim was not examined and the same

also creates a doubt regarding the fact whether the complaint lodged

was correctly recorded in writing before the police authorities. The

learned Counsels also pointed out the frustrating manner, in which

the prosecution proceeded by not taking recourse to examination of

the victim by any doctor, although, the allegation is of rape. The trial

Court has held that it is not for the fault of the victim but for the fault

of the investigating agency the accused persons are not entitled to be

acquitted. On behalf of the appellant it has also been argued that
10

when the trial Court admitted the existence of the discrepancies in the

oral testimony of the victim and that of his brother, the trial Court

could not be justified to have arrived at a finding that the accused

persons were guilty of the offence.

Mr. Ganguly, learned advocate appearing for the appellant

relied on the following decisions:

• Rameshwar -Vs. – The State of Rajasthan

reported in AIR 1952 SC 54;

• Sadashiv Ramrao Hadbe -Vs. – State of

Maharashtra Anr. reported in (2006) 10 SCC 92

• Bibhishan -Vs. – State of Maharashtra reported in

(2007) 12 SCC 390;

• Vimal Suresh Kamble -Vs. – Chaluverapinake

Apal S.P. Anr. reported in (2003) 3 SCC 175;

• Hemraj S/o Moti Ram -Vs. – State of Haryana

reported in (2014) 2 SCC 395;

• Mussauddin Ahmed -Vs. – State of Assam

reported in (2009) 14 SCC 541;

Mr. Panda appearing for the prosecution submitted that it is

now the settled law that even victim’s evidence alone is sufficient to

inflict punishment upon the accused if no other witness is available.

According to him even in absence of corroboration, if the victim’s
11

evidence is sound enough and is above any suspicion, Court should

not feel hesitation to pronounce sentence. He relied on various

decisions to show that non corroboration is no bar for sentencing

the accused; sole testimony of prosecutrix can be relied to punish the

guilty. Mr. Panda submitted that in this case Court should appreciate

that the victim got married before the trial ended and that was one

year after the incident. Such a courageous lady has come forward

before the Court to take revenge of the violation caused to her

chastity, dignity and social status. He submitted that the evidence on

record is sufficient to hold that all the accused persons are guilty of

the offence alleged to have been committed.

Mr. Panda relied on the following decisions:

• Vimal Suresh Kamble -Vs. – Chaluverapinake

Apal S.P. Anr. reported in (2003) 3 SCC (Cri)

596

• Vijay alias Chinee -Vs. – State of Madhya

Pradesh reported in (2010) 8 SCC 191;

• Dinesh alias Buddha -Vs. – State of Rajasthan

reported in (2006) 3 SCC 771;

• State of Kerala -Vs. – Kurissum Moottil Antony

reported in (2007) 1 SCC (Cri) 403

The decision cited by Mr. Panda for the State in Vimal Suresh

Kamble (supra) is on the issue whether conviction can be made on
12

the basis of the sole testimony of prosecutrix. He relies on the

proposition that sole testimony is sufficient to hold conviction. The

facts situation in the present case is distinguishable from the fact

situation of the case in Vimal Suresh Kamble (supra) where the

Hon’ble Apex Court holds that unless the evidence of the prosecutrix

inspire confidence of the Court, the conviction based on sole

testimony of the prosecutrix is not permissible. The risk of reliance of

such sole testimony, in my view, is very high in this case because of

the attending circumstances revealed from the evidence on record.

Therefore, the sole testimony of the witness in this case with so many

contradictions, will not be safe to be relied on for conviction and to

uphold the order of conviction passed by the trial Court.

The finding arrived at by the Hon’ble Apex Court in this decision

rather supports the case of the defence. The defence has already

relied on the decision which we have discussed earlier.

The decision in Vijay alias Chinee (supra) has been relied on

by Mr. Panda to argue that even if the sole testimony of the

prosecutrix is sufficient for the conviction of the accused relying on

paragraph 5 of the decision. Mr. Panda submitted that in a rape case,

an accused can be convicted on the sole testimony of the prosecutrix.

However, on going through the fact of the case we find that this case

originates from an FIR under Section 376/34 IPC which was

registered against the appellant and six others at a Police station

under District Jabalpur. The Trial Court after concluding the
13

proceeding convicted all the accused persons including the appellant

for committing gang rape and sentence each of them to ten years

rigorous imprisonment with a fine of Rs.500/-. Aggrieved by the said

judgment and conviction passed by the Sessions Court, appellant and

other accused persons preferred appeals before the High Court

Madhya Pradesh at Jabalpur. The said appeal has been dismissed by

the Hon’ble Apex Court. In dismissing the said appeal the Hon’ble

Apex Court held that while appreciating evidence of a witness, minor

discrepancies on trivial matters, which do not affect the core of the

prosecution case, may not prompt the Court to reject the evidence in

its entirety. The Hon’ble Apex Court further says that even if there are

some omissions, contradictions and discrepancies, the entire evidence

cannot be disregarded. The Hon’ble Apex Court held that “after

exercising care and caution and sifting the evidence to separate truth

from untruth, exaggeration and improvements, the court comes to a

conclusion as to whether the residuary evidence is sufficient to convict

the accused. Thus, an undue importance should not be attached to

omissions, contradictions and discrepancies which do not go to the

heart of the matter and shake the basic version of the prosecution

witness. As the mental capabilities of a human being cannot be

expected to be attuned to absorb all the details, minor discrepancies are

bound to occur in the statements of witnesses.” In the present case as

we have analyzed, the discrepancies noted, are not at all trivial or

minor in nature so that the same can be separated from the core

issues involved in this case or can this be ignored.
14

Dinesh alias Buddha (supra) has been relied on by Mr. Panda

to argue that corroboration, although, necessary but is not a sine qua

non for conviction in a rape case. He submitted that a girl or woman

who is raped is not an accomplice. Relying on the said decision Mr.

Panda submitted that rape is not only a crime against a girl or a

woman but it is crime against the entire society and therefore, it

should be considered on a separate pedestal.

Although, going through the decision of the Hon’ble Apex Court

it appears that the evidence of a victim of sexual offence is entitled to

great weight notwithstanding the absence of corroboration but the

present case is distinguishable on fact where trustworthiness of a

victim is heavily doubted. However, the Hon’ble Apex Court in this

case reduced the sentence to ten years from life imprisonment.

State of Kerala (supra) has been relied on by Mr. Panda is on

the same line as that of the said decision in Dinesh alias Buddha

(supra) principles are same and therefore, we do not deem it

appropriate to reiterate the principles once again and such decision

does not help Mr. Panda’s contention to sentence the appellants.

We have heard the learned counsel for the parties and perused

the materials on record. As indicated earlier we find that in this case

order of conviction has been passed on the testimony of the victim

alone. We have perused the oral testimony of the victim which

contains lot of contradictions and the same has already been pointed

out earlier. While scanning the oral evidence of PW1 we found in her
15

deposition that she jumped into the river to commit suicide after the

offence. She described that some of her family members were at home

who knew about the matter but none of them was brought by the

prosecution as witness. The persons said to have taken her from the

river to her home after the alleged so-called incident of jumping into

the river in order to commit suicide, were not examined. Although,

she deposed that there were about fifty houses in and around the

Ganges where she jumped but none of the residents of that locality

were brought to the Court by the prosecution. Even PW1 deposed that

many educated people used to reside in the said area including

teachers, lawyers but nobody was examined. No reasonable

explanation could be suggested by the prosecution through PW1 as to

why these persons were not examined. No explanation is available in

the evidence and PW1, as to why the victim was not medically

examined after the commission of offence. It, however, appears from

the record that the victim refused to get herself examined by a doctor.

Even she refused to get her statement recorded under Section 164 of

the Code of Criminal Procedure. The deposition made by the victim

would have been corroborated by other post occurrence witnesses but

none came forward or called by the prosecution. The best person

would have been the scribe who is the brother-in-law of the victim to

corroborate her evidence as post occurrence witness but he also did

not come forward. There is no evidence whether the complaint was

written at the instruction of the victim. When victim is the sole

witness this needs to be corroborated from other sources which is
16

totally absent in the present case. In this case it is shockingly noticed

that the learned Court below omitted to take conscious note of the

apparent contradiction on the oral evidence of PW1 for less to speak of

any corroboration by other witness. Therefore, in absence of

corroboration and in particular when there are contradictions in the

evidence itself and there is a contradiction between the statement in

the written complaint and her oral testimony, the reliability on the

testimony of the sole witness becomes risky.

Mr. Ganguly has rightly pointed out that the quality of evidence

is very deprecating and cannot be relied on because it raises lot of

suspicion. On this aspect it is important to point out that an

accomplice is unworthy of credit unless is corroborated in material

particulars. On the question of corroboration Mr. Ganguly, referred to

the decision in Rameshwar (supra) the fact of that case if noted, the

appellant Rameshwar was charged with committing rape on a young

girl Mst. Purni, aged eight years. He was committed to Sessions and

was convicted by the Assistant Sessions Judge, Sawai Jaipur, and

sentenced to one year’s rigorous imprisonment and a fine.

An appeal was made to the Sessions Judge at Jaipur and the

learned Sessions Judge held that the evidence was sufficient for moral

conviction but fell short of legal proof because, in his opinion, the law

requires corroboration of the story of the prosecution in such cases as

a matter of precaution and the corroborative evidence, in so far as it

sought to connect the appellant with the crime, was legally
17

insufficient though morally enough. He was satisfied however that the

girl had been raped by somebody. Accordingly, he acquitted the

accused giving him the benefit of doubt.

State appealed against such acquittal to the High Court at

Jaipur. High Court held that law requires corroboration in such cases

but held that the girl’s statement made to her mother was legally

admissible as corroboration and considering that to be sufficient the

Court set aside the acquittal and restored the conviction and

sentence. After a leave was granted to file appeal under Section

134(1)(c) of the Constitution the Hon’ble Supreme Court dealt with the

matter and dismissed the appeal. The Hon’ble Apex Court held “the

independent evidence must not only make it safe to believe that the

crime was committed but must in some way reasonable connect or tend

to connect the accused with it by confirming in some material particular

the testimony of the accomplice or complainant that the accused

committed the crime. This does not mean that the corroboration as to

identify must extend to all the circumstances necessary to identify the

accused with the offence. Again, all that is necessary is that there

should be independent evidence which will make it reasonably safe to

believe the witness’s story that the accused was the one, or among

those, who committed the offence. The reason for this part of the rule is

that —

a man who has been guilty of a crime himself will always

be able to relate the facts of the case, and if the confirmation be
18

only on the truth of that history, without identifying the persons,

that is really no corroboration at all… It would not at all tend to

show that the party accused participated in it.”

Unfortunately, in this case no manner of corroboration is at all

available. We have only to rely on the evidence of PW1 which for the

foregoing reasons are not safe as to inflict sentence upon the accused.

The decision relied on by Mr. Ganguly in Sadashiv Ramrao

Hadbe (supra) is also on the point of solitary evidence how far can be

relied on. It is the settled law that sole testimony of the prosecutrix

can be relied in evidence if it is capable of inspiring confidence in the

mind of the Court. The attending circumstances, in particular, non-

examination of the victim by the medical expert rather refusal by the

victim to undergo medical examination; to refuse to record her

statement under Section 164 of the Code of Criminal Procedure; to file

the written complaint after a lapse of 24 hours without reasonable

explanation as regards the delay and her own evidence contending

contradictions that too with the statement in the written complaint

makes it highly improbable that PW1 did not lie before the Court. And

in such circumstances, in my opinion the Court should be more

careful to accept such sole testimony of the prosecutrix to impose

sentence upon the appellant. So also the circumstances under which

the victim implicated the appellant Ajoy for the commission of the

offence under Section 376 of Indian Penal Code. Suspicion also arose

as regards other accused persons abating the commission of offence
19

of Ajoy and therefore, inflicting punishment upon the other appellants

is also not sustainable inasmuch as attending circumstances also

shows that the victim complained that these three other accused

persons bolted the door from outside but no amount of evidence is

available how the victim came out of the room after the alleged

incident. The attending circumstances also reflect that the victim

voluntarily went to the house of Ajoy and her story of serving tea for

which she was stupefied also not above board because in her evidence

itself she says that she was not in sense and in the next breath she

stated that she cried after the offence. This self contradictory

statement in the evidence destroys altogether the credibility of the

evidence. In the present case as we have already pointed out that

there was no seizure of wearing apparels, no FSL Report and so on

which are pertinent for sentencing for the offence under Section 376

of the Indian Penal Code. With the striking similarity of this case with

that of the decision of the Hon’ble Supreme Court in Bibhishan

(supra) it can be safely opined that elements factually required for the

commission of an offence under Section 376 of IPC is absent in the

present case. The prosecution has completely failed to explain why

provisions of Sections 53A and 164A of the Code of Criminal

Procedure could not be adhered to. The said provisions are set out

below:

20

“S. 53A:- Examination of person accused of rape by
medical practitioner-

1. When a person is arrested on a charge of committing an
offence of rape or an attempt to commit rape and there are
reasonable grounds for believing that an examination of his
person will afford evidence as to the commission of such
offence, it shall be lawful for a registered medical practitioner
employed in a hospital run by the Government or by a local
authority and in the absence of such a practitioner within the
radius of sixteen kilometers from the place where the offence
has been committed by any other registered medical
practitioner, acting at the request of a police officer not below the
rank of a sub-inspector, and for any person acting in good faith
in his aid and under his direction, to make such an examination
of the arrested person and to use such force as is reasonably
necessary for that purpose.

2. The registered medical practitioner conducting such
examination shall, without delay, examine such person and
prepare a report of his examination giving the following
particulars, namely-

i. the name and address of the accused and of the person
by whom he was brought,

ii. the age of the accused,

iii. marks of injury, if any, on the person of the accused,

iv. the description of material taken from the person of the
accused for DNA profiling, and”.

v. other material particulars in reasonable detail.

3. The report shall state precisely the reasons for each
conclusion arrived at.

21

4. The exact time of commencement and completion of the
examination shall also be noted in the report.

5. The registered medical practitioner shall, without delay,
forward the report of the investigating officer, who shall forward
it to the Magistrate referred to in section 173 as part of the
documents referred to in clause (a) of Sub-Section (5) of that
section.”

“S. 164A:- Medical examination of the victim of rape.-

(1) Where, during the stage when an offence of committing rape
or attempt to commit rape is under investigation, it is proposed
to get the person of the woman with whom rape is alleged or
attempted to have been committed or attempted, examined by a
medical expert, such examination shall be conducted by a
registered medical practitioner employed in a hospital run by the
Government or a local authority and in the absence of such a
practitioner, by any other registered medical practitioner, with
the consent of such woman or of a person competent to give
such consent on her behalf and such woman shall be sent to
such registered medical practitioner within twenty- four hours
from the time of receiving the information relating to the
commission of such offence.

(2) The registered medical practitioner, to whom such woman is
sent, shall, without delay, examine her person and prepare a
report of his examination giving the following particulars,
namely:-

i. the name and address of the woman and of the
person by whom she was brought;

ii. the age of the woman;

22

iii. the description of material taken from the person of
the woman for DNA profiling;

iv. marks of injury, if any, on the person of the woman;

v. general mental condition of the woman; and

vi. other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each
conclusion arrived at.

(4) The report shall specifically record that the consent of the
woman or of the person competent to give such consent on her
behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the
examination shall also be noted in the report.
(6) The registered medical practitioner shall, without delay
forward the report to the investigating officer who shall forward
it to the Magistrate referred to in section 173 as part of the
documents referred to in clause (a) of sub- section (5) of that
section.

(7) Nothing in this section shall be construed as rendering lawful
any examination without the consent of the woman or of any
person competent to give such consent on her behalf.”

The provisions have been incorporated in the Code by way of

Amendment under Act 25 of 2005 operative from 23rd June 2006

whereas the alleged offence in this case was committed on 29th July

2007. Having regard to such vital omission it does not inspire

confidence of the Court to hold that the prosecution has been able to

prove the commission of offence beyond any reasonable doubt.
23

Consequently, the conviction and sentence imposed by the Sessions

Court cannot be sustained.

In the present case we also do not find any incriminating

evidence from the record so as to hold that there is a possibility of the

accused Ajoy to have the offence committed with the active

cooperation of the other appellants.

On an overall appreciation of the sole testimony of the

prosecutrix and in particular her conduct we are not in a position to

at all rely on the evidence of PW1. We also cannot hold that the

evidence of PW1 not only does not inspire confidence but it certainly

appears to be unnatural and unworthy of credit, inasmuch as she has

contradicted herself in her evidence and no repair has been made by

the prosecution by giving appropriate suggestions to the witness.

Mr. Ganguly has rightly relied on a decision in Vimal Suresh

Kamble (supra) to argue that where all evidence of prosecutrix does

not inspire confidence if totality of the circumstances are taken into

consideration, Court cannot impose punishment simply on the basis

of testimony of the prosecutrix. And therefore, the conviction so held

against the appellants are liable to be set aside. Similar finding has

been arrived at by the Hon’ble Apex Court in a decision in Hem Raj

(supra) where allowing the appeal filed by the convict held- “Going

through the proecutrix’s evidence, it becomes clear that it would be

extremely dangerous to rely on such evidence. The prosecutrix

obviously knew the appellant, being her neighbor. It is her case that
24

she used to write letters to him. In the examination-in-chief, she stated

at one stage that the appellant raped her and immediately thereafter

retracted the statement and stated that he did not rape her but he

attempted to rape her. She refused to acknowledge that the statement

which was read over to her was made by her to the police. She

expressed surprise as to how her signatures appeared on the said

statement. The Public Prosecutor had to therefore declare her hostile.

Hence, such evidence cannot be relied on. It would be hazardous to

confirm the conviction on the prosecutrix’s sole testimony. Even the

evidence of PW1, the elder brother of the prosecutrix, is also far from

satisfactory and incapable of offering any corroboration to the

prosecutrix’s evidence. He went to the extent of saying that he did not

make any statement to the police. Also, the prosecution failed to

examine the doctor who had examined the prosecutrix. The medico-

legal report (MLR) was produced in the court by PW 6 (Medical Report

Technician). This is a serious lapse on the part of the prosecution. MLR

does suggest that the hymen of the prosecutrix was torn. It is also true

that the prosecution has brought on record FSL report which shows that

human semen was detected on the salwar of the prosecutrix and on the

underwear of the accused. However, it is difficult to infer from this, that

the prosecutrix was raped by the appellant. The prosecutrix herself has

vacillated on this aspect. This is a case where the appellant must be

given benefit of doubt. Hence, conviction of the appellant is reversed.”

The said fact leading to the decision is a case where the

prosecutrix (PW5) made out a case that went outside her house to
25

relieve herself, after about midnight. The accused-appellant, who is

her neighbor, was standing on the wall of his house and jumped from

the wall, came to her house, and allegedly raped her. While the

prosecutrix raised alarm, her elder brother PW1 came there and the

appellant ran away. The prosecutrix lodged her complaint on the

basis of which investigation was started and the appellant was

charged. High Court confirmed conviction of the appellant under

Section 376 and 450 of the Indian Penal Code.

In this case the trial Court convicted the appellant and

sentenced him as aforesaid. The High Court confirmed the conviction

and sentenced the appellant. Against such conviction appeal was

preferred by the accused/appellant in Hon’ble Supreme Court.

Speaking of the need of corroboration of the evidence of the

prosecutrix the Hon’ble Apex Court held that in a case involving

charge of rape the evidence of the prosecutrix is very vital. If such

evidence is credible and inspires total confidence, it can be relied

upon even without corroboration. The Hon’ble Apex Court held that if

the sole evidence of the prosecutrix is to be relied on the Court has to

scrutinize it very carefully, because in a given case on that lone

evidence a man can be sentenced to life imprisonment. According to

the Hon’ble Apex Court, the Court must, therefore, with its rich

experience evaluates such evidence with care and circumspection and

only after its conscience is satisfied about its credit worthiness to rely

upon it.

26

On a careful consideration of the evidence of PW1 it is very

difficult to believe that the prosecutrix shows her truthfulness on the

box, apart from the contradictory statements made during cross-

examination. With deepest respect to the learned Sessions Court we

must say that a person or persons cannot be held guilty of committing

rape or abatement to rape on emotion and sentiment for the

complaint has been made by a lady and it is also not desirable for the

Court to come to a finding in favour of the complainant with regard to

the commission of offence simply holding that because she is a lady

nobody came forward to support her. Such sentiment has no place in

the adversarial system where an offence if alleged to have been

committed, is to be proved beyond any reasonable doubt, otherwise

the accused persons are entitled to get benefit of doubt which may

lead to their acquittal.

In a landmark decision in Mussauddin Ahmed (supra) the

Hon’ble Apex Court had occasion to deal with a situation where

material contradictions regarding factual aspects of the incident has

been seriously criticized by the Hon’ble Apex Court and also held that

“it is the duty of the party (prosecution) to lead the best evidence in its

possession which could throw light on the issue in controversy and in

case such material evidence is withheld, the Court may draw adverse

inference under Section 114 Illustration (g) of the Evidence Act, 1872

notwithstanding that the onus of proof did not lie on such party and it

was not called upon to produce the said evidence.”
27

Fact scenario of our case has a striking similarity with the fact

situation of the case in Mussauddin Ahmed (supra) where the

Hon’ble Apex Court acquitted the appellant from the charge under

Section 376 IPC holding inter alia that the prosecution failed to prove

its case against the appellant beyond reasonable doubt.

In this case we have noticed that the Investigating Officer has

not been examined. No explanation is forthcoming from the

prosecution as to why such a vital omission has been allowed to

happen which ultimately, gives benefit to the defence because the

defence is deprived of cross-examining the Investigating Officer who is

the master of the prosecution. In such a situation the accused is

certain to get some benefit for the lackadaisical manner of conducting

the case by the prosecution. It goes without saying that where the

Court deals with the sole testimony of the prosecutrix and decides to

sentence the accused. Court must consider as to what is the starling

quality of the evidence of the prosecutrix and how such evidence is to

be weighed.

It is settled proposition of law that even if there are some

emotions, contradictions and discrepancies the entire evidence cannot

be disregarded. After exercising care and caution and shifting through

the evidence to separate truth from untruth, exaggeration and

improvement, the Court comes to a conclusion as to whether the

residuary evidence is sufficient to convict the accused. We all know

that minor discrepancies are natural and bound to occur in the
28

statements of the witnesses but where such contradiction is so fatal

that it cannot inspire confidence of the Court the prosecution case is

bound to fail which is a case here because the evidence of PW1 is not

above doubts at all.

Corroboration is not a rule of law, but one of caution as an

assurance. The occasion for the presence at the time of occurrence,

opportunity to witness the crime, the normal conduct of the witness

after incident, the nearness of the witness to the victim is pre-

disposition towards the accused, are some of the circumstances to be

kept in view to weigh the testimony of a witness. It is not at all the

quantum of the evidence but its quality and credibility that lends

assurance to the Court for acceptance. As we have already discussed

earlier, from the very beginning we have noticed that the witness was

not speaking the truth and she has contradicted herself apart from

the discrepancies and other major lacuna on the part of the

prosecution.

Importantly here, and most unfortunately, the Investigating

Officer has not been interrogated. Therefore, we cannot agree with the

submission made by Mr. Panda to uphold the order of conviction. We

are inclined to reverse the judgment of conviction and sentence

passed by the learned Court below.

We, therefore, set aside the order of conviction and sentence.

The appellants are acquitted of the offence alleged. Their

respective bail bonds shall stand discharged.

29

The Criminal Section is directed to send down the lower Court

records together with a copy of the judgment forthwith to the

concerned learned trial Court.

Urgent Photostat certified copy, if applied for, be delivered to the

learned counsel for the parties, upon compliance with all usual

formalities.

I agree.

(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)

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