Sahidullah Munshi, J.
This appeal is against the judgment and order of conviction dated 19th May, 2014 passed by the learned Additional District and Sessions Judge, 1st Court, Purba Medinipur at Tamluk in Sessions Trial No. 1(12) of 2012 arising out of Sessions Case No. 259(9) of 2012 convicting the appellant under Section 376(2)(f) of the Indian Penal Code and sentencing the convict to suffer rigorous imprisonment for life with fine of Rs.50,000/-, in default to suffer further imprisonment for 6 months for the offence punishable under Section 376(2)(f) IPC. In short the prosecution case is that on 26.05.2012 at about 10.00 am de facto complainant's daughter (victim girl / prosecutrix) aged about 5 years while playing outside her house after coming back from school, accused Gurupada Das called her and took her on his bicycle to a nearby bush near his house and then allured her in the name of buying biscuit and new garment. Thereafter, the appellant made a bed with short cloth. It has been alleged that the accused tried to make the victim sleep and committed offence upon her person. As the de facto complainant, accused and victim were known to each other because the appellant's brother Prasanta was the son-in-law of the victim's grandfather, there had been a conversation between the accused and the complainant over telephone and, thereafter, the victim was sent by the appellant to the complainant through his brother, Prasanta.
Alleged incident took place on 26th May, 2012 at 10.00 am but the complaint was registered on 31st May, 2012. In the complaint it was stated that due to treatment of the victim the complainant was busy and could not lodge the complaint in time.
The appellant faced trial before the Court of the learned Additional District and Sessions Judge, 1st Court, Purba Medinipur at Tamluk in Sessions Trial no. 1(12) of 2012 corresponding to Sessions Case no. 259(9) of 2012 to answer the charges pertaining to commission of offence punishable under Section 376(2)(f) of Indian Penal Code, 1860. The said case arose out of Nandakumar Police Station No. 148/12 dated 31.05.2012 under Section 376(2)(f) of Indian Penal Code, 1860 (G.R.- 777/12) which in turn had been registered for investigation on the basis of the aforesaid complaint lodged by the complainant Smt. Bhabani Goswami.
It is the further case of the prosecution that after commission of offence, the accused took the victim girl to a pond nearby his house washed her whole body and called the de facto complainant to take her daughter. It is the complainant's assertion that she took the victim immediately to Nandakumar Block Primary Health Centre (BPHC) and after hearing the entire incident from the victim, she lodged complaint at a belated stage as she was busy with her daughter's treatment.
On the basis of the written complaint lodged by the de facto complainant, mother of the prosecutrix, Nandakumar Police Station started a case being no. 148 of 12 dated 21.05.2012 under Section 376(2)(f) IPC and the accused pleaded not guilty and claimed to be tried.
In the trial, prosecution has examined as many as 13 witnesses. After consideration of the documents marked exhibits and the witnesses cited by the prosecution as also the examination of the accused under section 313 of the Code of Criminal Procedure, learned Court below came to a finding that the accused is guilty of committing the offence for which charge was framed.
On perusal of the charge as was framed on 18th December, 2012, Mr. Mondal appearing for the appellant pointed out that severe discrepancies appear whereby the learned Judge has simply implicated the accused with the charge of committing rape under Section 376(2)(f) of IPC as the accused had taken the victim to a jungle located nearby his house on a bicycle. According to him framing of the charge is wrong. He also pointed out that in the complaint it is clearly written by the de facto complainant that her daughter was lured by the accused by promising to buy biscuits and garment for her whereas in the charge instead of the word 'lure' the word 'seduce' has been used which is different from what has been used in the FIR. According to Mr. Mondal the entire prosecution proceeded on a wrong footing inasmuch as the framing of charge is defective.
PW1 is the victim. Her statement was recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure and the same has been tendered in evidence and marked as Exbt.4.
Mr. Mondal appearing for the appellant submitted that written complaint which was treated as FIR was lodged after a period of 5/6 days of the incident. Alleged occurrence is 26.05.2012 whereas the complaint was lodged on 31.05.12. According to him explanation for this delay has not been satisfactorily explained. He further submitted that version of the prosecution becomes more improbable as PW12 the Investigating Officer of this case deposed in Court that it was he who sent the victim for medical examination and the First Information Report which was lodged after a delay of 5/6 days, presumably, such delay was caused due to the victim's admission in BPHC. Mr. Mondal further submitted that the occurrence of the offence which was noted during framing of charge is not in harmony with the statement made by the victim girl before the learned Magistrate while recording her statement under Section 164 of the Code of Criminal Procedure inasmuch as according to the victim, appellant called her when she was returning from her school but during the framing of charge it was stated that the victim was taken away when she was playing in the bank of a tank near 'her house'. Mr. Mondal next submitted that during framing of charge the word 'rape' was nowhere mentioned which is violative of the provisions of Section 211 of the Code which deals with the contents of charge. According to Mr. Mondal, the charge is defective. He submitted that there are several discrepancies in the statements of PW1 and the same is contrary to her statement made under Section 164 of the Code and/or deposition before the trial Court. He submitted that important witnesses through whom the description of the occurrence could have been recovered have neither been cited nor have been examined by the prosecution. Therefore, prosecution has really acted in a half hearted manner and because of lack of evidence or weak evidence the prosecution case is bound to suffer a severe jolt, and, resultantly, the judgment and order of conviction is liable to be set aside and the appellant should be set free.
Mr. Mondal in course of his submission has relied on the following decisions:
* Krishan Kumar Malik -Vs. - State of Haryana reported in (2011) 7 SCC 130;
* Raja and Ors. -Vs. - State of Karnataka reported in (2016) 10 SCC 506;
* Bhaiyamiyan alas Jardar Khan and Anr. -Vs. - State of Madhya Pradesh reported in (2011) 6 SCC 396;
* Sudhansu Sekhar Sahoo -Vs. - State of Orissa reported in (2002) 10 SCC 743;
* Kanju Mohammed alias Khumani and Anr. -Vs. - State of Kerala reported in (2004) 9 SCC 193 & * T.T. Antony -Vs. - State of Kerala reported in (2001) 6 SCC 181.
Mr. Maiti, learned advocate appearing for the State submitted that the appellant was rightly convicted by the trial Court and the argument advanced by the Appellant that there are contradictions apparent on the face of the evidence adduced by the prosecution, according to Mr. Maiti, impugned judgment and order of conviction does not call for any interference. He submitted that the order under challenge should be confirmed. He submitted that evidence of the prosecutrix, when she is a minor, and the allegation is of rape, her sole testimony will be sufficient to inflict punishment upon the accused person or persons inasmuch as she is not an accomplice where corroboration is necessary. He submitted that when a minor is a victim of rape, according to the law declared by the Hon'ble Apex Court sole testimony of the prosecutrix will be sufficient to impose punishment on the accused. He submitted that even if there is any delay in lodging the complaint that itself is not so fatal that can lead to a situation where the accused can claim acquittal. He also submitted that the argument advanced by the appellant that there are several omission and/or attempt on the part of the prosecution to improve the case from where it started, but such improvement/omission does not amount to contradiction and even if there are contradictions those are not such an extent that it can lead to acquittal of the accused. Mr. Maiti further submitted that the law relating to the offence under Section 376 of IPC is very sensitive and severe punishment has been prescribed under the Code which all Courts are to consider with such seriousness as the Court requires because such punishments are deterrent in nature and Court should impose maximum punishment prescribed under the Code. He submitted that even slightest penetration would amount to the commission of offence under Section 376 of IPC and therefore, the evidence even if it is not a direct one but if the prosecutrix has stated it in her 164 statement before the learned Magistrate or before the Court the possibility of commission of such an offence should be believed by the Court, irrespective of sufficiency of evidence. He also submitted that the accused never took the plea during his examination under Section 313 of the Code of Criminal Procedure, to justify that he never committed the offence rather he has pleaded his innocence only. According to Mr. Maiti the suggestion given on the basis of the evidence adduced by the prosecution had even not been contradicted by the defence during its turn of cross-examination. As a result of which the appellant cannot get any order of acquittal but the order by which the accused has been sentenced and should remain un-altered. According to Mr. Maiti under no circumstances the appellant should get any order of bail.
Mr. Maiti in course of his submission relied on the following decisions:* Wahid Khan -Vs. - State of Madhya Pradesh reported in (2010) 2 SCC 9 * Dharam Das and Ors. -Vs. - State of U.P. reported in AIR 1973 SC 2195.
* State of H.P. -Vs.- Shree Kant Shekari reported in (2004) 8 SCC * Bhimrao Anna Ingawale and Ors. -Vs.- State of Maharashtra reported in AIR 1980 SC 1322 * Leela Ram (Dead) Through Duli Chand -Vs.- State of Haryana and Anr. reported in (1999) 9 SCC 525 * State of Punjab -Vs.- Gurmit Singh and Ors. reported in (1996) 2 SCC 384 Citing Wahid Khan (supra) Mr. Maity, learned counsel appearing for the State drew attention of this Court to the observations made by the Hon'ble Apex Court with regard to the medical examination report. He submitted that even if it is found in the medical examination report that hymen is intact, possibility of commission of offence of rape cannot be ruled out if there is a slightest penetration is evident and the Court might uphold the order of conviction. In the present case as we have already pointed out that occurrence of the offence is in doubt and commission of offence has not been conclusively proved beyond any reasonable doubt. This case has no manner of application. Corroboration of the prosecution's story by the medical evidence even if not taken into consideration in this case, prosecution has not proved that the appellant committed sexual offence upon the person of the victim.
Mr. Maiti next submitted a decision in Dharam Das (supra) (supra) of the Hon'ble Apex court to submit that exaggeration and falsehood in the prosecution evidence are on points destructive of the substance of the prosecution story. Prosecution case cannot be held to be not believable simply because of exaggeration or falsehood on point which do not touch the core of the prosecution story. Mr. Maiti submitted that such exaggeration need not be given undue importance. Each case has its own fact. The fact on which the evidence was led were duly considered by the Hon'ble Apex Court in the decision cited by Mr. Maiti. Ratio that has been laid down in the decision has no bearing in the present case where the present appellant has been able to show that the trial Court failed to appreciate the evidence on record. We have already pointed out that it is not a matter of exaggeration or falsehood on some points but the core issue whether the appellant took the victim or not has not been proved by the prosecution save and except the connecting link Prasanta brought victim to the house of the PW6. Nobody has seen the accused/appellant to take the victim girl from the house of the PW6 where she was playing after coming back from school and then she was taken by the accused on a bicycle and to a bush. She was playing with Puja before she was taken by the accused and she was brought by Prasanta to the house of PW6. Neither Puja nor Prasanta has been examined. The chain is incomplete. As to what happened in between is completely invisible. Therefore, this decision has no manner of application in this case.
State of H.P. (supra) cited by Mr. Maiti to argue that testimony of victim can be relied on even without any corroboration in material particulars. There is no doubt about this proposition of law but fact remains testimony of this victim should inspire confidence of the Court and to gain such confidence other circumstantial evidence on record have to be considered but simply of a victim saying that she has been subjected to physical violation someone cannot be penalized under the provisions of Section 376(2)(f) of IPC without commission of offence being proved beyond reasonable doubt.
State of Punjab (supra) has been cited on the same line by Mr. Maiti to show that corroboration is not necessary to consider the evidence of a victim of sexual assault. This well known decision of the Hon'ble Apex Court has laid down various guidelines to conduct a trial in respect of a child victim but the ratio in that case is not applicable in the present one. Question of corroboration by other witnesses may not be necessary but if the Court finds that the genesis of the case is wrong and unbelievable then the Court has a duty to consider the benefit of doubts to acquit the accused. Keeping in mind the principle laid down by the Hon'ble Apex Court in Pankaj -Vs. - State of Rajasthan reported in 2016 (4) AICLR 652 (S.C.).
As regards the submission made by the learned counsel for the appellant with regard to delay of 5 days in lodging the complaint the prosecution has sought to explain that such delay was caused as the complainant was busy with the treatment of her daughter/victim. The complainant in her written statement has stated that "... Prasanta Das left my daughter to my house. Then and there admitted at the Nandakumar Khejurbera B.P.H.C. She is admitted there until now. I am praying to you after knowing all about the incident from my daughter." This version of the de facto complainant does not get corroboration from the subsequent act and the evidence adduced by the other witnesses. The delay we have to consider whether justifiable or not. If delay of 5 days in lodging the complaint could be justified from the circumstances apparent on the record then one should appreciate that there are bona fide reasons for lodging the complaint at an earlier stage and if we find that the explanation which was sought to be given in the written complaint does not get corroboration by other evidence on record then Court cannot rely on such evidence and particularly, the version of the written complaint lodged by PW6 the mother of the victim. This PW6 in her evidence before the Court deposed that on the day of occurrence, her daughter, the victim, came back from I.C.D.S. School and thereafter, she was playing with her friend (Puja) on the bank of a tank located nearby the complainant's house. On coming to learn that one of her relatives took her daughter on a bicycle, after one hour she spoke to the appellant over cell phone and the appellant told her that he had taken the victim to his house, when the de facto complainant requested the appellant to send her daughter to her house at 3.00 pm and thereafter, the brother of the appellant, Prasanta brought the victim back to the de facto complainant. According to de facto complainant when she found the victim she noticed abrasion injury inside her mouth and took her to the B.P.H.C. for treatment. According to the de facto complainant victim was admitted to B.P.H.C. and there she remained in the hospital for about 6 days. She further stated that after 6 days the victim was taken to Purba Medinipur District Hospital and after 5/6 days she lodged the written FIR with the Officer-in-charge, Nandakumar police over the incident. While considering such evidence of PW6 it appears that the same shows a vital contradiction with that of the evidence of the Medical Officer (PW9) examining the victim and the contents of Exbt.2 being the injury report of the victim. We have given a serious thought to the contents in the injury report (Exbt.2) which was prepared by the Medical Officer /Gynecologist posted at Khejurberia B.P.H.C. on 02.06.2012. Medical Officer at B.P.H.C. who initially treated the victim deposed that on examination he found certain injuries at posterior vaginal mucosa - in the process of healing; small tear at external anal sphincter in the process of healing; 1 cm tear at the skin from posterior and of vaginal opening towards anal - in the process of healing; no active bleeding was found on the date of examination; no foreign body was detected at perineum or inside the vagina. He further deposed that on the day of admission, the patient was not in a position to speak due to severe bleeding and the doctor recorded statement of the victim's grandfather Narayan Goswami (PW2). According to him "Sonali sustained injury due to fall from a running bicycle". According to the victim's mother the occurrence was on 26.05.2012 and immediately she got her admitted in the B.P.H.C. where the victim remained for 5/6 days. But surprisingly, no document namely, bed-head ticket in support of the victim's admission in the hospital is forthcoming; doctor says the victim was in serious condition and not in a position to speak due to severe bleeding and was treated but no treatment sheet is available on record; no prescription is available also and the recording of examination as is found from the record is that on the day when the victim was admitted of her injuries were in the process of healing and "No active bleeding was found on the date of examination" if the patient was admitted on 26th May, 2012 and when the doctor says she was admitted with severe bleeding there is no reason to appreciate that the doctor did not prescribe for the patient on the day when she was admitted; there can be no reason to show that no active bleeding was found on the date of examination and why the doctor instead of writing "on the date of admission" wrote "on the date of examination". In the cross-examination, however, the doctor deposed that victim was admitted to B.P.H.C., on 26.05.2012 and she was examined by the doctor at about 1.00 pm. Doctor noted the injuries found on the clinical examination of the patient along with his opinion. Doctor further deposed that he recorded the opinion only on 02.06.2012.
It is quite suspicious firstly, because the patient was admitted without any bed head ticket, secondly, she was admitted on 26.05.2012 due to severe bleeding but no prescription was given; no treatment sheet is available on record; although the patient was under medical supervision constantly why the doctor recorded his opinion only on 2nd June, 2012. It will be more surprising to note the evidence of another doctor (PW10) who treated the victim subsequently is the doctor posted at Purba Medinipur District Hospital on 3rd June, 2012 where she was admitted on the reference being made by the B.P.H.C. Hospital considering serious nature of the patient. This doctor PW10 recorded the statement and prescribed medicine.
This PW10 on clinical examination found one old lacerated wound on the posterior fourchette. No other injury was found. He prescribed medicines for the patient for healing up the injury. On 05.06.2012 the patient was discharged from the hospital. Report of this doctor PW10 along with bed head ticket has been marked as Exbt.3. PW10 reveals that when the patient was admitted to Purba Medinipur Hospital the doctor recorded the statement of history of assault by Gurupada Das on 26.05.2012.
Exbt.3 reveals a clinical note-sheet signed by the doctor "Referred from Khejurbria B.P.H.C. H/O sexual assault by Gurupada Das as stated by Bhawani Goswami (Mother of the victim) 26/5/12. Abrasion inside the mouth seen. Vaginal examination not done at E.R. due to lack of examination facilities.
MOIC (signature illegible)"
Then again with some overwriting, '2' had been changed to 3/6/12 and it was recorded "H/o Sexual assault 9 days back by one Gurupada Das - Admitted & treated at Khejurberia BPHC..." We find again in Exbt.2, the medical report, issued by Khejurbera BPHC Hospital, that the finding of the doctor was made on 2nd June, 2012 under the heading 'remark' whereas on the reverse page of that report under item no.9 it is noted that finding at 6.45 pm on 2/6/12 under the head 'f' "Recording statement - 02/06/12 (today) on the day of admission.
(i) From patient - because of profuse bleeding and decreased consciousness and pain - patient was unable to give statement.
(ii) From Narayan Chandra Goswami - he stated that ...this injury due to fall on ground from a running cycle - in spite of asking whether any sexual assault."
In the selfsame page under paragraph 'g' it is written "For further investigation patient was referred to DH (Tamluk) next day (03/06/12) S/D Medical Officer Khejurberia B.P.H.C"
It is rather surprising that when a medical officer referred the patient on 2nd June, 2012 he writes that the patient was referred to the next day on 3rd June, 2012 whereas from the District Hospital's endorsement it appears that on 3rd June, 2012 she was treated by another doctor in another hospital vide Exbt.3. This shows a serious contradiction to the extent that the patient may have been treated at Tamluk Hospital where the bed head ticket and the doctor's report was marked as Exbt.3 and statement of the patient party was recorded but in the previous hospital where allegedly the victim was treated from 26.05.2012 it cannot be the doctor's opinion that she had been referred to on 03.06.12 for further investigation, when such endorsement was made on 02.06.12. It is quite possible that the endorsement of 02.06.12 by the Medical Officer under the seal of Khejurberia B.P.H.C was manufactured, subsequent to the treatment of the victim at Tamluk Hospital on 03.06.12. Although, in the remark column it is written that the injury is in the process of healing and other symptoms are also in the process of healing why was it necessary to refer the patient to District Hospital is also not available from Exbt.2. The more serious thing which has been noticed by us is that the treatment-sheet is not available in the hospital and it has not been produced before the Court. Screening of evidence of PW9 and PW10, if those are read together, it is apparent that the victim was not admitted at Khejurberia BPHC on 26.05.2012 as has been stated in the written complaint by PW6. While the complaint was registered on 31.05.12 and P.S. case no. 148/12 dated 31.05.12 was started by Nandakumar Police. It is more surprising to note that in his examination-in-chief the Investigating Officer deposed "I sent the victim girl to Khejurberia B.P.H.C. for medical examination. Subsequently, she was referred to Tamluk Hospital by the attending Medical Officer of Khejurberia B.P.H.C." This deposition if considered seriously it is apparent that the victim girl was sent for medical examination but not medically examined before the complaint was lodged and indicates that she was admitted for the first time on 3rd June, 2012 before the Tamluk District Hospital as is evident from two different note-sheet of the hospital on the same day by the doctor. One at the top of Exbt.3 without any date and the next note with date on 03.06.12 after overwriting '2'. There is no document in support of the admission of the victim on 26th May, 2012 the only endorsement is of 02.06.12 when the FIR was forwarded to the concerned Magistrate that will be apparent from the First Information Report. This is also a lacuna on the part of the prosecution as to why the case was referred to the learned Magistrate on 02.06.12 while the FIR was lodged on 31.05.12. From the cross-examination of the Investigating Officer it further reveals that FIR was received on 21.05.12 and on the same day the case was endorsed to him for investigation but he did not record the statement of Bhabani Goswami (PW6). However, IO tried to show an excuse for not recording statement of PW6 on the ground that the victim girl was admitted in hospital but when in cross-examination he was asked although, the victim was released on 05.06.12 why could he not record the statement, no answer is forthcoming. In such view of the case the FIR does not get any corroboration from the evidence on record. Having regard to the falsity of the FIR the charge brought against the appellant gets eroded and the accused will surely get the advantage of benefit of doubt. It is true that the victim girl was produced before the learned Magistrate and her statement was recorded under Section 164 of the Code of Criminal Procedure. The learned Magistrate was examined as PW11 where he deposed in Court that he recorded statement of the victim but there are some contradiction with regard to the statement of the victim girl and the evidence of the mother (PW6), grandfather (PW2). This PW2 the grandfather in his cross-examination deposed that accused Gurupada Das is the elder brother of his son-in-law /Prasanta. It is on record that after it was learnt by PW6 that her daughter was taken away by the accused she had talk over cell phone with the accused when she requested him to send back the victim and thereafter, this Prasanta brought the victim to the house of PW6. This PW6 is an important witness who made the victim immediately after the occurrence. There is serious allegation that the victim was bleeding profusedly after the commission of offence by the accused but no answer is forthcoming on behalf of the prosecution why Prasanta was not cited as a witness who could have given the vivid picture of the injury, severe or ordinary or not at all of the victim. Unfortunately, this witness has not been examined for the reason best known to the prosecution. The presence of this witness is important when we find that this Prasanta is an important witness. A suggestion was given on behalf of the accused in cross-examination that Prasanta has no enmity with the accused. In this case further lacunae is apparent to the extent that neither the cell-phone was seized nor any attempt was made to recover the telephonic conversation between the accused and the mother (PW6) of the victim (PW1) apart from the fact that Prasanta has not been examined by the prosecution. We have noticed another discrepancy in the matter when in the charge framed by the Court below it has been mentioned that accused took the victim to a jungle nearby his house by riding on his bicycle whereas PW2/grandfather in cross-examination deposed "There is no bush by the side of the said road." Further contradiction we have noticed is that the victim girl PW1 deposed in Court "I came back from the school and thereafter, I started playing on the bank of a tank located near our house. At that time Gurupada came there and took me to a nearby bush." The statement before the Court does not corroborate the statement recorded under Section 164 Cr.P.C. before the learned Magistrate.
It is also on record from the evidence of PW2 and PW6 who deposed that the victim was playing when she was taken away by the appellant to a place near his (accused) house but this is contrary to what the victim herself in her evidence in Court stated. She stated that the appellant allegedly took her to a bush near her (victim) house.
Another discrepancy is apparent on the evidence that victim girl while playing with her friend (Puja) near the bank of a tank near her house when allegedly the victim was taken away by the accused. This "Puja" would have been an independent child witness who could assist whether or not the victim was taken by the accused but this Puja has not been examined by the prosecution. She was not even cited as a witness by the prosecution. This stand taken by the prosecution caste a shadow of doubt which has not been removed by any cogent evidence. It has been already pointed out that victim was in the custody of the accused after the commission of offence, as has been deposed by the mother PW6 of the victim and this PW6 had a conversion with the accused for sometime when PW6 asked the accused to return the victim to her house but ultimately, the victim came back to the house of PW6 with Prasanta, brother of the accused. This Prasanta took the girl from the custody of the accused and supposedly, returned her to her mother PW6 but this Prasanta has not been examined by the prosecution. He was not even cited as a witness by the prosecution and although, it has been alleged that the victim was profusedly bleeding after the incident took place. In her statement before the learned Magistrate the victim stated that after the occurrence of the alleged offence the accused bathed the victim and thereafter, Prasanta took her to the victim's mother. Since Prasanta has not been cited as a witness and not examined it gives a shadow of doubt not explained by the evidence of Investigating Officer. The other possible reason for the accused being implicated in the instant case that he was the brother of Prasanta having strained relationship with him and when Prasanta is the son-in-law of PW2 /grandfather of the victim. From the cross-examination of PW2 it is apparent that there might be some enmity between Prasanta and Gurupada as has been suggested by the prosecution by the defence but this has not been clarified by the prosecution even when the IO had been examined. The Investigating Officer has drawn a sketch map but in that sketch map he has not drawn the location of the so called bush as is evident from the deposition of PW6, the complainant mentioned in the written complaint. In his cross-examination the Investigating Officer admitted that "The bushes are not shown in my sketch map." Admittedly, the victim was released from Purba Medinipur District Hospital on 05.06.2012 as is revealed from Exbt.3, it is not understood why the victim was examined by the Investigating Officer on 12.06.2012 and nothing has been recorded in support of such delay. The other lacking on the part of the prosecution namely (1) victim's wearing apparels were never sent to FSL despite those were seized by the Investigating Agency; (2) Potency test of the accused has not been done by the Investigating Authority; (3) Bicycle through which the victim was taken away has never been seized, although, victim never had stated either in her 164 statement or in her deposition before the Court that she was carried by the accused through a bicycle.
Krishan Kumar Malik (supra) has been cited by Mr. Mondal to argue that delay in lodging of FIR is fatal for the prosecution case. This is a settled proposition of law that if there is any delay prosecution has to satisfactorily explain such delay. If no explanation is offered by the complainant why this delay has been caused prosecution case must suffer a severe jolt. In the instant case as we have already pointed out the genesis of the case appears to be doubtful and certainly the complaint was lodged on 31.05.12 whereas the commission of offence took place on 26.05.12 at 10.00 am. We have already pointed out that she was examined by the doctor for the first time on 02.06.2012 and the Investigating Officer in his evidence stated that the complaint was received on 31.05.2012. in between 26.05.12 and 31.05.12 what happened, no explanation is forthcoming. Although, from the formal FIR it is revealed that distance between place of occurrence and the police station is only 6 km. There is also no explanation as to why the complaint was forwarded to the learned Magistrate on 2nd June, 2012 while it was received by police on 31.05.12. Therefore, the decision cited by Mr. Mondal is applicable in the present case and apposite on the fact situation of the present case.
Mr. Mondal has also pointed out before this Court that according to Section 6 of the Evidence Act the prosecution is under obligation to examine the res gestae witnesses. In the present case both Puja and Prasanta appear to be res gestae witnesses otherwise the chain could not be said to have been completed. Thus, these two persons would have been the best wishes to lend support to the prosecution story.
Section 6 of the Evidence Act is set out below
6. Relevancy of facts forming part of same transaction.-- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Section 6 is of the Act is an exception to the general rule where even hearsay evidence becomes admissible if the evidence sought to be adduced is contemporaneous with the acts and there should not be an interval which would allow fabrication. Admittedly, here the victim was playing with Puja just before she was being allegedly taken away by the accused and she was handed over by Prasanta to her mother allegedly taking her from the accused, therefore, in absence of examination of these two persons the missing link are not found complete.
Raja and Ors. (supra) cited by Mr. Mondal to argue that although it is settled principle of law that evidence of prosecutrix in cases of rape, molestation and other physical outrages may be construed to be of an injured witness, it should be so much so that no corroboration is necessary but at the same time it is ruled that an accused must also be protected against the possibility of false implications. This decision of the Hon'ble Apex Court distinguishes the ratio ruled in State of H.P. (supra) reported in (2004) 8 SCC 153.
In our opinion when the prosecution has not been able to prove the commission of offence by the accused to the hilt as obligated in law the accused person is definitely entitled to the benefit of doubt and there is no other alternative before the Court but to allow the appeal and to hold that prosecution has not been able to prove the case beyond reasonable doubt.
Bhaiyamiyan (supra) has been cited by Mr. Mondal on the same ground for which Krishan Kumar Malik (supra) has been cited. This decision also deals with the fate of the prosecution case where delay in lodging complaint has not been properly explained. In this case there was a delay of 60 hours and FIR could not be lodged at the police station, although, the distance was only 7 km. the Hon'ble Apex Court held that the explanation for delay not satisfactorily explained.
Sudhansu Sekhar Sahoo (supra) has been cited by Mr. Mondal on the question and/or manner of appreciation of evidence. This is also on the issue of delay in lodging the complaint.
Next decision cited by Mr. Mondal in T.T. Antony (supra) on the issue whether immediately after lodging of complaint and the police initiated the case, it should be transmitted to the Magistrate within 24 hours. In the present case the case was initiated on 31.05.2012 whereas it was transmitted to the Magistrate on 02.06.2012 but no satisfactory explanation has been offered by the prosecution. Resultantly, the prosecution should suffer a prejudice and the accused gets the benefit of doubt. Section 154 of the Code of Criminal Procedure deals with lodging of a complaint in respect of a cognizable offence, Section 154 of the Code of Criminal Procedure is set out below:
S.154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and
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such officer shall have all the powers of an officer in charge of the police station in relation to that offence. Every information relating to the commission of a cognizable offence, if given orally by the complainant shall be reduced into writing and thereafter, it directs that it would be read over to the informant. Section further requires that every such information whether given in writing or reduced to writing shall be signed by the informant and thereafter, the substance of such information shall be entered into the diary. It will be relevant to note that a further directive contained in Sub-section (1) of Section 157 Cr.P.C. provides that immediately after receipt of information, the Officer-in-charge of the police station shall send the report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and thereafter, to proceed to investigate or to depute his subordinate officer to investigate the facts and circumstances of the case. Sub- section (2) of Section 157 entitles the informant to receive a copy of the information as recorded under Sub-Section (1) free of costs. Sub-section 3 says that in the event of an Officer-in-charge of a police station refusing to record information as provided under Sub-section (1), the person aggrieved thereby may send the substance of such information in writing and by post with the superintendant of police concerned who has given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by Cr.P.C., if he is satisfied that the information discloses the commission of a cognizable offence. Any police officer to whom investigation is entrusted by the superintendant of police has all the powers of an officer-in-charge of the police station in relation to that offence. In that view of the matter and the requirement under Section 157 Cr.P.C the purpose of making this provision in the Code is to ensure that there is no possibility of extortion or exaggeration in the complaint before the police. Mere delay in dispatch of the FIR itself may not be good ground to throw away the prosecution case in its entirety but sending the report to the concerned Magistrate is an important circumstance which provides a basis to raise suspicion that the FIR is the result of consultation and deliberation and it was recorded much later than the date and time mentioned in it and discloses that the investigation is not fair. Therefore, this important criteria, if not fulfilled and subsequently if the prosecution is not able to highlight the reasons therefor, the prosecution case is bound to suffer prejudice. Evidence of PW9, PW10 and PW12 if read together it cannot be wiped out that there was a possibility of not the accused having committed sexual assault upon the victim inasmuch as PW2 stated before the Doctor (PW9) that PW1 victim suffered injury due to fall from a running bicycle and doctor in the note- sheet noted that PW2 stated that injury caused due to fall from the bicycle despite asking whether was there any sexual assault or not. This gives rise to a suspicion in the evidence adduced by the prosecution and it does not show that prosecution has been able to prove the case against the accused beyond any reasonable doubt. Therefore, judgment of conviction delivered by the Court below and sentence imposed in pursuance thereof cannot be sustained and the same is liable to be set aside. Accordingly, the order of conviction and sentence are hereby set aside. The accused/appellant is set free. The concerned correctional Home is directed to release the appellant forthwith. Department is directed to communicate a copy of this order to the concerned jail authority. The Criminal Section is directed to send down the records to the learned Court below 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. Md. Nizamuddin, J.