Calcutta High Court (Appellete Side)
Panchu Mondal @ Panchu Gopal Mondal vs The State Of West Bengal on 29 November, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:-
The Hon'ble Justice Sahidullah Munshi.
And
The Hon'ble Justice Subhasis Dasgupta.
CRA No.327 of 2014
Panchu Mondal @ Panchu Gopal Mondal
Vs.
The State of West Bengal
For the Appellant : Mr. Partha Sarathi Bhattacharya
(Amicus Curiae)
For the State : Mr. N.P. Agarwala, Adv.
Mr. Arindam Sen, Adv.
Judgment on : 29.11.2019
Subhasis Dasgupta, J:-
This Criminal Appeal No. 327 of 2014 is directed against the judgment and
order of conviction dated 20.03.2014 and 21.03.2014, passed by learned
Additional Sessions Judge, 2nd Fast Track Court, Alipore, South 24- Parganas in
Sessions Trial No. 4(2) of 2009, arising out of Sessions Case No. 53(1) of 2009,
convicting the appellant under Section 376 (2) (f) of Indian Penal Code, and
thereby sentencing him to suffer rigorous imprisonment for eight years, and fine
of Rs.5000/- (rupees five thousand), in default Simple Imprisonment for two
months.
The factual position in a nutshell, as established during trial, is that
father/complainant, a man lying below the poverty line maintaining his life by
begging from others, and having tuberculosis at the relevant point of time, sent
his victim daughter, a seven year old girl, after returning to home, for the
purchase of puffed rice (muri) from a nearby shop at about 8 P.M. in the night on
13th October, 2008.
The victim daughter failed to return home within a reasonable point of
time. The father/complainant became anxious of her return, when
victim/daughter returned home with evidence of bleeding from lower private
parts of her body. On being interrogated by the father/complainant, the victim
daughter replied that on her way to shop accused appellant, while playing
carrom in a club situated by the side of road, suddenly appeared before her and
took her behind a library, near the chamber of a latrine, and committed rape
upon her.
Witnesses like PW-8 (Akashay Mondal) and PW-4 (Sudeb Sarkar) found
accused/appellant attempting to flee away, and while catching hold of accused
appellant, the accused appellant managed to flee away leaving a confession of his
guilt to them.
On the basis of this complaint, police took up investigation, produced the
victim for recording her statement under Section 164 Cr.P.C., but her statement
could not be recorded on the ground that she was highly frightened for she being
threatened with dire consequence by the accused/appellant, if she dared to
disclose his misdeed to anybody else.
Victim was, however, medically examined, apart from the medical
examination of accused/appellant. Wearing apparels of the victim was seized
during investigation, and sent for F.S.L examination and report. On conclusion of
investigation, police submitted charge sheet.
The Trial Court after framing charge against the appellant under Section
376 (2) (f) of the Indian Penal Code examined as many as nine (9) witnesses,
including parents of the victim girl (PW-1 and PW-3), victim herself (PW-5) and
two (2) other witnesses namely PW-4 and PW-8, who are said to have caught hold
of accused appellant immediately after the occurrence while attempting to flee
away and before whom the accused appellant was alleged to have confessed his
guilt by making an extra judicial confession, and the Investigating Officer/PW-9
of this case.
The court conducting trial, after collection of evidence proceeded to hold
the appellant guilty of offence under Section 376 (2) (f) of the Indian Penal Code,
relying upon the evidence of victim (PW-5), her parents (PW-1 and PW-3), two (2)
independent witnesses (PW-4, PW-8) together with medical examination report of
the victim (Exhibit-6), transpiring existence of small tear found on her hymen.
Learned advocate Mr. Partha Sarathi Bhattacharya, appointed as amicus
curiae in this case for appellant, sought to assail the order of conviction with an
ultimate object of creating a doubt in the prosecution version so that accused
appellant could be favoured with benefit of doubt in managing an order of
acquittal and proceeded to argue extensively advancing multiple grounds,
mentioned as hereunder:
1. That though victim could disclose the name of her culprit to witnesses
like PW-4 and PW-8, as available from the testimony of the PW-1/father
of the victim, but the victim girl failed to make statement before the
learned Magistrate under Section 164 Cr.P.C. for she being highly afraid
of, as she was subjected to threat with dire consequence by the accused
appellant soon after the incident, and such stand of prosecution,
according appellant, would render the prosecution story highly
improbable.
2. That though the occurrence was held on 13.10.2008 in the night at
about 8 P.M., the F.I.R. was lodged in the P.S. on 14.10.2008 at 15.35
hours, which was highly indicative of concoction and embellishment in
the version of the prosecution case during the intervening period of time
(delay), the benefit of which, according appellant, would go in favour of
appellant. The delay offered in the F.I.R that since it was late night, the
F.I.R. could not be lodged on the self-same day of occurrence, should
not be treated to have been duly explained, and thus unexplained delay
was highly suggestive of after thought production of a case.
3. That the victim raised no resistance raising any alarm, while subjected
to rape, which was not supportive of a case of rape, as sought to
establish during the trial.
4. That the medical examination report of the victim could not be
considered to be of highest significance in the absence of examination of
the doctor, medically examining the victim girl.
5. That since it was a manufactured case, simply to serve ulterior purpose
of some designed people, who are the followers of a club, examined as
witnesses in this case, opposite to the club of the appellant, this false
case was instituted out of club rivalry, which the Trial Court ought to
have taken into account, and non-consideration of which rendered the
conviction to be not sustainable.
6. That the presence of small tear alone in the absence of any supporting
injury in the vaginal canal of the victim girl would not be determinative
of a case of rape, when the victim admittedly is a tender aged girl,
fascinated to playing and jumping, while playing in the field.
7. That for the manifest contradiction found in the testimony of witnesses,
in particular PW-4, PW-5 and PW-8, while making correlation with
evidence of PW-9/I.O, the allegation of having committed rape by
accused/appellant upon victim daughter appears to be shrouded with
complete doubt, which would suggest to favour the accused/appellant
with an order of acquittal, extending him the benefit of doubt.
Learned advocate for the respondent/State supported the order of
conviction and the sentence thereunder submitting that the contradictions as pointed out by the learned amicus curiae from the evidence on record, would not matter much as the same would not reach to the very root of the prosecution case, while considering the totality of the circumstance.
Thus, according to respondent/State the minor discrepancies on trivial matters, as pointed out by learned amicus curiae would not affect the very core of prosecution case, as the same would not offer ground for rejection of evidence as a whole.
Since the centre point of challenge raised in this case by the learned amicus curiae targeted to derive capital from the contradictions, we are of considered opinion that we should address the points individually, as emphasised during the course of submission, advanced by the learned amicus curiae.
Victim girl, admittedly could not give any statement under Section 164 Cr.P.C. on the ground that she had been threatened by accused appellant with dire consequence. Whether this threat perception of victim prompted her not to make any statement before the learned Magistrate even after she was produced before the learned Magistrate for recording her statement under Section 164 Cr.P.C. or not, this point we need to deal with by following discussion.
Learned amicus curiae for the appellant argued with all emphasis that failure to make statement before the learned Magistrate by the victim girl even after she was produced for the purpose taking a plea that she had been highly frightened for the threat of the accused appellant would not be a believable version, as she could make disclosure to some others, but not to learned Magistrate. According to appellant, it was a great suspicion.
The prosecution case was set in motion, depicting the victim girl to be a seven year old girl at the time of occurrence, having no minimum educational background at the moment. In her deposition, victim girl/PW-5 frankly admitted that she had entered the chamber of learned Magistrate on the relevant date, but she did not disclose to learned Magistrate out of fear, as she had already been threatened by the accused appellant. This part of evidence of the victim girl has a direct bearing on the order of learned Magistrate, dated 10.11.2008, when the victim girl was produced for recording her statement under Section 164 Cr.P.C. Learned Magistrate by his order dated 10.11.2008, observed that the statement of the victim girl could not be recorded as she was unable to understand the nature and consequence of the statement, and she was also unable to give any reply by rationale answer to the question.
Thus, the learned Magistrate failed to record the statement of the victim girl under Section 164 Cr.P.C., for failure of the victim girl to comprehend the question put to her by replying reasonable answer to the questions. From the cross-examination of PW-3, being the mother of the victim girl, it appears that there left sufficient evidence that because of extreme poverty in the family of victim girl, the victim daughter had to be put up in a home, as her parents failed to arrange both ends meal to victim girl, far to speak off her education.
The accused appellant is a neighbour of parents of victim girl. He is a known personality to the victim girl. Her threat perception at the instance of accused appellant should not be brushed aside, on the ground that it continued to operate in her sub-conscious state of mind, while causing production before the learned Magistrate for recording her statement. The failure to comprehend the questions, put by learned Magistrate, might be a consequential impact of threat given by accused/appellant to victim girl, or in other words, such threat perception of victim girl, might have upset her mental faculty resulting in her comprehension problem of such question of learned Magistrate. Thus, in all probabilities failure to give statement, in such state of affairs could be a product of being highly terrorised, a panic stricken state, what was exactly the version of victim girl. So, failure to give statement before the learned Magistrate by the victim girl, as such would not call for rejection of her substantive evidence, adduced in this case. There left no occasion for the suspicion to come into play, as strongly contended by appellant.
The settled proposition is that if the delay is not satisfactorily explained in lodging the F.I.R., there will be room left for concoction and embellishment in the version of the prosecution story. The question thus, requiring decision is whether the delay caused in the institution of this case was adequately and satisfactorily explained thereby eliminating the possibility of embellishment and concoction or not.
According to learned amicus curiae, the delay so caused in lodging the F.I.R. went unexplained satisfactorily, the benefit of which would go in favour of the accused appellant.
The receiving endorsement found in the written complaint conspicuously revealed that it was received in police station on 14.10.2008 at about 17.35 hours for an occurrence having held on 13.10.2008 at about 8.00 P.m. in the night, when victim girl was sent for purchasing puffed rice from a nearby grocery shop situated in the locality of the victim's house. PW-8 claiming to have found accused appellant fleeing away from the place of occurrence, stated in his cross- examination that he along with victim girl, her parents and PW-4 had reached to police station at about 4.00- 4.30 P.M. The occurrence was admittedly held on 13.10.2008 at about 8.00 P.M. in the night. In the F.I.R. it was mentioned that since it was late night, the complainant/father could not come to the police station on the date of occurrence. It is quite natural that the parents of the victim girl will become perplexed with such unforeseen situation for their daughter having fallen a prey to the sexual anger of accused appellant, and naturally will waste some time to seek course of action for the adequate punishment provided under the law.
Evidence is there that the father of the victim girl was suffering from tuberculosis and receiving treatment at the relevant point of time and further he would maintain his life including her dependants by begging from others. Upon visualising such attending facts together, the delay caused in lodging the F.I.R., as strongly argued by the learned amicus curiae, would not stand, because there was sufficient explanation, not only offered in the F.I.R. itself, but also in the testimony of parents of the victim describing the sequential events that had taken place in the instant case together with the evidence of PW-8 disclosing the time, when complainant with others had been to P.S. taking victim girl with them.
Shelter may be taken to a decision delivered in the case of Tulshidas Kanolkar vs. The State Of Goa reported 2003 (8) SCC 590, wherein it was propounded that delay in lodging the First Information Report could not be used as a realistic formula discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider for any explanation has been offered for the delay or not. Once it is offered, the court is to only see whether it is satisfactory or not. In case, if the prosecution fails to offer satisfactory explanation for the delay, there is possibilities of embellishment, exaggeration in the prosecution version on account of such delay, on the other hand, satisfactory explanation of the delay is weighty enough to reject the pleas of false implication or vulnerability of the prosecution case. The mere delay caused in lodging the FIR containing a satisfactory explanation would not render the prosecution version brittle.
It would be necessary to bear in mind the background of this case including the stratum of the society to which the victim belonged. The physical scar may be healed up. But the mental scar will leave an indelible mark on the mental faculty of a victim of seven year old girl, with which the victim girl has to survive her rest part of life.
It would be profitable here to refer the observation of the Apex Court made in Para-6 of a judgment rendered in the case of Dinesh @ Buddha vs. State of Rajasthan reported in (2006) 3 SCC 771, which may be reproduced hereunder:
Para-6: "Sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Bodhisattwa Gautam v. Subhra Chakraborty, the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished fundamental right, namely, the right to life contained in Article 21 of the Constitution. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitised judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos."
The parents of victim daughter like PW-1 and PW-3 having learnt their daughter to have been ravished, ordinarily in context with their socio-economic background would not dare to report the incident to police station seeking grievance against the accused appellant, as they needed some time to direct their mind set in such a direction, so that they could proceed courageously to police station proposing adequate punishment for the offence being committed upon their victim daughter, because they knew that their victim daughter would have to live in the society, taking such stigma of being sexually violated. Therefore, passing of some reasonable time was quite natural and normal, which was just for contemplating the action to be taken against the accused/appellant. The delay as such in the given set of facts would not be fatal for the prosecution.
According to learned amicus curiae, alarm not being raised by the victim girl at the time of occurrence, the resistance not being put up by the victim, while becoming victim of rape, prosecution story was highly improbalized.
The age of the victim girl at the time of occurrence, compared to the age of the accused/appellant, who was 29/30 years old, (vide evidence of PW-8) would be a subject of strong consideration for decision on this issue. The testimony of the victim girl on such score would be of paramount consideration. Victim girl/PW-5 spoke in her testimony that on the relevant date and time, while she was on her way to grocery shop for the purchase of puffed rice at the request of her father/PW-1, the accused appellant forcibly took her away to the backside of a library gagging her mouth, so that she could not raise any voice. There was darkness at the backside of such library, where the victim was taken by the accused appellant and committed rape on her after removing her undergarment. The accused appellant was playing carrom board at the relevant point of time, and the library where the victim was taken to, was about 50 m (fifty metre) away from the village main road, known as Mallickkathi Main Road (vide evidence of PW-8).
Victim girl further testified in her cross-examination that while taking her away to the back side of library, accused gagged her mouth by one hand, and by another hand he caught hold of her, so that she could not flee away. Victim girl thus graphically demonstrated the manner in which she was taken to the scene of crime and as to why she could not raise any voice against the unwanted acts of the accused/appellant. The situation thus described by the victim herself in her testimony lent assurance that under a compelling circumstances, she was taken to the back side of the library after over powering her so that she could not raise any voice, and thus became a victim of being violated at the instance of accused/appellant. The facts and circumstances as vividly described by the victim herself would be quite probable on her part of not raising any alarm, when she was forcibly taken to back side of the library by the accused/appellant for getting her sexually violated. The circumstances left no scope to victim/appellant to raise any voice against the misdeeds of the appellant. Thus, for not raising any protest or by not raising any alarm, the prosecution case will not be improbalised. The argument thus advanced by the learned amicus curiae, in our considered view, would not deserve acceptance.
Admittedly, no age proving document of the victim girl could be collected in this case, ossification test for the determination of the age of the victim girl could not be held, and further the Doctor who medically examined the victim girl could not be examined during the trial of this case.
Referring such defects of investigation, learned amicus curiae proposed for meritorious acquittal of appellant alleging that the ordinary testimony of the victim girl claiming to have been ravished could not be objectively established with the aid of medical evidence of Doctor examining the victim girl. The evidence of I.O (PW-9) revealed that he had collected the medical report of the victim, marked as "Exhibit-6", after victim was medically examined by Doctor Rajsheker on 15.10.2008 i.e. the day following the institution of this case in P.S. No explanation was offered for non-examination of the Doctor, who medically examined the victim girl. There might be thousands of probabilities for not collecting the testimony of the Doctor, who treated the victim girl. The Doctor examining the victim girl might have left the world, might have been rendered physically incapacitated, might be his present address could not be easily procured for securing his attendance before the court without undue delay. These are some of the instances, but all such probabilities could not be set out exhaustively by adopting straight jacket formula. It varies from case to case for pecularity of circumstances involved in each case. The question is whether the non-examination of the Doctor treating the victim girl would render the testimony of victim girl an improbable episode or not.
In absence of collection of any contemporaneous document revelaing the age of victim girl, and for not putting up the victim girl to ossification test, the oral testimony of mother of victim girl (PW-3) and that of victim girl herself (PW-5) revealing the age of victim girl at the time of occurance will be of higest value in application of the provision of Section 3 of Evidence Act. Upon consideration of such oral testimony, the victim girl could be safely taken to be less than 12 year old girl, not reaching the age of giving consent. Non-examination of the Doctor treating the victim girl might be a matter attributable to the incompetency of the prosecuting agency, but defects in the investigation by itself in our perception, cannot be a ground for acquittal.
This point, as raised by learned amicus curiae, was addressed by the Apex Court in the case of C. Muniappan & Ors vs State Of Tamil Nadu reported in 2010 (9) SCC 567 and the relevant portion of Para-55 of such decision may be mentioned as hereunder:
55. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such laplses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.
The important question stressed to be taken care of is the obligation on the part of the court to examine the prosecution evidence as a whole carefully to find out whether the said evidence is reliable or not, and to ascertain as to whether such lapses affect the object of finding out the truth.
The medical examination report was marked as Exhibit in this case without any objection. It was not the argument raised by the learned amicus curiae that victim was never medically examined by any Doctor at the post occurrence stage. What was argued by learned amicus curiae was that the medical evidence marked as "Exhibit-6" would not be sufficient enough to justify a case of being rapped, as developed in this case. As has already discussed in this case that minor girl within a age group of 7 to 10 year old was ravished in this case, so if the lapse, or omission of the negligent investigation, or the omissions on the part of the prosecuting agency is given primacy, the very object of criminal trial would be frustrated. Therefore failure of the investigation and incompetency of prosecuting agency would not matter much in the given set of facts, where the testimony of the victim girl would otherwise believable, acceptable and inspire confidence.
Regarding the club rivalry leading to false implication of the accused appellant, our attention was drawn to the cross-examination of PW-1 to PW-8 by the learned amicus curiae, while strongly arguing for acquittal of the appellant. The cross-examination of such witnesses transpired significantly that there were two club situated in the village and the witnesses are followers of one club, while the accused appellant was a supporter of the other club. There was a fighting between the club members of such two club. There occurred a dispute with regard to the construction of a club of accused appellant over the possession of land. The members of the two club are hostile to one another. There was quarrel between the members of the two club, which ended in institution of a case and counter case against each other. The parents of the victim including the victim girl (PW-1, PW-3 and PW-5) maintained a good relationship with the club members, who are witnesses in this case being opponent to the club of accused appellant. PW-3/mother of the victim girl found members of the two club fighting on a issue. Referring such evidence, as discussed above, learned amicus curiae sought to establish that since accused appellant had taken a lead role during the fighting, held few months before the incident, between the members of two club, de-facto complainant family had been instrumentalized capitalising the victim girl to manufacture a false case of rape against the accused appellant simply to harass him and also to serve ulterior purpose of some designed people, who are the club members being opponent to the accused appellant.
Evidence is very conspicuous that complainant father, his wife and victim maintained a good relationship with the club members, who are made witnesses in this case, and the accused appellant belonged to opponent club of such witnesses adduced in this case.
Evidence is further on record that the complainant family was below the poverty line and the father of victim girl would maintain his family members by begging. Neither parents of the victim, nor the victim herself were/was directly involved in the affairs of the club of witnesses, nor they had their patronage to such club. There was no evidence that witnesses examined, rendered substantial financial assistance financially to the complainant family members for maintaining their life, without which it would be difficult to believe that whatever they deposed in this case, was the product of exercise of influence by the witnesses, examined in this case during trial. Maintaining a good relationship, or even keeping a visiting term with the club members would not necessarily suggest that the witnesses like PW-1, PW-3 and PW-5 were completely instrumentalized by the club members like PW-2 and PW-4 to PW-8, simply to serve their ulterior purpose in consequence of club rivalry. The credibility of such witnesses should not be doubted on this score that the some club members, who adduced evidence in this case, came forward to give assistance to complainant father after having discovered the victim to have been ravished by accused appellant. The argument of the learned amicus curiae, as such would be without any significance.
From the scheme of the argument as advanced by the learned amicus curiae for the appellant, it appears that undoubtedly it pointed out to a stand that presence of small tear alone in the hymen of the victim girl, in the absence of any other supporting injury in the vaginal canal of the victim girl would not be determinative to hold the accused guilty of the offence. As has already discussed that point of challenge raised in this appeal by the appellant is with regard to the insufficiency or scanty material found in the hymen of the victim girl, but not with regard to the non-examination of the Doctor, medically examining the victim girl. So the most pertinent question required to be considered by us is whether small tear found in the hymen of the victim girl would lend substantial support/assurance to the testimony of the victim girl claiming to have been ravished by the accused appellant or not.
Our attention was drawn to the medical examination report of the victim girl, marked as exhibit-6, which was collected by the I.O. during investigation. In such report, the hymen of the victim girl was found to sustain small tear, in support of which the victim stated before the Doctor at the time of her examination at 12 noon on 15th October, 2008, that she had been taken away by the accused appellant and then subjected to rape. The cross-examination of I.O./PW-9, revealed that besides the small tear found in the hymen, no other injury, like inflammation, bruise etc. were found to occur. All other parameters during the course of medical examination of victim girl were found to be within normal limit. The important aspect to be taken care of as to why victim was prompted to make such statement before the Doctor at the time of her medical examination, when she had neither any ill-feeling or pre-existing animosity, nor hostility of her parents with the accused appellant. The testimony of victim girl/PW-5 thus claiming to have been ravished by the accused appellant, received substantial corroboration, ratification from Exhibit-6 (medical examination report of the victim girl). The allegation of having committed rape upon the victim girl by the accused appellant was scientifically established beyond all reasonable doubt.
We must not be unmindful to the cross-examination of the victim, transpiring that she used to play and mix up with 'para friends' and when she even used to jump during her play, which in our opinion may be relevant, but not significant in context with medical examination report of victim girl. When the victim girl was examined medically by the Doctor on the day following institution of the case, the small tear found in the hymen would necessarily connect the act of the accused appellant, complained of, with the injury found on the victim, though small tear in the hymen. The probability of having committed rape would not be up set by the materials transpired in the cross-examination of the victim girl, asserting to have played with 'para friends' and taking jump during such play leading to such small hymenal tear. Though no definite opinion was given by the Doctor in the medical examination report of the victim girl but while making co-relation with the testimony of PW-5/victim girl, the one and only inevitable conclusion is that victim was sexually violated by the accused appellant, the reference of which was found noted by the Doctor during her medical examinations, mentioning a case of small tear found in the hymen of the victim girl. Absence of accompanying injury in the vaginal canal of the victim girl, though relevant, but always not determinative in a case, where a victim girl of less than 12 year old fell a victim of rape, who admittedly, had no ill-feeling or animosity with the appellant at the relevant point of time.
Regarding the contradictions and the discrepancies found in the evidence, our attention was drawn by the learned amicus curiae to the evidence of PW-4, PW-5 and PW-8 by making necessary reference to the cross-examination of I.O./PW-9. The contradictions, according to appellant, were of such nature and extent, it would be very difficult to place any implicit reliance upon their testimony rendering prosecution story a doubtful episode.
The contradictions, discrepancies and inconsistencies are there in the evidence.
According to appellant, such discrepancies in the evidence are of such nature and extent, it would develop a strong suspicion in the prosecution story and accordingly, relying upon which, the accused appellant ought not to have been held guilty.
The version of State/respondent is that the contradictions are not vital, material in nature, and it would not go to the very sub-stratum of prosecution case.
Upon close scrutiny of the evidence adduced by the witnesses, we are of the considered opinion that discrepancies or inconsistencies or discrepancies sought to be capitalised, would not matter much as the same would not up set the very core of the prosecution case.
Though, there were some inconsistency in the testimony of PW-4 and PW- 8, including their statement under Section 164 Cr. P.C. mostly relied upon by the Trial Court, but both the witnesses testified candidly in their respective evidence as to how they were left with circumstances providing them opportunity to notice the accused appellant fleeing away from the scene of crime. Such part of their testimony, however, remained undemolished in cross-examination. For the discussion made above, the allegation of having made extra- judicial confession to PW-4 and PW-8 by accused/appellant deserve no acceptance.
Learned amicus curiae strongly contended that for the previous animosity of such witnesses with the accused appellant on the issue of their respective club, their testimony would not inspire any confidence. Enmity between the parties, as claimed by the learned amicus curiae, is a double edged weapon. It may offer ground for false implication, at the same time, it may lead to crop up criminality on a particular person. What is more required in such context of the case, is to subject the evidence of such witnesses to a careful scrutiny and consider the same with much care and caution. Upon applying such principle, what is accepted in the field of administration of criminal justice, we are of the view that mere presence of enmity alone of the witnesses against the appellant, in the absence of any convincing materials, would not ipso facto render their testimony to be untrustworthy.
Parents of the victim girl (PW-1 and PW-3) gathered their respective knowledge of their victim daughter being sexually violated after victim returned home on the relevant date. Witnesses like PW-2, PW-4, PW-6 and PW-7 are the post occurrence witnesses, and their testimony are within the meaning of hearsay evidence, having no strong contribution to the determination of the offence. The contention raised in the version of the parents of the victim girl received ratification from the testimony of their victim daughter (PW-5).
Upon close scrutiny of the evidence of PW-1, PW-3, PW-5 and PW-8, it appears that their testimony are intrinsically reliable being inherently probable.
The order of conviction after holding the accused/appellant to be guilty, in our view, should not be faulted or doubted anymore on the grounds, as focused by learned amicus curiae for the appellant.
The judgment and order of conviction would thus go unaltered. The sentence awarded in this case by the Trial Court being in commensurate with the principle of awarding punishment, would also remain uninterfered with.
The order of conviction and sentence is thus upheld.
The appeal fails being without any merits.
Before parting with the records, we must record our deep sense of acknowledgement for the valuable assistance rendered by the learned amicus curiae, Mr. Partha Sarathi Bhattacharya, who came forward to render assistance to the court, when service of administrative notice upon accused/appellant proved to be a futile exercise.
The appeal thus stands disposed of.
Department is directed to send a copy of this judgment along with L.C.R. (Lower Court Record) to the learned court below, through the concerned learned District Judge forthwith.
Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.
I agree.
(Sahidullah Munshi, J.) (Subhasis Dasgupta, J.)