Naresh Chandra Halder vs The State Of West Bengal
2023 Latest Caselaw 1363 Cal

                     IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION
                             APPELLATE SIDE

Before: Hon'ble Justice Sugato Majumdar



                               CRA 687 of 2015
                          Naresh Chandra Halder
                                     Vs.
                          The State of West Bengal


For the Appellant          :     Mr. Sandipan Ganguly (Sr. Advocate),
                                 Mr. Karan Dudhwewala.


For the State              :     Mr. Tanmay Kr. Ghosh (Ld. SGA),
                                 Mr. Arindam Sen


Hearing concluded on       :     16/02/2023

Judgment on                :     23/02/2023


Sugato Majumdar, J.:-


      The instant appeal is preferred against the judgment dated 19/09/2015 and

order of sentence dated 22/09/2015 passed by the Additional Sessions Judge, 3rd

Fast Track Court, Berhampore, Murshidabad in Sessions Trial No. 4(1) of 2009

under Section 376 of the Indian Penal Code.


      The prosecution case owes its origin to the written complaint lodged by

the de-facto complainant being the mother of the victim. It is stated in the

written complaint that the victim was missing from the evening of 11/10/2008. In

spite of thorough search she could not be traced out. She returned home next
                                                                           Page |2



morning in a disoriented condition. On query she disclosed that the Appellant

induced the victim on 11/10/2008, in the evening, to accompany him to a hotel at

Murshidabad. The Appellant took the victim in a room located in the second

floor and committed rape upon her. In spite of resistance made by the victim the

Appellant represented her that he would marry.         On the next morning, he

allowed her to go on understanding that she would tell her parents that they are

married. When the entire incident was intimated by the victim to the de-facto

complainant, her mother, she stated the same to her husband as well as to the

local people. Initially the father of the Appellant stated that the matter would be

settled in local salishi with intervention of local people, but the salishi fared no

fruitful result.   Thereafter, the de-facto complainant lodged the written

complaint in Beherampur Police Station, Murshidabad.


       The written complaint was received on 18/10/2008 at 11:15 hours and was

registered as P.S. Case No. 05/08/2008 dated 18/10/2008 under Section 376 of the

Indian Penal Code. Formal F.I.R was drawn up and an Investigating Officer was

entrusted with investigating into the case. The victim's statement under Section

164 of the Code of Criminal Procedure was recorded; she was medically

examined; her wearing apparels were seized on preparing seizure list. Apart from

this, hotel register was seized from the concerned hotel, namely, Hansraj Hotel.

Ossification test of the victim was also conducted to ascertain her age. After

completion of investigation, charge sheet was filed. Since the case is exclusively

triable by the Court of Sessions it was committed to the Court of Sessions by the
                                                                         Page |3



Chief Judicial Magistrate, Murshidabad wherefrom it was transferred to the Trial

Court on taking cognizance of the offence.


       Charge was framed under Section 376 of the Indian Penal Code which was

read over and explained to the Appellant to which she pleaded not guilty and

claimed to be tried. Thereafter, the trial began.


       In course of trial the prosecution produced sixteen witnesses. Various

documents produced and admitted as evidence were marked as Ext. 1 to 7.

Wearing apparels of the victim were adduced in evidence and marked

collectively as Mat. Ext. 1.


       No evidence was adduced on behalf of the Appellant.


       Defence of the Appellant, as appears from the trend of cross-examination

as well as from the answers given in course of examination by the Court under

Section 313 of the Code of Criminal Procedure, is false implication.


       The Trial Court found the Appellant guilty of charge leveled under Section

376 of the Indian Penal Code and convicted him according. The Trial Court

sentenced him with rigorous imprisonment for seven years as well as fine of Rs.

5,000/- in default of which additional rigorous imprisonment for a term of one

year and six months.


       On being aggrieved and dissatisfied the incident is preferred.


       Mr. Ganguly, the learned Senior Counsel appearing for the Appellant

submitted that:
                                                                       Page |4



Firstly, there is a delay of eight days in lodging the FIR. It is in the

evidence that the de-facto complainant waited for settlement

through salishi. Salishi took place on 14/10/2008 but the written

complaint was lodged on 18/10/2008. There is delay of four days

which is unexplained importing chances of concoction, coloration

and deliberation in lodging the written complaint. In nutshell,

unexplained delay in FIR cannot be relied upon and casts serious

doubt in the prosecution case.


Secondly, there is no evidence of salishi by any witnesses,

whatsoever there is no evidence that salishi took place after the

alleged incident.


Thirdly, Mr. Ganguly argued that the victim stated in her evidence

that she narrated the incident to police authorities who reduced

the statement into writing and got her signature but that

statement is neither treated as First Information Report nor

adduced in evidence rather the statement of the mother of the

victim scribed by someone else was accepted, relied and acted

upon to draw the formal F.I.R.            This casts doubt on the

prosecution case accommodating doubt and suspicion.


Fourthly, PW 7 or 8 who was staff of Hansraj Hotel where the

alleged incident of rape took place did not identify the Appellant

in Test Identification Parade rather they identified the accused
                                                                         Page |5



      Appellant for the first time in the Court. Such identification

      cannot be relied upon.


      Fifthly, it is argued that ossification test report does not support

      the prosecution case that the victim was minor, that the medical

      document does not corroborate the version of the victim. Since

      material evidence are at variance with victim version or statement

      and since there is no other evidence indicating or establishing the

      alleged offence circumstantially or directly, prosecution cannot

      be said to establish the alleged charge against the Appellant.


      Sixthly, it is argued that the Investigating Officer was not

      examined by the prosecution. No explanation is given why

      Investigating Officer was not examined.         According to Mr.

      Ganguly non-examination of Investigating Officer seriously

      hamper of the case of the prosecution as there is no link to

      establish the chain of events.


      In nutshell, Mr. Ganguly argued that the Trial Court without appreciating

the evidence properly and without proper application of law erroneously

convicted and sentenced the Appellant which should be set aside.


      The learned Public Prosecutor, on the contrary, strenuously argued that

the prosecution case is well-established by cogent evidence. It is argued that

victim's statements, recorded under Section 164 of the Code of Criminal

Procedure as well as victim's deposition, are not at variance. They are rather
                                                                           Page |6



corroborative. Minor discrepancies may likely to result after lapse of time but

such discrepancies do not vitally affect the prosecution case or render it

unreliable. It is settled law, according to the Learned Public Prosecutor, that

conviction may be based on victim's consistent and reliable evidence in rape

cases if supported by medical evidence.        According to the learned Public

Prosecutor the Trial Judge well-appreciated the evidence applied the correct

principle of law. The Trial Judge considered the principle of law laid down in

statement of The State of Punjab and Gurmit Singh and Ors. reported in AIR

(1999 SC 1393) along with other decisions that there is no error either in

appreciating evidence or in passing the judgment of conviction and order of

sentence, according to the Learned Public Prosecutor.           Relying upon the

principles laid down in Vishnu @ Undrya vs State of Maharastra [(2006) 1

SCC 283] he submitted that medical evidence has no precedence over ocular

evidence. The opinion of the medical officer is to assist the Court, but he is not a

witness of fact. Referring to the decision of the Supreme Court of India in the

State of U.P. Vs Chhoteylal [(2011) 2 SCC 550] it is submitted that there is no

rule that two years are to be added to medical estimation of age. It is further

submitted that the evidence of the victim of rape cannot be taken with doubts

and suspicions. Reference was also made to Badal Toppo vs. State of Bihar

[2004 AIR Jhar R 248]


       I have heard rival submissions.


       Genesis of the prosecution case is the written complaint, as stated earlier

which was lodged on 18/10/2008 by the mother of the victim. According to the
                                                                           Page |7



written complaint, the incident took place on 11/10/2008. It is explained in the

written complaint since the victim and her family waited for an outcome and

solution in village salishi, there was delay in lodging the written complaint. The

victim stated in her cross examination that ten or twelve days after the incident

she along with her parents went to police station to meet with the police persons.

Her statements were written down and she signed on it. P.W.2 the de-facto

complainant and mother of the victim stated that she went to Berhampore police

station where the scribe drafted the complaint. P.W.3, the father of the victim

stated in course of cross-examination that one day after salishi he along with

others went to Berhampore Police Station and narrated the incident to police but

police did not write anything on the incident. Statements of the three witnesses

do not corroborate each other. Rather, there are different versions regarding first

information to police. The de-facto complainant, during her evidence stated

nothing about giving statement to the police by the victim and reducing the

same into writing by them. There remains ambiguity as to what is the first

information to the police authority. Evidence of the Investigating Officer could

have cleared such doubts.


       Mr. Ganguly strenuously argued that delay in lodging the F.I.R is fatal to

the case. The mother of the victim (PW 1) stated that since they were waiting for

the outcome in the salishi there, occurred delay in submitting the written

complaint. PW 3, the father of the victim stated in evidence that on the day

after salishi he went to the police station to report the incident. This apart delay

is of seven days. Therefore, this Court is of opinion that in the conspectus of the
                                                                          Page |8



present facts and circumstances delay, by itself, is not fatal for the prosecution

case.


        The case set out in the written complaint (Ext.4) is that the victim was

missing from the evening of 11/08/2008. She could not be traced out in spite of

thorough search. On the next morning the victim returned home in with

disoriented appearance. From the victim the de-facto complainant, being the

mother came to know that the Appellant allured the victim with food in the

evening of 11/10/2008 and took her to the hotel. It is also set out that the

appellant offered the victim to the second floor room and committed rape upon

her in spite of her protests and further that the Appellant assured the victim to

marry. The victim's version is that she went to ration shop which was closed. So

she was waiting for bus. At that time the Appellant came on motor-cycle and

took her to the hotel. It was 8-8.30 a.m. Inside the hotel, she was taken in a room

in second floor where rape was committed on her. She was raped again in night.

It appears from the version of the victim that she was raped in daytime as well as

in night. If we go with the version of the written complaint then she was taken

away by the Appellant in night and was raped in night. Possibility of rape in day

time is wiped out. Statements of the written complaint are at variance with the

statement of the victim. Of course, the written complaint contains statement of

the mother of the victim who derived her knowledge from the victim herself.

The statement of the mother is the first in point of time. The victim's statement

was reduced into writing and got signed by her. That statement is not produced
                                                                          Page |9



and is not known whether first in point of time, as discussed above. But the

statements of the victim are at variance with the written complaint.


       It is stated in the written complaint that the victim was minor and aged

about sixteen years. Ossification test report (Ext.7), which was conducted on

05/11/2008

, shows that the age of the victim is between 17 to 19 years.

Prosecution did not adduce any document to prove the age of the victim. Except

statement of the mother in the written complaint, nothing is there to show that

the victim was of sixteen years of age or below that, so that her consent would

not be material. In absence of anything else it cannot be decisively stated that

the victim was minor at the material point of time.

The statements of the victim may be looked into. In course of evidence

she stated that she was taken into the hotel and then in a room situated in the

second floor. Thereafter, the Appellant came down to ground floor and again

went to the second floor room where food was given to them and they ate the

same. Thereafter door of the room was closed and the Appellant committed rape

upon her. It is not a case that the victim was wrongfully restrained because no

charge was framed in this regard. It is rather stated in the written complaint that

the Appellant offered her to go to the second floor. In her statement recorded

under Section 164 of the Code of Criminal Procedure the victim stated that when

the Appellant took her to the hotel, he asked her to go upstairs. The victim's

reaction was she was not willing initially. The question remained open whether

he went upstairs in a room of a hotel with subsequent changed mind and

willingness? A shadow of doubt is created whether the victim had consent or P a g e | 10

willingness or not though subsequently she might have thought otherwise.

When the Appellant went downstairs, she had opportunity to go away. The

victim stated both in evidence as well as in the statement recorded under section

164 of the Code of Criminal Procedure (Ext.1) that on the next morning when the

Appellant went to bathroom, she escaped. The victim's evidence does not

describe particulars of the situation, the situation in which she spent in the hotel.

Minor omissions and contradictions do not undermine an otherwise reliable and

trustworthy testimony of the victim. But the evidence of the victim must not be

general or evasive. It must be of such which inspire confidence to rely upon and

must allow the Court to understand the situation where she was placed. That

clarity must be present, in order to rely upon the sole testimony of the victim. If a

situation is assumed that after eating food, the Appellant showed his fang to

ravish a helpless victim then also certain doubt remains. Whether after the first

commission of rape the victim attempted to run away or asked for some help;

whether the Appellant never went to bathroom throughout the day and night so

that the victim could get chance to escape; whether the Appellant never left the

room keeping the victim alone. All these questions create a doubt in the

prosecution case as to whether the victim had consent or not.

P.W.2, the de-facto complainant as well as the mother of the victim stated

in cross-examination that they took the course of law since the Appellant and his

father did not compensate the victim with money. Medical examination of the

victim was conducted on 21/10/2008, ten days after the incident. No injury,

either external or in her private part was noted. Medical examination of the P a g e | 11

victim was conducted ten days after the incident. Since the Investigating Officer

was not examined, it could not be known why there occurred such delay in

examination of the victim girl. The medical examination report (Ext.5) does not

corroborate the allegation of rape.

Prosecution adduced evidence of witnesses being staff from the hotel

(P.W.7, P.W.8, and P.W.9) but their evidence indicates presence of the Appellant

on 18/10/2008 without establishing the presence of the victim accompanying the

accused. Therefore, depositions of these witnesses do not support the

prosecution case.

In trial of rape cases conviction can be based on sole testimony of the

victim if such evidence is cogent, reliable and consistent. Medical examination

report may corroborate such evidence. It is trite law that in a case of rape it is

not essential that courts should look for corroboration of medical evidence. But

evidence available must be cogent, reliable and inspire confidence to rely upon.

Even sole testimony of the victim can be relied upon. In this case medical

examination report does not indicate any rape. Evidence of P.W.7, P.W.8 and

P.W.9 do not support the prosecution case, as aforesaid. Only evidence is that of

the victim girl, which is different from the written complaint, as stated above.

Considering the statement of the victim girl recorded under Section 164 of the

Cr.P.C. (Ext.1) together with her oral testimony and even assuming that there was

physical relationship between the victim girl and the Appellant, some doubts still

remains whether she had consent or not. General statements, as made in this

case, without some particularities or specific circumstances do not repel the P a g e | 12

clouds of doubts. Such evidence does not inspire confidence to rely upon. The

Investigating Officer was not examined leaving no scope to explain certain

situations and stirring clear some doubts. The mother of the victim stated in

course of cross-examination that since the Appellant did not pay them

compensation they have initiated the prosecution. This motive may not

demonstrate or indicate lodging of false case but leaves possibility of creating an

embellished version or hyperbolic story. This is assumes more significance in

view of different versions contained in the written complaint as well as in the

statements of the victim.

The Learned Trial Judge failed to appreciate evidence in proper

perspective. When the offence is grave like rape, stricter proof is necessary. Sole

testimony of the victim girl, in the factual array of the case, which contains gaps

and doubts, it is not safe convict the Appellant on the basis of such evidence.

The entire prosecution case presented is not very cogent and reliable.

Although it is consistently stated by the victim that on 11.10.2008 she and the

Appellant was in the concerned hotel which could not be shaken in cross-

examination, there remains some doubts in the case of the prosecution. In case

of doubts, benefit must go to the Appellant and he should be acquitted.

In nutshell, the instant appeal is allowed. The Appellant is acquitted of

the charge leveled against him. He is set at liberty and released from the bail

bonds.

P a g e | 13

The instant appeal is disposed of accordingly. Lower court record be

returned with a copy of this judgment.

(Sugato Majumdar, J.)