Ganesh Mahata vs State of West Bengal

The appellant challenges the legality and the validity of the judgment passed by the learned trial court in connection with Sessions Case no. 5(1)/2015.

The factual scenario of this case as it is understood from the FIR and the evidence of the prosecution witnesses is such that on 20.01.2015 at about 6.00 p.m. the appellant had taken the victim girl and committed rape upon her. After registration of FIR, the investigating agency came into operation. The I.O. concerned has recorded the statement of the available witnesses under Section 161 of the Code of Criminal Procedure, sent the victim girl and the companion of the victim to the learned Judicial Magistrate, Krishnagore, Nadia for recording the statement under Section 164 of the Code of Criminal Procedure.

The I.O. had taken steps for medical examination for the victim as well as the accused appellant and on completion of investigation has submitted charge-sheet under Section 4 of the Protection of Children From Sexual Offence Act, 2012 read with Section 376(2)(i) of the Indian Penal Code.

On perusal of the lower court records, I find that the learned trial court has recorded the evidence of the prosecution witnesses and considered the documents which are marked as exhibits and, thereafter, has punished the appellant under Section 8 of the Protection of Children from Sexual Offence Act, 2012. In such circumstances, the scrutiny of the evidence is required.

PW 1, the victim herself has narrated something which is the aggravated version. In the FIR, it has been specifically stated that she was raped against her will. In course of the crossexamination, she stated that she suffered serious injuries in her private parts and that she had shown her torn private parts to the doctors within six hours of the incident. She was examined by a lady doctor, who after examining her, had given a report that there was no injury, even there was no teeth mark or nail scratch mark in her body.

The statement of PW 1 is such that she suffered severe injuries including rapture of hymen but that has been absent from the evidence of the doctor concerned. The doctor had no axe to grind against the victim.

PW 1 in her evidence never stated that one Nirupama was with her but in course of recording statement under Section 164 of the Code of Criminal Procedure she specifically stated that Nirupama was also with her when the accused allegedly taken her to a char(Ganga). That Nirupama has been cited as a witness and deposed as PW 5. She did not say anything that she was also standing there with the victim and that the accused had called the victim to accompany him. Therefore, the evidence of Nirupama does not lend support to the prosecution case. All other witnesses are hearsay evidence in this case. They neither have any direct knowledge nor even any indirect knowledge regarding the incident as they came to the spot just after hearing of the incident.

Since doctor''s evidence is completely different from the statement of victim, so it is very difficult to believe the version of the victim.

It is true that the learned trial court had convicted the accused under Section 8 of the Protection of Children from Sexual Offence Act, 2012 instead of Section 4 of the said Act. There must be some sort of reliability and genuinity of the statement made by the victim girl.

It is true that there is scope for presumption but before coming to that presumption, some sort of clinching evidence must be there.

On perusal of the materials of record and after hearing the learned advocates for the parties, I have no option except to hold that the judgment and order of conviction recorded by the learned trial court is not sustainable in the eye of law.

Accordingly, the instant criminal appeal is allowed.

The judgment and order of conviction passed by the learned trial court is hereby set aside. The appellant be set at liberty at once.

Let a copy of this judgment be forwarded to the learned trial court for early release of the appellant from Jail custody.

The entire lower court record be sent down to the learned trial court accordingly.

Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.