The Accused Would Be Benefitted Where The Case Of Prosecution Suffers From Material Contradictions And Medical Examination Was Denied: Subrata Pradhan Vs State of West Bengal & Anr

Date of Judgement:
10th March 2022

Coram/judge:
Hon'ble Justice Bibek Chaudhuri

Parties to the Case:
Appellant - Subrata Pradhan
Respondents- State of West Bengal & Anr.

Legal Provisions

• Section 363 of the Indian Penal Code, 1860- Lays down the punishment for kidnapping.
• Section 366 of the Indian Penal Code, 1860 – Lays down punishment for Kidnapping, abducting, or inducing a woman to compel her mar­riage, etc.
• Section 376 of IPC, 1860 – Lays down the punishment for rape.
• Section 120B of IPC, 1860- Deals with punishment for criminal conspiracy.
• Section 4 of the POCSO Act- Deals with punishment for penetrative sexual assault.

Overview

• It was alleged that a school-going girl was kidnapped by the appellant on her way to school at about 9 A.M. She was taken to some unknown place by a car. It was contended that the appellant used to tease the girl and give her a bad proposal whenever he found her on the road. He also proposed to marry her. The complainant (uncle of the victim girl) used to drop her up to the bus stand of their village. On the date of occurrence, he couldn’t accompany the girl and she was forcibly kidnapped from the bus stand.
• The complaint was made regarding the same under relevant sections of IPC and the case was transferred to the Court of the learned Special Judge.
• The Learned Judge had sentenced the accused with imprisonment for three years along with a fine for the offence under Section 366 & 120B of IPC and imprisonment for seven years for the offence committed under Section 376 of IPC. Further, under Section 4 of the POCSO Act, he was sentenced to suffer rigorous imprisonment for seven years along with a fine.
• The victim went missing on14th December, 2017, and the next day she was allegedly brought to the local police station by the accused. The I.O. contradicted and said that the accused was arrested by him from Benuban which falls within the jurisdiction of the local Police Station and recused the victim.
• The victim had submitted that when she was waiting at Bus Stand, the accused persons came by car and proposed to give a lift to her school. On refusal, they forcibly picked her up in the car and the accused pressed her mouth and threatened her. Further, she was confined in a room and the accused had made her wear a sari and had put vermilion on her forehead. It was alleged that the accused had subjected the victim to penetrative sexual assault.

Arguments Advanced by The Appellant

• The Learned Counsel pointed out a series of contradictions in the evidence of the witnesses produced by the Prosecution and contended that the statement of witnesses against the accused was hearsay in nature.
• It was submitted that in the F.I.R. as well as the testimony of the victim girl, it was stated that the victim was allegedly kidnapped at about 9 A.M. on her way to school. However, while examination, the complainant stated that the accused kidnapped her when she was returning from school. The evidence of Witness 1 and Witness 2 as well as the statement made in the FIR was contradictory. Such contradiction was material to the outcome of the case.
• It was submitted that in order to prove penetrative sexual assault, a medical examination was absolutely necessary. The prosecution had failed to produce any evidence which proved the said act had been committed by the accused.
• The victim girl had stated that she declined to undergo a medical examination as there was no female doctor in the hospital. However, the Court had not found the said explanation in the injury report and thus the same could not be believed.
• The victim was suffering from some medical condition. The accused used to work as a compounder under a doctor. He extended help for medical treatment of the victim but the father of the victim refused to pay money for medical treatment of the victim. When the accused demanded the said money, the uncle of the victim filed a false case. Medical documents of the victim, which were in the custody of the accused, were produced to support the contention. The Trial Court had refused to mark the said documents as exhibits.
• The victim affirmed on oath that on the date of commitment of the alleged offence, she was aged about 13 years. However, the investigating officer did not seize any birth certificate or documentation to support the same. In the absence of any such documents regarding proof of age of the victim, her oral testimony could not be taken into consideration.

Arguments Advanced by the respondents

• The Learned Public Prosecutor submitted on the issue of age that the victim was not cross-examined by the defence on the question of her age or date of birth. The only suggestion was put forth to the victim was that she was more than 13 years of age and the same was victim denied.

Issue

• Whether the order and judgment by the Learned Special Judge could be upheld in light of various material contradictions in the statement of witnesses and absence of any firm evidence to establish the alleged crime?

Judgment Analysis

• The Honourable High Court observed that the F.I.R. itself was hearsay in nature. In the F.I.R., it is alleged by the complainant that the victim girl was kidnapped on her way to school. However, he stated on oath that the accused picked her up when she was returning home from school and took her by vehicle. In view of such contradiction, a reasonable question would arise as to whether the prosecution tried to rope in the appellants merely based on assumptions.
• The victim seemingly tried to cover up the loopholes in the prosecution case and went on improving the case of the prosecution. The victim girl had denied the medical examination before the medical officer. She had clearly stated that she was not willing to get herself medically examined. But in her cross-examination, she stated on oath that she declined to get herself medically examined as there was no female doctor available. This being an instant improvement, amounted to a material contradiction in the case.
• The Supreme Court in State of Madhya Pradesh V. Shriram & Anr., had held that where a case of the prosecution suffered from material contradiction, the accused was entitled to get the benefit of doubt.
• The victim girl, further, stated in her evidence that the accused had brought her to the local police station. On the other hand, the investigating officer stated that he had arrested the accused from a particular place. The contradiction was to be held vital.
• In the present case, except the girl, all the witnesses had stated the incident on the basis of what they had learned or heard from the victim girl. Such hearsay evidence would not be admissible in court.
• The prosecution did not try to collect the birth certificate of the victim girl or any other documents to prove her age. She also did not appear before the medical board for ascertaining her age. In the absence of such evidence, she could not be held to be a minor and the charge against the accused under Section 4 of the POCSO Act would not stand.
• The Learned Judge, while citing the observations made by the Apex, had formed an opinion that the victim in the case of sexual violence would be the best evidence and conviction could be based on the sole testimony of the victim girl. For such cases, the evidence of the victim was required to be trustworthy, believable, and unblemished.
• On assessing the evidence, it would be found that the victim by her own conduct during the investigation of the case falsify the case of the prosecution with regard to charge under Section 376 of the I.P.C. and Section 4 of the POCSO Act.
• If the alleged offences were committed against a girl aged 13, there would be marks of violence and injury on her private part which would be brought forward in the medical examination of the victim. However, the victim did not go through a medical examination. Thus, the absence of such a report would go in favour of the accused who was entitled to get the benefit of doubt.
• To prove offence under Section 366 of IPC, the investigating officer did not seize the saree which the victim was forced to wear. Considering the aspect that the evidences suffered from various weaknesses, the Court observed that the learned Trial Judge committed an error in convicting the appellants under Section 366 of I.P.C.
• The fact that the accused had kidnapped the victim girl on 14th December, 2017 was not disputed. The victim girl was under his custody till the accused brought the victim to the police station or he was arrested by the investigating officer.
• The Court held that the evidence on record was sufficient to prove a charge under Section 363 of I.P.C. against the accused. The accused were acquitted from charges levied under Section 366, Section 376 of IPC, and Section 4 of the POCSO Act. The judgment and order of conviction and sentence were liable to be set aside.

Conclusion

The Honourable High Court reassessed the evidences produced by the prosecution and found that they suffered from material contradictions and no medical examination of the victim was done. In the light of these, the serious offences alleged to be committed by the accused could not be convincingly proved. The witnesses were observed to have contradicted their own testimony during cross-examination. The Learned Judge took cognizance of these irregularities and the accused was convicted for kidnapping whereas other convictions were set aside.

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