- The Honourable High Court of Calcutta in the case of Subrata Pradhan V. State of West Bengal & Anr. [Criminal Appeal 269 of 2019] has held that when the testimony of witnesses contradicts each other, it falsifies the case of the prosecution with regard to charges levied on the accused and scope of conviction becomes bleak. Further unavailability of medical reports, to prove charges under POCSO act, leans the case in favour of the Accused.
- The present appeal was against the judgment and order of conviction and sentence passed by the learned Judge of the Special Court under the POCSO Act and various sections of IPC.
- The Victim had submitted that when she was waiting at Bus Stand, the accused persons came by a car and offered to give her a lift to her school. On refusal, they forcibly picked her up in the car. Accused pressed her mouth and threatened her. Then she was confined in a room. Accused made her wear a sari and put vermilion on her forehead. It was alleged that he also committed sexual intercourse with her.
- The victim had gone missing on 14th December, 2017 and next day, according to the victim, she was 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 P.S. and recused the victim girl. The victim girl was deprived from the lawful custody of her guardian for a day.
- The Learned Counsel for the appellant pointed out a series of contradictions in the evidence of the witnesses of prosecution and contended that the statement of witnesses of the accused was hearsay in nature.
- It was submitted in the F.I.R. as well as testimony of the victim girl that the victim was allegedly kidnapped at about 9 A.M. on her way to school. However, during examination, the complainant stated that the accused kidnapped her when she was returning from school.
- The victim girl had stated that she declined to undergo a medical examination as there was no female doctor in the hospital. The Court would not find such an explanation as stated by her in her testimony. This was an improvement or development of the prosecution’s story and cannot be believed.
- The victim stated on oath that on the date of occurence she was aged about 13 years. The investigating officer in this case did not seize any birth certificate or any other documents to show that the victim girl was aged about 13 years at the relevant time of commission of offence. In the absence of any documents regarding proof of age of the victim, her oral testimony cannot be taken into consideration.
- Learned Public Prosecutor in-charge 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. Only a suggestion was put to the victim that she was more than 13 years of age, which the victim denied.
- The Honourable High Court Observed that in view of such contradiction a reasonable question would arise as to whether the prosecution tried to rope in the appellants merely on assumptions.
- The victim seemingly tried to cover up loopholes in the prosecution. In the medical examination report she clearly stated that she was not willing to get herself medically examined. While during cross-examination, she stated on oath that there was no female doctor available. This being an instant improvement, amounts to material contradiction in the case.
- The Supreme Court in State of Madhya Pradesh V. Shriram & anr., had held that due to material contradiction of prosecution’s evidence, the accused was entitled to get benefit of doubt.
- The victim girl further stated in her evidence that the accused brought her to the local police station. On the other hand, the investigating officer stated that he arrested the accused, from a particular place. The contradiction was to be held vital.
- The prosecution did not try to collect the birth certificate of the victim girl or any other documents. She also did not appear before the medical board for ascertaining her age. In the absence of such evidence, she cannot be held to be a minor and charge under Section 4 of POCSO Act cannot stand.
- On assessing the evidence in this case, it would be found that the victim by her own conduct during investigation of the case weakened the case of the prosecution with regard to charges under Section 376 of the I.P.C. and Section 4 of the POCSO Act.
- The Court held that the evidence on record sufficiently proved a charge under Section 363 (Kidnapping) of I.P.C. against the appellant. The accused were found not guilty in committing offence under Section 366, Section 376 of I.P.C. and Section 4 of POCSO Act and the judgement and order of conviction and sentence passed by the learned Trial Judge was liable to be set aside.
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