REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  800 OF 2007

Utpal Das & Anr.  …APPELLANTS

Versus

State of West Bengal …RESPONDENT

JUDGMENT

  B. Sudershan Reddy, J :

1. This appeal by special leave is directed against the  

judgment  of  the  Calcutta  High  Court  setting  aside  the  

acquittal  of the appellants herein  under Section  376 IPC  

and   sentencing them  to suffer  rigorous imprisonment  

for five years and to pay a fine of Rs. 2,000/-, in default  

of payment of fine to further undergo two  months  rigorous  

imprisonment.    

2. The  prosecution  story,  briefly  stated,  is  that  on  

28.4.1984  at about 8.00 p.m. one Sitarani Jha (PW-14) got  

down from a train  at Burdwan Railway Station  alone and  

hired a rickshaw   to go  to the Badamtola bus stand  as  

she  had  to  take  a  bus  for  Satgachia.  On  reaching  at  

Badamtola  bus  stand  she  learnt  that  the  last  bus  for

Satgachia  had  already  left.  She  then  told  the  rickshaw  

puller, Bipul Samaddar (PW-6) to take her to a girl of her  

village  who  lived   at  nearby  place,  Kalna  Gate.  It  is  

alleged that when the victim was about to leave Badamtala  

bus stand she was intercepted by four or five persons who  

forcibly  took  her  to  a  house  under  construction  and  

thereafter two of them forcibly committed rape on her one  

after another against her will.  One of them had a knife in  

his hands. The victim further alleged that after commission  

of rape she was taken to a nearby tea stall and locked  

there in a small room by the appellants. After sometime one  

Parimal Babu (PW-2), Probal Babu (PW-1) and Bipul Samaddar  

(PW-6) and some other people rescued her from that shop, to  

whom she narrated the whole incident. Thereafter the victim  

took shelter for night in the house of one Joydeb Prajapati  

(PW-4)  a distant relative of her. It is further alleged  

that on the following morning i.e. 29.4.1984 local people  

brought  Utpal  Das  (appellant  no.  1  herein),  Haradhan  @  

Bhalta Sutradar (appellant no.2 herein) and one Banshidhar  

Dawn   before  the  victim  and  she  identified  Utpal  and  

Haradhan @ Bhalta Sutradhar as the persons who committed  

rape on her and at that time Haradhan @ Bhalta managed to  

flee away. This, in fact, is the story given out by the  

prosecutrix – Sitarani Jha while she lodged the FIR (Ex. 9)  

with  Burdwan  (Sadar)  Police  Station  at  10.45  a.m.  on  

29.4.1984.

3.   Based  on  the  report  (Ex.9)  the  Police  Station  

Burdwan registered a case under Sections 366, 368 and 376  

read with Section 34 of the IPC against the appellants.  

4. During  the  course  of  investigation,  site  was  

inspected, the seizure list was prepared, the prosecutrix  

and  the  appellants  were  got  medically  examined  and  the  

medical examination reports of the prosecutrix (Ex.P-2) as  

well as Ex. P-3 and Ex. P-4 of the appellant nos. 1 and 2  

respectively were obtained.   

5. After  completion  of  the  investigation,  the  police  

filed charge sheet against the appellants under Sections  

366, 368 and 376 read with Section 34 of the IPC.  The  

prosecution altogether examined 17 witnesses (PW-1 to PW-

17) and 09 documents were got marked (Ex. P-1 to P-09).  

The statements under Section 313 Cr.P.C. of the appellants  

were  recorded  in  which  they  pleaded  their  false  

implication.  

6. The  learned  Additional  Sessions  Judge   upon  

consideration  of  the  evidence  and  material  available  on  

record held that  prosecution has failed to prove its case  

beyond  reasonable doubt and accordingly acquitted all the  

accused of the charges framed against them.  

7. Aggrieved by the order of acquittal, the State of West  

Bengal preferred an appeal before the High Court. The High  

Court   upon  reappreciation  of   the  evidence  and  the

totality  of  circumstances  held  that  the  trial  court  has  

extended  benefit  of  doubt  to  the  appellants   under  

misconception of facts and wrong appreciation of evidence  

and  accordingly came to the conclusion that the appellants  

are guilty of the offence punishable under Section 376/34  

of  the  IPC.   However,  the  High  Court  confirmed  the  

acquittal of the other accused. The order of acquittal of  

those accused has attained its finality since there is no  

appeal preferred by the State. Hence, the appellants are  

before us in this appeal challenging their conviction and  

award of sentence by the High Court under Section 376/34  

of the IPC.  

8. We have heard the learned counsel appearing for the  

appellants  as  well  as  for  the  State  and  perused  the  

material available on record.  

9. Shri Chanchal Kumar Ganguli, learned counsel appearing  

on behalf of the appellants submitted that the High Court  

failed to appreciate that there was no acceptable evidence  

of  the  appellants  committing  any  rape  as  the  Medical  

Officer who examined the victim did not find any injuries  

on  her  person  as  are  likely  to  be  found  had  she  been  

subjected  to  forced  sexual  intercourse.  The  medical  

evidence and the reports of the chemical examination may  

at the most suggest that the victim was a party to a sexual  

intercourse in recent time.  But there is no evidence to  

suggest  that  the  intercourse  was  without  her  consent  or  

against her will or that she had been forcibly violated by

any  person.  The  counsel  thus  submitted  that  essential  

ingredients of the offence of rape under Section 376 IPC  

are not present in the case.  It was also submitted that  

the  evidence  of  prosecutrix  suffers  from  material  

contradictions.  Her version was not supported by any of  

the prosecution witnesses. She is not a truthful witness  

and it may be unsafe to rely upon her evidence and convict  

the appellants for the offence punishable under Section 376  

IPC. An attempt was also made by the learned counsel for  

the appellants to read the statement of the victim recorded  

under Section 164 Cr.P.C and to compare the same with her  

evidence.  It was also submitted that PW-2, PW-3, PW-4 and  

PW-5,  were  declared  hostile  by  the  prosecution  and  the  

prosecution  is  left  with  no  evidence  other  than  the  

statements  of  Rikshaw  Puller  (PW-6)  and  the  victim  who  

contradict each other.  

10. Learned counsel for the State submitted that evidence  

of the victim (PW-14) itself is sufficient to convict the  

appellants  and  at  any  rate,  her  version  is  completely  

supported by the evidence of PW-6, whose evidence cannot be  

rejected for whatsoever reasons.  It was further submitted  

that  there  is  nothing  in  the  medical  evidence  which  

supports the case of the appellants as contended by the  

appellants.  

11. In  order  to  consider  as  to  whether  the  prosecution  

established  the  case  against  the  appellants  beyond

reasonable doubt, we are required to critically scrutinize  

the evidence of the prosecutrix  and Probal Babu (PW-1),  

Bipul  Samaddar  (PW-6)  and  also  the  evidence  of  Dr.  A.  

Chakravorty  (PW-8)  as  the  entire  case  turns  upon  their  

evidence.  

12. In  exhibit  P-9  (report)  the  prosecutrix  (PW-14)  

alleged that on 28.4.1984, at about 8.00 p.m when she  was  

going in a rickshaw  towards Kalna Gate  all of a sudden  

the appellants and other accused surrounded the rickshaw  

and told the rickshaw puller to divert the destination and  

they  forcibly  took  her   to  a  nearby  house  under  

construction and tried to rape her.  She made an attempt to  

save  herself  and  requested  them  to  free  her.   The  

appellants  did  not  heed  to  her  request  but  forcibly  

committed rape on her one after another. She was prevented  

from raising her voice as they threatened her to kill. One  

of them was holding a knife. Thereafter, the accused took  

her to a nearby tea stall and locked her inside it.  That  

after about 15/20 minutes one Asok Babu, Parimal  Babu (PW-

2) and Probal Babu (PW-1) and many others came there and  

rescued her from that shop after unlocking the door. She  

narrated the entire episode before them.  Thereafter all of  

them took her away to the house of Joydeb Projapati where  

she took shelter in the night. Next day morning PW-1, PW-2  

and  others  who  rescued  her  came  along  with  the  accused  

where  she  identified  the  appellants  as  the  one  who

committed rape on her. She also stated that she experienced  

pain in her private parts and all over her body.   

13. The Prosecutrix more or less reiterated the same facts  

in her evidence. In the cross examination she stated that  

one  of  the  miscreants  “jumped”  on  the  rickshaw  and  

threatened  her  at  the  point  of  knife  that  she  would  be  

killed  if  she  raises  any  hue  and  cry.   She  identified  

appellant No.2 in the court as the one who threatened her  

with the knife.  Relying on this part of the statement in  

the cross examination, learned counsel submitted that this  

part  of  the  story  of  appellant  no.2  ‘jumping  on  the  

rickshaw and threatening her at the point of knife etc. was  

not stated by her in the first information report given to  

the police.  This one circumstance according to the learned  

counsel  for  the  appellants  belies  the  evidence  of  the  

Prosecutrix as she went on making improvements. We find no  

merit in this submission for the simple reason that the  

contents of the first information report were never put to  

the victim.   It is needless to restate that the First  

Information  Report  does  not  constitute  substantive  

evidence.   It  can,  however,  only  be  used  as  a  previous  

statement  for  the  purposes  of  either  corroborating  its  

maker  or  for  contradicting  him  and  in  such  a  case  the  

previous statement cannot be used unless the attention of  

witness has first been drawn to those parts by which it is  

proposed  to  contradict  the  witness.   In  this  case  the  

attention  of  the  witness  (PW-14)  has  not  been  drawn  to

those parts of the FIR which according to appellants are  

not in conformity with her evidence. Likewise  statement  

recorded under Section 164 Cr.P.C. can never be used as  

substantive evidence of truth of the facts but may be used  

for contradictions and corroboration of a witness who made  

it.  The statement made under Section 164 Cr.P.C. can be  

used to cross examine the maker of it and the result may be  

to show that the evidence of the witness is false. It can  

be  used  to  impeach  the  credibility  of  the  prosecution  

witness.  In  the  present  case  it  was  for  the  defence  to  

invite the victim’s attention as to what she stated in the  

first information report and  statement made under Section  

164  Cr.P.C.  for  the  purposes  of  bringing  out  the  

contradictions, if any, in her evidence.  In the absence of  

the same the court cannot read 164 statement and compare  

the same with her evidence.  

14. We do not find any reason whatsoever to disbelieve the  

evidence  of  Prosecutrix  who  meticulously  narrated  the  

sequence of events as to what transpired on that fateful  

day from 8.00 p.m. onwards till about her lodging the first  

information report on the next day.  There is nothing on  

record  to  disbelieve  her  evidence.   The  only  suggestion  

made to her is that she was tutored by the police at the  

thana and she had set up a false story to implicate the  

appellants in the case. What are the reasons suggested for  

such false implication? None.

15. Probal Chakarborty (PW-1), in his evidence narrated as  

to  what  PW-6,  told  him  on  that  fateful  night  about  the  

incident. The rickshaw puller told him that he was carrying  

a woman passenger in his rickshaw to proceed towards Kalna  

Gate  and on the way 4-5 young men at the point of knife  

directed him to divert his rickshaw and that one of them  

sat by the side of the girl in the rickshaw.  Upon reaching  

near a house under construction he was asked by those men  

to leave the girl with them.  This incident PW-6, narrated  

to PW-1, within a short time after the incident. That all  

of them searched for the girl and ultimately found the girl  

in a nearby tea stall where she was locked inside.  There  

is nothing to disbelieve the version given by PW-1 which  

supports the prosecution’s case.  

16. Bipul Samaddar (PW-6)  is none other than the rickshaw  

puller  whose evidence is very crucial.  He in his evidence  

clearly stated that on the fateful day at about 8.00 p.m.  

one woman hired his rickshaw to  Badamtola bus stand.  He  

took his rickshaw to Badamtola bus stand but on finding  

that she missed her bus took her towards Kalna Gate on her  

instructions.  It is at that time 4-5 young men appeared  

there and “forcibly got her down from the rickshaw and took  

her away. Out of fear he rushed towards para” (Mohalla) and  

reported  the  matter  to  PW-1  and  others.   Thereafter  he  

along with PW-1 and others went on searching for the woman  

and ultimately found her in a tea stall of one Punjabee  

from where she was rescued. Thereafter he along with others

took her to one of her relative’s house.  It is also in his  

evidence that two of the miscreants (appellants) forcibly  

took that woman away on that night and he identified them  

in  the  court.  There  is  practically  nothing  suggested  to  

this witness in the cross examination.  We do not find any  

reason whatsoever to disbelieve the statement of PW-6 who  

is totally an uninterested witness.  

17. On consideration of the evidence of PW-14 and PW-6, we  

are  of  the  opinion  that  there  are  no  material  

contradictions in their evidence so as to disbelieve their  

evidence.  The version given by PW-14, (victim) receives  

complete corroboration from the evidence of PW-6. It is not  

even suggested to PW-6, that such an incident has not taken  

place on that fateful day. We see no reason whatsoever to  

disbelieve his evidence.  

18. One more aspect that requires our consideration is as  

to  whether  the  medical  evidence  does  not  support  the  

prosecution’s case? The High Court rightly expressed its  

indignation  as  to  the  manner  in  which  the  trial  court  

completely  misread  the  vital  medical  evidence.   Dr.  A.  

Chakroborty, (PW-8) examined the victim on 29.4.1984. On  

examination  he  opined  that  the  victim  is  habituated  to  

sexual intercourse and therefore could not express his firm  

opinion in his report about the commission of rape at the  

time  of  medical  examination.   But  in  the  evidence  he  

clearly  stated  after  considering  the  report  of  FSL  

regarding  stains  on  victim’s  clothing,  that  there  is

sufficient proof of recent sexual intercourse. The vaginal  

swab and smear were sent to Chemical Examiner. Based on the  

FSL report and the report of Serologist (Ex. 7) he found  

that  the  semen  was  present  in  the  vaginal  swab  of  the  

victim. We fail to appreciate as to how and in what manner  

the medical evidence supports the case of the defence.  

19. The  learned  counsel  for  the  appellants  however,  

submitted that the medical examination report of the victim  

shows that no injuries were found on her private parts or  

on any part of her body.  We are required to note that  

victim Sita Rani Jha is a married grown up lady and blessed  

with two children and in such circumstances the absence of  

injuries on her private parts is not of much significance.  

The mere fact that no injuries were found on private parts  

of her body cannot be the ground to hold that she was not  

subjected to any sexual assault.  The entire prosecution  

story  cannot  be  disbelieved  based  on  that  singular  

assertion of the learned counsel. In this regard another  

submission  was  made  by  the  learned  counsel  for  the  

appellants that the sexual intercourse, if any, was with  

the  consent  of  the  victim.   According  to  him  it  was  

consensual  sexual  intercourse.  This  proposition  canvassed  

for the first time across the bar is absolutely untenable  

and unsustainable.  There is not even a suggestion made to  

the victim that she has consented to sexual intercourse.  

The sequence of events clearly apparent from the evidence  

of  PW-1,  PW-6  and  PW-14,  leading  to  the  sexual  assault

completely rules out the possibility of consensual sex. We  

have no hesitation to reject the submission.  

20. The High Court rightly observed that the victim made  

no  mistake  in  identifying  the  two  appellants,  and  that,  

based on the evidence of PW-1, PW-6 and the victim (PW-14)  

herself,  it  is  satisfactorily  proved  that  the  two  

appellants were actually the persons who committed rape on  

the victim on that fateful day on 28.4.1984.  

21. For all the aforesaid reasons, we find no merit in  

this appeal and the same is accordingly dismissed.  

....................J. (B. SUDERSHAN REDDY)  

....................J.                  (AFTAB ALAM )

New Delhi,  May 7, 2010