The High Court held that the trial court had erred in acquitting the accused of the charge of rape under Section 376 of the IPC and in making observations against the witness (PW 3) in the judgment.

( 1 ) AN Order of acquittal recorded by the learned Assistant Sessions Judge, First Court, Hooghly in Sessions Trial No. 141 of 1997 thereby absolving the accused opposite party in CRR No. 1577 of 1999 has given rise to these two Revisional Applications. While the petitioner, in CRR No. 1577 of 1999, who was the victim girl, moved this Application being aggrieved with the Order of acquittal passed in favour of the accused opposite party. The petitioner in CRR No. 1651 of 1999 who was the scribe of the FIR, was examined as P. W. 3 during the trial for expunction of certain remarks made against him in the body of the judgment passed by the learned trial Judge.

( 2 ) SINCE both the matters were heard together, this common judgment will dispose of both the Revisional Applications.

( 3 ) SHRI De, learned Senior Advocate appearing for the petitioner in both the Revisional Applications has questioned the order of acquittal passed in favour of the accused opposite party on several grounds. He has firstly submitted that the learned trial Judge has failed to appreciate the evidence of PWs. 1, 4 and 5 in their proper perspective. The Order of acquittal, according to Shri De, was a result of total misconception of the evidence and legal position. He has submitted that the evidence was sufficient for the charge under section 376 of the Indian Penal Code. He also referred to the evidence of PWs. 1, 5 and 4 in great details and prayed for setting aside the order of acquittal as it has occasioned in a failure of justice. He further submitted that the learned trial judge while coming to his conclusion had stressed too much reliance on the statement of PW. 1, recorded under section 164 of the Code of Criminal Procedure (Ext. 5) which was not a substantive piece of evidence; moreover, there was a subsequent prayer for recording of a fresh statement which was turned down by the learned trial Judge. Shri De referred to the order dated 08. 7. 96 passed by the learned trial Judge in this regard. He also submitted that the surrounding circumstances and the evidence of PW. 1 read in conjunction with those of PWs. 4 and 5 (her Parents) were sufficient to prove the charge against the accused.

( 4 ) THE learned senior Advocate for the petitioner further submitted that certain unequivocal circumstances were totally overlooked by the learned trial Judge. Firstly, the fact that the girl was aged about 14 years and there were evidence of molestation and attempt to outrage her molesty and further that the accused had pulled off the lower undergarment of the PW. 1 and he himself had also put of his dress and the accused further had caused touch of his male organ into the counterpart of PW. 1 and the undergarment of PW. 1 was wet with the semen as transpired from the Seizure List (Ext. 3 ). These were overwhelming circumstances, according to the learned Senior Advocate which were totally left out by the learned trial Judge before arriving at his conclusion as a result of which it suffered from the vice of non-appreciation of the evidence and other materials on record and has to be set aside.

( 5 ) THE learned senior Advocate for the petitioner has relied on a Written Notes of Argument and also a decision of the Supreme Court reported in 1998 SCC (Crl) 76 : State of Maharashtra v. Rajendra Jawanmal Gandhi in support of his contention that the provisions of section 511, IPC could have also been applied by the learned trial Judge.

( 6 ) SO far as the expunction of remarks are concerned, Shri De submitted that the learned Judge was not correct in making the observations against the petitioner-Ashok Ghosh who figured as PW 3 during the trial and had scribed the FIR (Ext. 1 ). According to Shri De the observations were totally uncalled for and had no manner of nexus with the proper disposal of the case. He has prayed for expunging the said remarks as it has caused unnecessary wrong to the petitioner (PW. 3 ).

( 7 ) AS a part of his submission f