Reliability of victim testimony, medical evidence, and witness statements in establishing guilt under the Indian Penal Code.

Shivakant Prasad, J.

1. The instant appeal is directed against the judgment and order of conviction dated 27.09.2013 and sentence dated 30.09.2013 passed by the Additional Sessions Judge, 2nd Fast Track Court, Raiganj, District- Uttar Dinajpur in Sessions Case No. 128 of 2007 convicting the appellant under Sections 363/376 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for seven years and to pay a fine of Rs. 10,000/- in default to suffer Rigorous Imprisonment for six months for the offence punishable under Section 376 of the Indian Penal Code, 1860 and sentenced to suffer Rigorous Imprisonment for three years and to pay fine of Rs. 5,000/- in default to suffer Rigorous Imprisonment for three months for the offence punishable under Section 363 of the Indian Penal Code, 1860 inter-alia, on the grounds that the impugned order of conviction and sentence is against the evidence on record, is bad in law and liable to be set aside as the learned Judge having relied upon inadmissible evidence on surmises and conjectures not borne out by any materials evidence on record.

2. Prosecution case leading to the instant appeal is that on the complaint of Arun Mondal Raiganj P.S. case no. 312/06 was registered under Sections 363/366/376 of IPC against three accused persons including the appellant to this effect that victim girl daughter of Manindra Mondal went out of the house to bring a calf from a nearby pond but she did not return home. On 06.8.2006 inmates of the family came to know that she was in the house of Dhiren Roy and she was recovered from his house. The victim girl narrated to the complainant that she had friendship with the accused Asit Roy who had introduced her to the appellant and sent her with him to Siliguri where they stayed in a lodge at Medical More. She was raped for 20 days by putting vermillion on her parted hair. After 20 days she was brought to the house of the appellant on 05.8.2006 and confined there. After the case was committed to the Court of Sessions, trial started by framing charge under Sections 363/366/376 IPC against the appellant and separate charge was framed against other accused persons under Section 109 IPC. To substantiate the charges prosecution examined as many as 12 witnesses and after the evidence was closed the appellant declined to adduce any defense witness in support of his innocence.

3. Learned Judge by impugned judgment held the appellant guilty of the charge under Sections 363/376 IPC and the accused Asit Roy guilty of the charge under Sections 363/366/376/109 IPC whereas accused Reba Roy was found not guilty and was acquitted.

4. Now the point for decision is as to whether the judgment impugned is tenable in law.

5. It is contended by learned Advocate for the appellant that the evidence of Dr. Pradip Kumar Bhattacharjee P.W.6 who held ossification test (Exbt. 6) to determine the age of the victim girl was of the opinion that victim seemed to be more than 18 years but less than 20 years. Dr. Tapas Kumar Ghosh P.W. 3 who examined the victim girl observed on examination that there was no sign of external injury and no sign of resistance on her body surface.

6. It is also submitted that the prosecution has not produced any evidence, either oral or documentary, to substantiate that the victim girl had stayed in a lodge at Siliguri Medical More since no staff of the lodge was examined where the victim girl and the appellant Dhiren Roy, stayed for some days which makes the prosecution case unreliable. It is further submitted that S.1. Dilip Kumer Karmakar P.W. 9 Investigating Officer did not visit any lodge at medical more, Siliguri. Therefore, the Trial Judge failed to consider case in its right prospective inasmuch as alleged incident took place on 14.6.2006, but the First Information Report was lodged on 10.8.2006 and recovery was made on 05.8.2006. So the First Information Report was belated for more than one month from the date she went missing and after five da