Limitations of using a statement recorded under Section 164 of the Code of Criminal Procedure as substantive evidence, and the legal position on establishing guilt under Section 375 IPC.

JUDGMENT

Bibek Chaudhuri, J. - This is an appeal filed by the convict/appellant against the judgment and order of conviction dated 26th November, 2015 and sentence dated 27th November, 2015 passed by the Additional District and Sessions Judge, 2nd Court at Contai at Purba Medinipur in Sessions Trial No.6(8) of 2012 arising out of Sessions Case No.223(8) of 2012 whereby the appellant was sentenced to suffer rigorous imprisonment for three years and also to pay fine of Rs.4000/-, in default, to suffer simple imprisonment for six months.

2. Patashpur P.S Case No.90/2009 dated 5th September, 2009 under Sections 376/511 of the Indian Penal Code was initiated on the basis of a written complaint submitted by one Manoranjan Dalui alleging, inter alia, that on 4th September, 2009 at about 6 pm, taking opportunity of the absence of the informant and his wife, the appellant tried to commit rape upon her deaf and dumb daughter by tearing her wearing apparels. They came to know about the incident after returning home from outside.

3. Police took up the case for investigation and on completion of investigation filed charge sheet against the appellant under Sections 376/511 of the Code of Criminal Procedure.

4. The said case on being committed to the learned Court of Sessions, was transferred to the Fast Track 3rd Court of the learned Additional Sessions Judge at Contai for trial. It is found from the lower court record that the learned Trial Judge framed charge against the appellant under Sections 376/511 of the Indian Penal Code on 27th August, 2012. Again on 28th February, 2014 the charge was altered and alternate charge under Section 376 of the Indian Penal Code was framed against the accused/appellant. As the appellant pleaded not guilty, trial of the case commenced.

5. In order to establish charge against the accused, prosecution examined as many as nine witnesses. Series of documents are marked as exhibits which I propose to refer subsequently in the body of the judgment.

6. The learned Trial Judge on due consideration of evidence on record found the accused guilty for committing offence under Sections 376/511 of the Indian Penal Code and convicted and sentenced him accordingly.

7. Learned Advocate for the appellant at the outset draws my attention to the FIR submitted by PW1 Manoranjan Dalui. In the FIR the informant stated the name of the offender as Sonai Patra. However in his examination-in-chief he stated that the name of the accused is Nemai Patra and he wrongly described the accused as Sonai. From the cross examination of PW1, it transpired that at the time of the alleged occurrence the victim girl was aged about 16 years. She was deaf and dumb. When the incident took place he and his wife were not present in the house. When they came back, they found the victim girl crying sitting in her room. On being asked she expressed by making certain signs that she was raped by the accused. It is specifically pointed out by the Advocate for the appellant that after the incident, PW1 went to the house of the appellant and informed the matter to the family members of the accused. They told the informant to sit and settle the dispute. But the father of the accused abused them and did not agree to talk to them. So on the next day he lodged the FIR. According to the learned Advocate for the appellant if the evidence of PW1 is accepted on its face value, then a reasonable suspicion arises on the issue as to why the father of the victim initially wanted to settle the dispute amicably. If his girl is ravished by the accused, he would certainly file complaint before the police without unnecessary delay. However, in the instant case the FIR was lodged after more than 24 hours of the incident. It is further submitted by the learned Advocate for the appellant that the de-facto complainant alleged in her written complaint that the accused admitted to commit rape upon her deaf and dumb daughter. But in his evidence he stated that her daughter was raped