The duty of the prosecution to prove the guilt of the accused beyond reasonable doubt and the importance of credible evidence in criminal cases.

JUDGMENT :

Bibek Chaudhuri, J.

1. The instant appeal is directed against the judgment and order of conviction dated 31st August, 2017 and 1st September, 2017 respectively passed by the learned Additional Sessions Judge, 5th Court at Howrah in Sessions Trial Case No. 24 of 2016 convicting the appellant under Section 354A/376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year for the offence under Section 354A of the Indian Penal Code and also to suffer rigorous imprisonment for seven years and to pay fine of Rs. 5000/- in default to suffer a further rigorous imprisonment for six months for the offence under Section 376 of the Indian Penal Code.

2. The appellant has assailed the judgment and order of conviction and sentence passed by the trial court on the ground that the prosecution failed to produce the statement made before the police at the first instance immediately after the occurrence and the written statement of the defacto complainant which is treated by the police as FIR is not an FIR, but a statement made by her under Section 161 of the Code of Criminal Procedure and this being the position, the so-called FIR is hit by Section 162 of the Code of Criminal Procedure.

3. Secondly, there are infirmities in the evidence of the victim lady. Though the testimony of the prosecutrix could be acted upon and be the basis of conviction without being corroborated in material particulars, if her testimony is trustworthy and free from infirmities, there are infirmities in the oral evidence of the prosecutrix and therefore, it cannot be taken as the solitary foundation for the conviction of the appellant.

4. Thirdly, the prosecutrix went to have an X-ray of her waist in a diagnostic centre at Bally in the district of Howrah. For the purpose of conducting X-ray, she wore a gown provided to her by the diagnostic centre. The appellant was a technician, of X-ray department of the said diagnostic centre. As a technician he naturally touched the victim lady, corrected her posture and position on the X-ray table and the victim lady might think that she was inappropriately touched. There is absolutely no evidence to show that the victim lady was sexually harassed or she was revised by the appellant when the appellant allegedly inserted his finger inside the vagina of the victim lady.

5. Fourthly, some employees of the said diagnostic centre were examined by the Investigating Officer and they were cited as witnesses in the charge-sheet on behalf of the prosecution. During trial, however, the prosecution failed to examine those witnesses. The said witnesses deposed as defence witnesses and stated that they were present at the time of conducting X-ray of the waist of the victim lady and the appellant did not commit any offence as alleged by her. The learned trial judge failed to appreciate the evidence adduced by the defence in proper perspective and convicted the appellant only on the basis of sole testimony of the prosecutrix.

6. It is also urged by the learned Counsel for the appellant that when two plausible views with regard to an incident are forthcoming, the court shall accept the version that supports the accused and the accused would have been acquitted from the charge on benefit of doubt. On the above grounds, the judgment and order of conviction passed by the learned trial judge is under challenge in the instant appeal.

7. Let me now state the salient facts of the case:-

That on 11th January, 2015 at about 8.45 hours the defacto complainant and her husband went to LASCO Medicare Centre at Bally for X-ray of her waist. Before conducting X-ray, one lady staff of the said diagnostic centre helped the defacto complainant to wear the X-ray gown and then she left the place closing the door of the X-ray room. Then a technician laid the defacto complainant down on the X-ray table for X-ray of her waist. At that time he touched her breast and then turned her on the opposite side and inserted his finger into her re