The court emphasized the importance of substantial evidence and criticized the reliance on case diary for conviction. The court also highlighted the need for judges to adhere to the legal process and refrain from making unwanted remarks.

P.G. Agrwal, J.

1. Heard learned Counsel for the Appellant and Mr. P.C. Gayans learned Public Prosecutor.

2. In Sessions case No. 46/95, the Appellant before us Nazrul Haque Choudhury a police constable for commission of offence under Section 342 read with Section 376 IPC and on conclusion of the trial, the led Sessions Judge, Hailakandi convicted sentenced the accused Appellant under the above Sections of law. Hence the present appeal.

3. The prosecution allegation is that on 23.11.93 the Appellant Nazrul Haque Choudhury, a police constable serving at Hailakandi police station brought P.W. 7 to the police barrack and after closing the room tried to commit rape on her whereby the alleged victim raised alarm whereupon the other police constables and the O.C. rushed to the place of occurrence and recovered the girl from the room but the accused fled the scene.

4. During trial eight witnesses were examined. Out of them P.W. 1 and 2 are the hotel keeper and taxi driver, who claim to have seen the accused along with P.W. 7. P.W. 3 is the brother of P.W. 7. All the three witnesses do not know anything about the alleged incident. P.W. 4 Shankar Deb is a police constable, P.W. 5 Milon Dasgupta is an ASI of police and P.W. 6 Nepal Chandra Sutradhar is an S.I. of police. All the three of them were serving at Hailakandi police station at the relevant time. They have stated that on the date of occurrence, the alleged victim P.W. 7 was found sitting in the barrack in the police station. They have not supported the prosecution allegation of the raising of alarm by the victim or reporting to them about any alleged rape or attempt to rape. All the three witnesses were declared hostile by the prosecution. P.W. 7 is the alleged victim Smt. Lakhi Deb. She has not supported the prosecution at all and denied any incident of alleged attempt of rape by the accused; on the contrary she has alleged that the O.C. of the police station Sri G.C. Paul P.W. 8 forcibly took her signature on the FIR. Further she has stated that no incident of rape has taken place. P.W. 8 is the investigating police officer.

5. In this case, we find that there is no substantial evidence as regards the prosecution allegation of wrongful confinement or attempt to commit rape. The alleged victim has not supported the prosecution nor it is supported by the other police personnel except the O.C. who happens to be the complainant as well as the investigating police officer.

6. Despite the above status of the prosecution evidence, the learned trial Judge has convicted the accused Appellant by stating:

P.Ws. Shankar Deb, Milon Dasgupta and Nepal Chandra Sutradhar in their examination-in-Chief did not implicate the accused. When the O/C absorbed in work heard the whispering about Nazrul and the girl and the girl's scream there is no reason as to why these three witnesses should not have been aware of them. They have acconpanied the O/C to the traffic barrack. They have definitely heard what Lakhi Deb told the O/C. Many other have witnessed the occurrence. If these police witness did not give statements before the O/C implicating Nazrul, the O/C would not have cited them as prosecution witnesses. These witnesses have been gained over by the accused or by some other people in favour of the accused. I have taken aid of the case diary Under Section 172 Code of Criminal Procedure. The O/C investigated the case under direct supervision of the Circle Inspector and under general supervision of the D.S.P. (Head quarters) and the S.P., Hailakandi. These police witnesses have no compunction in damaging a case made out by their superior and responsible officers. Their role as P.Ws. in the case smacks of not a discipline force and is unpolice men like. In the fitness of things a disciplinary proceeding be drawn up against these policemen and in the proceeding aid of the case diary be taken. P.W. Nepal Chandra Sutradhar is in-charge of the police office attached with Hailakandi Courts. He is unwor