Inconsistencies in a witness's statements can lead to a failure of the prosecution's case, necessitating acquittal.

JUDGMENT :

D. Dash, J.

1. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence 4th March 2010 passed by the learned Additional Sessions Judge, Jagatsinghpur in Criminal Trial Case 48 of 2008 arising out of G.R. Case No.368 of 2004 of the file of learned Judicial Magistrate First Class (J.M.F.C.) (P), Kujanga.

The Appellant (accused) with two others faced the trial being charged for commission of offence under section- 366/376/109/34 of the Indian Penal Code, 1860 (for short, called ‘the IPC’). The Trial Court analyzing the evidence of the victim and other prosecution witnesses and on going through the documents admitted in evidence from the side of the prosecution, having evaluated the same has found this accused guilty for commission of offence under section-376 of the IPC. Accordingly, he has been sentenced to undergo rigorous imprisonment for a period of ten (10) years and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for three months.

2. The prosecution case is that on 02.08.2004 around 9 pm, the victim (P.W.11) then aged about 15 years had gone outside and this accused took her away in a car to distant place. A report to the above effect being lodged by the father of the victim (P.W.6), the same was treated as F.I.R. and case being registered, investigation commenced. On completion of investigation, this accused and other two others faced trial for commission of offence under section-366/376/109/34 of the IPC. The Trial Court has finally convicted this accused for commission of offence under section-376 of the IPC and accordingly, the accused has been sentenced as aforesaid, when other two co-accused persons stood acquitted thereofs.

3. Learned Counsel for the Appellant(accused) placing the deposition of the victim (P.W.11) submitted that although she during trial narrated many facts regarding the incident and the role played by this accused therein in implicating this accused to have sexually assaulted her; in her previous statement recorded under section-164 of the Cr.P.C. she had stated absolutely nothing against this accused. This P.W.11 during trial having stated all those, she then does not offer any explanation as to why or for what reason, she had not divulged all those facts before the Magistrate, before whom she was called upon to give her statement. According to him, the Trial Corut ought not to have held that this accused guilty for offence under section-376 of the IPC, even though for a moment, it is said that the prosecution has proved that victim at the relevant time was below 16 years of age, as her evidence as to sexual assault upon her cannot be believed; the conviction recorded by the Trial Court has to fail.

4. Learned Counsel for the Respondent-State submitted that the victim (P.W.11) having come to the witness box during trial since has implicated this accused to have ravished her by describing all details in which way that was so done, merely because, she had not stated all those during her cross- examination under section-164 Cr.P.C. that itself would not be the ground to discard of the evidence of P.W.11 and eschew the same from consideration.

5. Keeping in view the submissions made; I have carefully read the judgment passed by the Trial Court and I have also extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 16.

6. The victim is the star witness for the prosecution, and she during trial has been examined as P.W.11. She was then reading in Matriculation in the High School. During her examination for recording statement under section-164 of the Cr.P.C. in the case in the year 2004, she has stated her age to be 16 years. When her age in the year 2009 at the time of examination during the trial has been s