UTPAL DAS & ANR.versusSTATE OF WEST BENGAL

                            [2010] 6 S.C.R. 495


                            UTPAL DAS & ANR.                            A
                                     v.
                         STATE OF WEST BENGAL
                     (Criminal Appeal No. 800 of 2007)
··-..
                               MAY 07, 2010                                 .-
                                                                        B
            [B. SUDERSHAN REDDY AND AFTAB ALAM, JJ.]

               Penal Code, 1860: ss.376134- Conviction under- Held:
           Evidence of eye-witness supporting prosecution case ;.;.·There
           was no material contradiction in the evidence of prosecutrix c
           and eye-witness in order to disbelieve them - Prosecutrix was
           a grown up lady with 2 children and in such circumstance
           absence of injuries on her private parts wo1.1/d not in any
           manner support the case of defence - Plea of consensual sex,
         · raised for the first time' before Supreme. Court, thus not D
        . sustainable - Crime against women - Rape.
             ·Code of Criminal Procedure, 1973: s.164' - FIR and
         s.164 statement .- Evidentiary value .ofr when attention of
         witness not drawn to the contents thereof.
                                                                        E
               Prosecution case was that on the fateful night at
          about 8 p.m., the prosecutrix-victim (PW-14) was travelling
          in a rickshaw. The appellants-accused and other
          accused persons surrounded the rickshaw and told PW-
        . 6, the rickshawpuller to divert the destination. Thereafter   F
          they forcibly took-PW-14 inside a house under
          .construction and committed rape on her one after
          another. They also threatened to kill her if she raised
          voice. Thereafter, victim was taken to a nearby tea stall
          and locked in it. After some time PW-1, PW-2 and others       G
          came there and rescued her. Trial court acquitted au the
          accused on the ground that prosecution had failed to
          prove its case beyond reasonable doubt. The High Court
          upon re-appreciation of the. evidence and the totality of
                                      495_                              H
    496      SUPREME COURT REPORTS           [2010] 6 S.C.R.


A circumstances held that the trial court had extended
  benefit of doubt to the appellants under misconception
  of facts and wrong appreciation of evidence and held the
  appellants guilty of the offence punishable under Section
  376/34 IPC. However, the High Court confirmed the
B acquittal of the other accused. The order of acquittal of
  those accused attained its finality since there was no
  appeal preferred by the State.

       In appeal to this Court, it was contended for the
  appellants that the prosecutrix made improvements in
C her statement about certain facts which were not
  mentioned in the FIR; that there was no acceptable
  evidence of the appellants committing any rape as the
  Medical Officer who examined the victim did not find any
  injuries on her person as were likely to be found had she
D been subjected to forced sexual intercourse; that the
  medical evidence and the reports of the chemical
  examination would at the most suggest that the victim
  was a party to a sexual intercourse in recent time; and
  in alternate it was contended that there was no evidence
E to suggest that the intercourse was without her consent
  or against her will or that she had been forcibly violated
  by any person.

          Dismissing the appeal, the Court
F      HELD: 1. The FIR does not constitute substantive
  evidence. It can, however, only be used as a previous
  statement for the purposes of either corroborating its
  maker or for contradicting him and in such a case the
  previous statement cannot be used unless the attention
G of witness was first drawn to those parts by which it was
  proposed to contradict the witness. In this case, the
  attention of the witness (PW-14) was not drawn to those
  parts of the FIR which according to appellants were not
  in conformity with her evidence. Likewise statement
H recorded under Section 164 Cr.P.C. could never be used
 UTPAL DAS & ANR. v. STATE OF WEST ~ENGAL              497


as substantive evidence of truth of the facts but may be      A
used for contradictions and corroboration of a witness
who made it The statement made under Section 164
Cr.P.C. can be used to cross examine the maker of it and
the result may be to show that the·eviden·ce of the witness
was false. It can be used to impeach the credibility of the   B        '
prosecution witness. In the present case it was for the               I
defence to invite the victim's attention as to what she
stated in the FIR and the statement made under Section
164 Cr.P.C. for the purposes of bringing out the
contradictions, if any, in her evidence. In the absence of    c
the same the court cannot read Section 164 statement
and compare the same with her evidence. [Para 13] [503-
o~H]

    2.1. There was no reason to disbelieve the evidence
of Prosecutrix who meticulously narrated the sequence         D
of events as to what transpired on that fateful day from
8.00 p.m. onwards till about her lodging the FIR on the
next day. There was nothing on record· to disbelieve her
evidence. The only suggestion made to her was that she
was tutored by the police at the thana and she had set        E
up a false story to implicate the appellants in the case.
No reasons were suggested for such false implication.
There was nothing to disbelieve the version given by PW-
1 which supported the prosecution's case. The evidence
of PW-6 who was the rickshaw puller was also very             F
crucial. There was no reason whatsoever to disbelieve his
statement as he was totally an uninterested witness.
[Paras 14-16] [504-A-B, E; 505-A-B]
     2.2. The evidence of PW-14. and PW-6 showed that
                                                              G
there were no material contradictions so as to disbelieve
their evidence. The version given by PW-14 received
complete corroboration from the evidence of PW-6. The
High Court rightly expressed its indignation as to the
manner in which the trial court completely misread the
vital medical evidence. PW-8 examined the victim a day        H
                                                                      ii

                                                                  y
   498     SUPREME COURT REPORTS             [2010] 6 S.C.R.

A after incident. On examination, he opined that the victim
  was habituated to sexual intercourse and therefore he
  could not express his firm opinion in his report about the
  commission of rape at the time of medical examination.
  But in the evidence, he clearly stated after considering
B the report of FSL regarding stains on victim's clothing,
  that there was sufficient proof of recent sexual
  intercourse. This cannot in any manner support the case
  of the defence. [Paras 17, 18) [505-B-G]
       2.3. The mere fact that no injuries were found on
C private parts of her body cannot be the ground to hold
  that she was not subjected to any sexual assault. Victim
  was a married grown up lady with two children and in
  such circumstances the absence of injuries on her
  private parts was not of much significance. The
D proposition canvassed for the first time across the bar
  regarding the consensual sexual intercourse was
  absolutely untenable and unsustainable. There was- not
  even a suggestion made to the victim that she had
  consented to sexual intercourse. The sequence of events
E clearly apparent from the evidence of PW-1, PW-6 and
  PW-14, leading to the sexual assault completely ruled out
  the possibility of consensual sex. The High Court rightly
  observed that the victim made no mistake in identifying
  the two appellants, and that, based on the evidence of
F PW-1, PW-6 and the victim (PW-14) herself, it is
  satisfactorily proved that the two appellants were actually
  the pers.ons who committed rape on the victim. [Paras 19
  and 20] [505-G-H; 506-A, C-E]
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G No. 800 of 2007.
       From the Judgment & Order dated 26.02.2007 of the High
   Court at Calcutta in G.A. No. 25 of 1989.
      Chanchal Kumar Ganguli, Debesr. Panda for the
H Appellants.
 UTPAL DAS & ANR. v. STATE OF WEST BENGAL                       499


   Tara Chandra Sharma, Neelam Sharma for the                           A
Respondent.

    The Judgment of the Court was delivered by

     8. SUDERSHAN REDDY, J. 1. This appeal by special
leave is directed against the judgment of the Calcutta High             B
Court setting aside the acquittal of the appellants herein under
Section 376 IPC and sentencing them to suffer rigo\OUS
imprisonment for five years and to pay a fine of Rs. 2,000/~ in
default of payment of fine to further undergo two months
rigorous imprisonment.                                                  C

       2. The prosecution story, briefly statea, is that on 28.4.1984
at about 8.00 p.m. one Sitarani Jha (PW-14) got down from a
train at Burdwan Railway Station alone and hired a rickshaw
to go to the Badamtola bus stand as she had to take a bus for           0
Satgachia. On reaching at Badamtola bus stand she learnt that
the last bus for Satgachia had already left. She then told the
rickshaw puller, Bipul Samaddar (PW-6) to take her to a girl of
her village who lived at nearby place, Kaina Gate. It is alleged
that when the victim was about to leave Badamtala bus stand             E
she was intercepted by four or five persons who forcibly took
her to a house under construction and thereafter two of them
forcibly committed rape on her one after another against her
will. One of them had a knife in his hands. The victim further
alleged that after commission of rape she was taken to a
nearby tea stall and locked there in a small room by the                F
appellants. After sometime one Parimal Babu (PW-2), Probal
Babu (PW-1) and Bipul Samaddar (PW-6) and some other
people rescued her from that shop, to whom she narrated' the
whole incident. Thereafter the victim took shelter for night in the
house of one Joydeb Prajapati (PW-4) a distant relative of her.         G
It is further alleged that on the following morning i.e. 29.4.1984
local people brought Utpal Das (appellant no. 1 herein),
 Haradhan @ Bhalta Sutradar (appellant no.2 herein) and one
 Banshidhar Dawn before the victim and she identified Utpal
                                                                        H
    500      SUPREME COURT REPORTS                  [2010) 6 S.C.R.


A and Haradhan @ Bhalta Sutradhar as the persons who
  committed rape on her and at that time Haradhan @ Bhalta
  managed to flee away. This, in fact, is the story given out by
  the prosecutrix - Sitarani Jha while she lodged the FIR (Ex. 9)
  with Burdwan (Sadar) Police Station at 10.45 a.m. on
B 29.4.1984.

         3. Based on the report (Ex.9) the Police Station Burdwan
    registered a case under Sections 366, 368 and 376 read with
    Section 34 of the IPC against the appellants.

C        4. During the course of investigation, site was inspected,
    the seizure list was prepared, the prosecutrix and the appellants
    were got medically examined and the medical examination
    reports of the prosecutrix (Ex.P-2) as well as Ex. P-3 and Ex.
    P-4 of the appellant nos. 1 and 2 respectively were obtained.
D
       5. After completion of the investigation, the police filed
  charge sheet against the appellants under Sections 366, 368
  and 376 read with Section 34 of the IPC. The prosecution
  altogether examined 17 witnesses (PW-1 to PW-17) and 09
E documents were got marked (Ex. P-1 to P-09). The statements
  under Section 313 Cr.P.C. of the appellants were recorded in
  which they pleaded their false implication.

       6. The learned Additional Sessions Judge upon
  consideration of the evidence and material available on record
F held that prosecution has failed to prove its case beyond
  reasonable doubt and accordingly acquitted all the accused of
  the charges framed against them.

       7. Aggrieved by the order of acquittal, the State of West
G Bengal preferred an appeal before the High Court. The High
  Court upon reappreciation of the evidence and the totality of
  circumstances held that the trial court has extended benefit of
  doubt to the appellants under misconception of facts and wrong
  appreciation of evidence and accordingly came to the
H
  UTPAL DAS & ANR. v. STATE OF WEST BENGAL                     501
          {B. SUDERSHAN REDDY, J.]
 conclusion that the appellants are guilty of the offence              A
 punishable under Section 376/34 of the IPC. However, the High
 Court confirmed the acquittal of the other accused. The order
 of acquittal of those accused has attained its finality since there
 is no appeal preferred by the State. Hence, the appellants are
 before us in this appeal challenging their conviction and award       B
 of sentence by the High Court under Section 376/34 of the IPC.

      8. We have heard the learned counsel appearing for the
 appellants as well as for the State and perused the material
 available on record.
                                                                       c
         9. Shri Chanchal Kumar Ganguli, learned counsel
   appearing on behalf of the appellants submitted that the High
   Court failed to appreciate that there was no acceptable
   evidence of the appellants committing any rape as the Medical
   Officer who examined the victim did not find any injuries on her D
. person as are likely to be found had she been subjected to
   forced sexual intercourse. The medical evidence and the
·. reports. of the chemical examination may at the most suggest
                     a
 . tbat the victim was party to a sexual intercourse in recent time.
   But there is no evidence to suggest that the intercourse was E
   without her consent or against her will or that she had been
   forcibly violated by any person. The counsel thus submitted that
   essential ingredients of the offence of rape under Section 376
   IPC are not present in the case. It was also submitted that the
   evidence of prosecutrix suffers from material contradictions. Her F
   version was not supported by any of the prosecution witnesses.
   She is not a truthful witness and it may be unsafe to rely upon
   her evidence and convict the appellants for the offence
   punishable under Section 376 IPC. An attempt was also made
    by the learned counsel for the appellants to read the statement G
   of the victim recorded under Section 164 Cr.P.C and to .
    compare the same with her evidence. It was also submitted that
    PW-2, PW-3, PW-4 and PW-5, were declared hostile by the
    prosecution and the prosecution is left with no evidence other
    than the statements of Rikshaw Puller (PW-6) and the victim H
    who contradict each other.
    502      SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A      10. Learned counsel for the State submitted that evidence
  of the victim (PW-14) itself is sufficient to convict the appellants
  and at any rate, her version is completely supported by the
  evidence of PW-6, whose evidence cannot be rejected for
  whatsoever reasons. It was further submitted that there is
B nothing in the medical evidence which supports the case of the
  appellants as contended by the .appellants.

       11. In order to consider as to whether the prosecution
  established the case against the appellants beyond reasonable
C doubt, we are required to critically scrutinize the evidence of
  the prosecutrix and Probal Babu· (PW-1), Bipul Samaddar (PW-
  6) and also the evidence of Dr. A. Chakravorty (PW-8) as the
  entire case turns upon their evidence.

         12. In exhibit P-9 (report) the prosecutrix (PW-14) alleged
D   that on 28.4.1984, at about 8.00 p.m when she was going in a
    rickshaw towards Kaina Gate all of a sudden the appellants and
    other accused surrounded the rickshaw and told the rickshaw
    puller to divert the destination and they forcibly took her to a
    nearby house under construction and tried to rape her. She
E   made an attempt to save herself and requested them to free
    her. The appellants did not heed to her request but forcibly
    committed rape on her one after another. She was prevented
    from raising her voice as they threatened her to kill. One of them
    was holding a knife. Thereafter, the accused took her to a
F   nearby tea stall and locked her inside it. That after about 15/
    20 minutes one Asok Babu, Parimal Babu (PW-2) and Probal
    Babu (PW-1) and many others came there and rescued her
    from that shop after unlocking the door. She narrated the entire
    episode before them. Thereafter all of them took her away to
G   the house of Joydeb Projapati where she took shelter in the
    night. Next day morning PW-1, PW-2 and others who rescued
    her came along with the accused where she identified the
    appellants as the one who committed rape on her. She also
    stated that she experienced pain in her private parts and all
H   over her body.
  . UTPAL DAS & ANR. v. STATE OF WEST BENGAL                       503
            [B. SUDERSHAN REDDY, J.]
         13. The Prosecutrix more or less reiterated the same facts        A
  in her evidence. In the cross examination she stated that one
   of the miscreants "ji,;mped" on the rickshaw and threatened her
   at the point of knife that she would be killed if she raises any
   hue and cry. She identified appellant No.2 in the court as the
  one who threatened her with the knife. Relying on this part of           8
  the statement in the cross examination, learned counsel
   suomitted that this part of the story of appellant no.2 'jumping
   on the rickshaw and threatening her at the point of knife etc.
   was not stated by her in the first information report given to the
. police. This one circumstance_acc;ording to the learned counsel          C
   for the appellants belies the evidence of the Prosecutrix as she
   went on making improvements. We find no merit in this
 -submission for the simple reason that the contents of the first
   information report were never put to the victim. It is ·needless
   to restate· that the First Information Report does not constitute
 . substantive evidence. It can, however, only be used as a                D
   previous statement for the purposes of either corroborating its
   maker or for contradicting him and in such a case the previous
   statement cannot be used unless the attention of witness- has
   first been drawn to those parts by which it is proposed to
   contradict the witness. In this case the aftention of the witness       E
   (PW-14) has not been drawn to those parts of the FIR which
. according to appellants are not in conformity with her evidence.
   Likewise statement recorded under Section 164 Cr.P.C. can
   never be. used as substantive evidence of truth of the facts but
   may be used for contradictions and corroboration of a witness           F
   who made it. The statement made under Section 164 Cr.P.C.
   can be used to cross examine the maker of it and the result
   may be to show that the evidence of the witness is false. It can
   be used to impeach the credibility of the prosecution witness.
   In the present case it was for the defence to invite the vict!m's       G
   attention as to what she stated in the first information report and
   statement made under Section 164 Cr.P.C. for the purposes
    of bringing out the contradictions, if any, in her evide_nce. In the
    absence of the same the court cannot read 164 statement and
    compare the same with her evidence.                                    H
    504     SUPREME COURT REPORTS                  [2010) 6 S.C.R.


A      14. We do not find any reason whatsoever to disbelieve
  the evidence of Prosecutrix who meticulously narrated the
  sequence of events as to what transpired on that fateful day from
  8.00 p.m. onwards till about her lodging the first information
  report on the next day. There is nothing on record to disbelieve
8 her evidence. The only suggestion made to her is that she was
  tutored by the police at the thana and she had set up a false
  story to implicate the appellants in the case. What are the
  reasons suggested for such false implication? None.

        15. Probal Chakarborty (PW-1), in his evidence narrated
C as to what PW-6, told him on that fateful night about the incident.
  The rickshaw puller told him that he was carrying a woman
  passenger in his rickshaw to proceed towards Kaina Gate and
  on the way 4-5 young men at the point of knife directed him to
  divert his rickshaw and that one of them sat by the side of the
D girl in the rickshaw. Upon reaching near a house under
  construction he was asked by those men to leave the girl with
  them. This incident PW-6, narrated to PW-1, within a short time
  after the incident. That all of them searched for the girl and·
  ultimately found the girl in a nearby tea stall where she was
E locked inside. There is nothing to disbelieve the version given
  by PW-1 which supports the prosecution's case.

        16. Bipul Samaddar (PW-6) is none other than the rickshaw
  puller whose evidence is very crucial. He in his evidence clearly
  stated that on the fateful day at about 8.00 p.m. one woman
F hired his rickshaw to Badamtola bus stand. He took his
  rickshaw to Badamtola bus stand but on finding that she missed
  her bus took her towards Kaina Gate on her instructions. It is
  at that time 4-5 young men appeared there and "forcibly got
  her down from the rickshaw and took her away. Out of fear he
G rushed towards para" (Mohalla) and reported the matter to PW-
  1 and others. Thereafter he along with PW-1 and others went
  on searching for the woman and ultimately found her in a tea
  stall of one Punjabee from where she was rescued. Thereafter
  he along with others took her to one of her relative's house. It
H
   UTPAL DAS & ANR. v. STATE OF WEST BENGAL                     505
            [B. SUDERSHAN REDDY, J.]
    is also in his evidence that two of the miscreants (appellants)     A
    forcibly took that woman away on that night and he identified
    them in the court. There is practically nothing suggested to this
    witness in the cross examination. We do not find any reason
  · whatsoever to disbelieve the statement of PW-6 who is totally
· · an uninterested witness.                                            B

      17. On consideration of the evidence of PW-14 and PW-
  6, we are of the opinion that there are no· material
  contradictions in their evidence so as to disbelieve their
  evidence. The version given by PW-14, (victim) receives               C
  complete corroboration from the evidence of PW~6. It is not
 _even suggested to PW-6, that such an incident has not taken
  place on that fateful day. We see no reason whatsoever to
  disbelieve his evidence.

         18. One more aspect that requires our consideration is as D
    to whether the medical evidence does not support the _
    prosecution's case? The High Court. rightly expressed its
    indignation as to the manner in which the trial q9urt completely        .. .. ·.
                                                                             ,
  , misread the vital medical evidence. Dr. A. Chakroborty, (PW-
·.. 8)_ ex~mined the victim on 29.4.1984. On examination he E
    opinecfthat the vidim is habit~ated to sexual intercourse and
'··therefore could not express his firm opinion in his report about
    the commission of rape at the time of medical examination. But
    in the evidence he clearly stated after considering the report
    of FSL regarding stains on victim's clothing, that there is F
    sufficient proof of recent sexual intercourse. The vaginal swab
    and smear were sent to Chemical Examiner. Based on the FSL
    report and the report of Serologist (Ex. 7) he found that the
    semen was present in the vaginal swab of the victim. We fail
    to appreciate as to how and in what manner the medical G
    evidence supports the case of the defence.

      19. The learned counsel for the appellants however,
  submitted that the medical examination report of the victim
  shows that no injuries were found on her private parts or on any ·
                                                                        H
    506     SUPREME COURT REPORTS                 [201 O] 6 S.C.R.


A part of her body. We are required to note that victim Sita Rani
  Jha is a married grown up lady and blessed with two children
  and in such circumstances the absence of injuries on her
  private parts is not of much significance. The mere fact that no
  injuries were found on private parts of her body cannot be the
B ground to hold that she was not subjected to any sexual assault.
  The entire prosecution story cannot be disbelieved based on
  that singular assertion of the learned counsel. In this regard
  another submission was made by the learned counsel for the
  appellants that the sexual intercourse, if any, was With the
c consent of the victim. According to him it was consensual
  sexual intercourse. This proposition canvassed for the first time
  across the bar is absolutely untenable and unsustainable. There
  is not even a suggestion made to the victim that she has
  consented to sexual intercourse. The sequence of events
  clearly apparent from the evidence of PW-1, PW-6 and PW-
0
  14, leading to the sexual assault completely rules out the
  possibility of consensual sex. We have no hesitation to reject
  the submission.

        20. The High Court rightly observed that the victim made
E no mistake in identifying the two appellants, and that, based
  on the evidence of PW-1, PW-6 and the victim (PW-14) herself,
  it is satisfactorily proved that the two appellants were actually
  the persons who committed rape on the victim on that faf P.ful
  day on 28.4.1984.
F
        21. For all the aforesaid reasons, we find no merit in this
    appeal and the same is accordingly dismissed.

    D.G.                                       Appeal dismissed.