Where there is contradiction with regard to place of occurrence, identity of the appellant, contradiction between the evidence of the victim girl and the evidence of the Medical Officer, conviction of the appellant ought not to have been warranted. This was decided in the case of Soumen @ Nemai Patra –Vs State of West Bengal [CRA 782 of 2015] by the Hon’ble Justice Bibek Chaudhuri in the High Court of Calcutta.
The brief facts of the case are that a complaint was made against the petitioner, saying that he tried to commit rape upon the 16 year old deaf and dumb daughter of the petitioner in the absence of him and his wife. After the police investigated the matte, the criminal proceedings took place as per the procedure of law. The prosecution, at the trial stage examined 9 witnesses and produced evidence, sufficient to convince the judge that the accused was guilty. He was thereafter sentenced for three years. This petition is filed to challenge the order passed by Sessions Trial Court.
The counsel for the appellant points out many discrepancies in the case. Firstly, he contends that the FIR file had the name of the accused as Sonai Patra but later or on it was discovered that the accused’s actual name is Nemai Patra. Also, In view of such discrepancy, the Investigating Officer did not take any step for holding TI Parade of the suspect. Therefore, identity of the appellant as the perpetrator of the offence remains doubtful.
Secondly, the victim girl gave different accounts of instant at different point of time. She stated to her parents that the accused attempted to commit rape upon her. On the next day she stated before the learned Magistrate under Section 164 of the CrPC that she was raped by the appellant.
Advocate for the appellant also drew the attention in respect of contradiction in the evidence on record with regard to place of occurrence. In the written complaint the informant stated that the alleged offence was committed in the room of the victim girl in the evening. But in cross examination, the victim girl stated that before the incident one person had taken her to another place from her house and the appellant committed such offence upon her. Deciding upon this case, the court relied upon the case of Phool Chand vs. State of U.P 2004 Cri.L.J 1904 where it was held “ statement recorded under Section 164 of the Code of Criminal Procedure cannot be relied on for the purpose of conviction”.
The court observed that in this case that Trial Judge has committed the same mistake in violation of the ratio Phool Chand’s case and considered the statement recorded under Section 164 of the Code of Criminal Procedure of the victim girl as substantive evidence in chief. This is absolutely in contravention of the scope of evidentiary value of a statement under Section 164 of the Code of Criminal Procedure and against the principles of examination, cross examination and reexamination of a witness under the Indian Evidence Act.
Based on these reason, the court found no merit in the conviction and allowed the appeal of the accused thereby setting aside the order of conviction.