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2009 DIGILAW 934 (CAL)

Arun Gupta v. STATE OF WEST BENGAL

2009-12-22

PARTHA SAKHA DATTA

body2009
Judgment :- (1.) The question involved in this application is whether the learned Additional Sessions Judge, Fast Track Second Court at Siliguri was justified in not taking into consideration of a document i.e. a medical paper issued by a Doctor which, if the same could have been taken into consideration, would not have entitled the learned Judge to frame charge against the petitioner. (2.) The victim lodged a complaint with the O.C., Siliguri Police Station on 1.10.2004 to the effect that the accused Dr. Arun Kr. Gupta committed rape upon her n 30th September, 2004 when she had been to the chamber of the said doctor for her medical examination of her tumor. The police registered a case against the said Arun Kr. Gupta under Section 376(2) (d) of the Indian Penal Code and upon completion of investigation submitted charge-sheet against him under the said section of law. The case is now pending before the learned trial Court for trial. At the stage of consideration of charge before the learned trial Court a medical test report of the victim girl produced by the defence. According to the defence, the said medical test report should be taken into consideration for the purpose of consideration of charge. The learned trial Court declined to take into consideration of the said medical test report. (3.) Mr. Milon Mukherjee, learned Advocate appearing for the petitioner submits that the 161 Cr.P.C. statement of the victim and the statement of the victim under Section 164 of the Cr.PC,are not consistent and in such circumstances, it was incumbent on the part of the learned Judge to consider the medical test report. (4.) Learned Advocate for the State, Smt. Krishna Ghosh submits that if the statements of the victim girl made under Section 161 of the Cr.P.C, and under Section 164 of the Cr.P.C. are both taken into consideration, it would be glaringly evident that there is no other way left to the learned trial Court but to frame charge against the petitioner. Copy of the 161 Cr.P.C. statement and 164 Cr.P.C. statement of the victim have been produced before me. What difference is there between the two, is that, the 161 Cr.P.C. statement is not as lengthy as the 164 Cr.P.C. statement is. But in both the statements the victim in unmistakenable terms alleged commission of rape upon her by the accused. Copy of the 161 Cr.P.C. statement and 164 Cr.P.C. statement of the victim have been produced before me. What difference is there between the two, is that, the 161 Cr.P.C. statement is not as lengthy as the 164 Cr.P.C. statement is. But in both the statements the victim in unmistakenable terms alleged commission of rape upon her by the accused. When the two statements of the victim which are consistent to the FIR are taken into consideration it is prima facie clear that there is a prima facie case against the petitioner for which a charge could be framed against the petitioner and the learned Judge upon rejection of the petition of the accused fixed a date for framing of charge against the accused. A copy of the medical report has also been annexed to the revisional application but it has to be said that the opinion of the doctor is not conclusive. Where the oral statements of the victim are very glaring, very direct implicating the accused in the commission of the offence, medical evidence of a doctor of Medical College, Kolkata cannot be said to be sufficient enough at least at the stage of consideration of charge to incline the learned trial Court not to frame charge against the petitioner. It is not clear as to whether the said medical evidence forms part of 173 Cr.P.C, papers or not? Even if the said medical evidence forms part of 173 Cr.P.C. papers then also for the purpose of framing charge I am to observe here without commenting on the merit of the case of either of the parties that FIR and two statements of the victim herself are such that they cannot be dislodged from the purview of consideration of charge. The decision in State of Madhya Pradesh v. Sheetla Sahin and Ors., as reported in 2009(3) SCC (Cri) 901 is not applicable to the factual scenario of the instant case. The argument of the learned Advocate for the petitioner that the medical evidence does not signify presence of injury in the private part of the body of the victim may not be decisive at the stage of framing charge, such medical evidence may be ventilated before the trial Court only at the appropriate stage of the trial of the case. The argument of the learned Advocate for the petitioner that the medical evidence does not signify presence of injury in the private part of the body of the victim may not be decisive at the stage of framing charge, such medical evidence may be ventilated before the trial Court only at the appropriate stage of the trial of the case. Such medical evidence cannot at the stage of consideration of charge outweigh the prima facie direct statement of the victim which is consistent with the FIR. With this observation the revisional application is dismissed. Let the trial be expedited.