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2011 DIGILAW 273 (CAL)

Sushil Kumar Biswas v. STATE OF WEST BENGAL

2011-02-25

ASIM KUMAR RAY

body2011
JUDGMENT 1. THIS appeal is directed against the judgment and order dated 27.7.2007 and 31.7.2007 passed in Sessions Trial No. 1(4)/2007 corresponding to Sessions Case No. 16(1)/2007 arising out of G.R. Case No. 2921 of 2007 in connection with Jagaddal P.S. Case No. 422 of 2006 dated 28.11.2006 under Sections 376(2)(f)/323 of Indian Penal Code, 1860 and sentencing accused person/appellant Sushil Biswas under Section 376(2)(f)/511 of IPC to suffer R.I. for five years and to pay a fine of Rs. 2,000/- in default to suffer S.I. for two months more. The sessions case was initiated on the basis of a written complaint filed by Laxmi Ganguly, mother of victim girl Puja Ganguly on 20.11.2006 at the police station around 14.25 hours. 2. THE case of the prosecution in a nutshell was that on 20.11.2006 complainant gave food to her daughter Puja when she returned from school and left for the market. Puja was then six years old and studying in class-III. Her elder brother was playing outside and her father Biswanath Ganguly went out for work in the morning around 9 a.m. Puja was alone at home and at the time appellant/petitioner Sushil Biswas arrived at their house. He closed the door finding her alone in the house. Appellant stripped of all the cloths of Puja. He was aged about 62 years and a neighbour of the complainant. Puja/victim used to address him as Sushil dadu. Appellant started fondling with Puja's naked body and at that time her mother, the complainant returned home. She found Puja in completely naked condition and was being fondled by the appellant. Seeing that matter she raised alarm. THE appellant then put on his lungi and fled away. When she asked her daughter as to what had happened, her daughter Puja told her that appellant/Sushil Biswas stripped her off all her cloths and started kissing all over her body inserting his finger inside her vagina and then inserted his penis inside the vagina. Some sticky substance came out from his penis which was thrown on her body and she complained of pain in her sex organ. On the basis of the FIR, Jagaddal P.S. Case No. 422 of 2006 under Section 376(2)(f)/323 of Indian Penal Code was started. Police officer, Sub-inspector Lakshman Chandra Singh took up the investigation. Appellant was arrested. On the same day Puja/victim was medically examined and her wearing, apparel was seized. On the basis of the FIR, Jagaddal P.S. Case No. 422 of 2006 under Section 376(2)(f)/323 of Indian Penal Code was started. Police officer, Sub-inspector Lakshman Chandra Singh took up the investigation. Appellant was arrested. On the same day Puja/victim was medically examined and her wearing, apparel was seized. The appellant was also medically examined on next date i.e. on 21.11.2006. The victim was sent to the learned Magistrate on the following day of incident i.e. on 21.11.2006 and his statement was recorded by the learned Magistrate. After collection of injury report and on examination of the available witnesses charge-sheet against the appellant Sushil Biswas under Sections 376(2)(f)/323 of Indian Penal Code was submitted. 3. LEARNED Additional Sessions Judge, Barrackpore took up the trial of the case. Charge against the appellant was framed under Section 376(2)(f) of IPC. The appellant pleaded not guilty to the charge. He denied the case of the prosecution completely. 4. IN course of the trial the prosecution produced fourteen witnesses to substantiate the charge levelled against the accused/appellant Sushil Biswas. On completion of the trial the learned Additional Sessions Judge has passed the judgment and order impugned, so this appeal. Mr. Partha Pratim Dutta, learned Counsel appearing on behalf of the petitioner has contended that the mother of the FIR maker was outside of the house at the relevant point of time as alleged. When she was returning home. He has taken me through the FIR, evidence of the victim and her statement recorded under Section 164 of Cr. P.C. He has highlighted that the statement of the victim has pointed out to the presence of "one person" saying that person gave oil and water to her/victim. That one person was not examined. Non-examination of that person tells upon the prosecution case. He has further contended that the father of the victim was declared hostile. The father has stated that Puja told him that she fell down and sustained injury. Nobody has seen the incident. Everyone heard it. The prosecution witnesses have stated about the incident and the said statement/ deposition is nothing but hearsay. The evidence of the mother/complainant stands apart from the evidence of father. The doctor/P.W.12 has stated that such injury may occur on fall. Learned Counsel has invited my attention to Ext. 2/examination report of doctor Rabindra Mohan Saha. Everyone heard it. The prosecution witnesses have stated about the incident and the said statement/ deposition is nothing but hearsay. The evidence of the mother/complainant stands apart from the evidence of father. The doctor/P.W.12 has stated that such injury may occur on fall. Learned Counsel has invited my attention to Ext. 2/examination report of doctor Rabindra Mohan Saha. The doctor has stated that he was in doubt about rape which is why he sought for expert opinion. He has further contended that no report from Forensic Science Laboratory (FSL) regarding wearing apparel was produced. Doctor B. Roychowdhury's report has been marked as Ext. 3/1. Dr. Roychowdhury was not examined as he has not supported the prosecution case which is apparent on the face of his report. The de facto complaint/mother has not stated in her evidence that she saw accused/appellant hugging her daughter in naked condition. She has allegedly seen an assembly of 150 persons near to her home when she returned. There is material discrepancy in the evidence on record. The victim/child was tutored. The FIR shows that appellant was implicated in this case. To give a stand to his contention he has referred to the decisions reported in 2006(4) AICLR (SC) 646, 2009(1) AICLR (SC) 356, 2009 (4) AICLR (Cal) 258, 2008(4) AICLR (SC) 655, 2007(2) AICLR(SC) 1, 2007(1) AICLR (SC) 44, 2007(3) AICLR (SC) 276, 2009(1) AICLR (SC) 198, 2009 (3) AICLR (SC) 218, 2006(1) WBLR (SC) 216, 2006 (4) AICLR (SC) 123, 2009 (3) AICLR (SC) 313, 2006(3) AICLR (SC) 1, 2007 (2) AICLR (SC) 246 and AIR 2003 SC 3926 . 5. BESIDES it, he has referred Broom's Legal Maxim 10th edition page 200, Salmond's Jurisprudence 368 and Oxford Dictionary page 623. 6. MR. Abhijut Auddy, learned Counsel appearing for the State has contended that the FIR was lodged within three hours from the time of incident. The distance of the place of occurrence is three kms. from the police station. He has taken me through Section 6 of the Indian Evidence Act, 1872. He has contended further that victim as prosecution witness has stated about the incident in details in course of his evidence. The doctor who examined the victim just after the incident has stated about the injury sustained by the victim. from the police station. He has taken me through Section 6 of the Indian Evidence Act, 1872. He has contended further that victim as prosecution witness has stated about the incident in details in course of his evidence. The doctor who examined the victim just after the incident has stated about the injury sustained by the victim. The evidence of the prosecution witnesses if taken together then there is nothing which can question the finding of the learned Court below. Learned Additional Sessions Judge has convicted the accused person under Section 376(2)(f) /511 of IPC instead of under Section 376(2)(f) of IPC under which the charge was framed against the accused. 7. WE have to see as to whether the impugned judgment and order of sentence is based on evidence on record or otherwise. WE have to see further as to whether the impugned judgment and order of sentence suffers from illegality or not. 8. THE prosecution has examined in total 14 witnesses in this case to bring the offence home to the accused person/appellant Sushil Kumar Biswas. Prosecution Witness No. 1 is the de facto complainant/mother of the victim girl. She has stated in her evidence that she is the resident of Udaynagar under P.S. Jagaddal. She resides with her husband, one son and one daughter in a rented accommodation. Their landlady is Anjali Biswas. Her daughter Puja is aged about seven years and she is a student of Class-II. THE incident took place before 4/5 months range from the date of deposition. She went to the market. Her husband went out for work. On returning home she noticed an assembly in their house and found Sushil Biswas there. Her daughter Puja told her that Sushil Biswas was fondling with her. She has stated further that she slapped him with her slipper and chased him through the field upto aambagan. She had been to the police station and lodged written complaint. THE complaint was read over to her and then she put her LTI on it. She has stated that it is true that the date of incident was 20.11.2006 (Monday). Puja complained before her that she was feeling pain in her private part. She has stated that she saw Sushil Biswas putting on a lungi and he was bare bodied. THE complaint was read over to her and then she put her LTI on it. She has stated that it is true that the date of incident was 20.11.2006 (Monday). Puja complained before her that she was feeling pain in her private part. She has stated that she saw Sushil Biswas putting on a lungi and he was bare bodied. She has stated that Puja has not stated to her that Sushil dadu made her naked and kissed her althrough and started fondling her. She has stated that Puja has not stated to her that Sushil Biswas inserted his finger on her vagina and put his penis inside her vagina. She has not stated that she suffered pain. She was cross-examined and in her cross-examination she has stated that her daughter being a naughty there is a possibility of her daughter sustained injury falling from the staircase. She has also stated in her cross-examination that when she returned from the market she found huge crowd in her house and without understanding anything she started chasing the accused. She went to police station at 11.30 a.m. and lodged a FIR. P.W. No. 2 is victim girl Puja Ganguly. She has stated in her evidence that she came to Court before and mentioned about the incident to the Magistrate. On that date her mother went to the bazar after giving her food. She returned from school and was having food. Then Sushil dadu came to their house. He resides in their locality 6/7 house away from their house. He closed the door of the house and opened her dresses. He made her naked. He touched different parts of her body and touched her sex organ. She was feeling pain. He then got over the top of her body. He was bare bodied. Then her mother came and chased Sushil away. She made statement before the Magistrate. Her mother chased Sushil dadu with a slipper in her hand. She was substantially cross-examined from the side of the defence. In course of her cross-examination she has denied all the suggestions put to her saying that Sushil dadu did not visit their house on that date and he did not make her naked. She has denied the suggestion that Sushil dadu did not touch her whole body including her sex organ. In course of her cross-examination she has denied all the suggestions put to her saying that Sushil dadu did not visit their house on that date and he did not make her naked. She has denied the suggestion that Sushil dadu did not touch her whole body including her sex organ. A suggestion was put to her stating that Sushil dadu pulled her hand and as a result she sustained injury. 9. PROSECUTION witness No. 3 is the father of victim girl. He was declared hostile by the prosecution. In his cross-examination he told the medical officer that her daughter Puja sustained injuries falling on the ground. He has denied the entire incident in his cross-examination. P.W. No. 4 has stated in his evidence that there was trouble in the house of de facto complainant. He went there and found the police personnel present. He was told by the mother of Puja that Puja and Sushil Biswas were seen in naked condition inside the room by her. She chased Sushil Biswas. He was cross -examined from the side of the defence. P.W. No. 5 is Anjali Biswas. She has stated in her evidence that the incident took place during the day time and she came to know it from local people that Sushil Biswas raped Puja. She was declared hostile and cross-examined at length. 10. P.W. No. 6 is Kartick Das, a resident of Udaynagar. He has stated practically nothing. Like P.W.6, P.W. 7 has not stated anything. P.W. No. 8 is Sub-Inspector Biswanath Das who has stated that on 20.11.2006, he was posted at Jagaddal P.S. and on that date he received a written complaint from Laxmi Ganguly. He sent the same to the Inspector in-charge. He filled in the formal FIR. The formal FIR was marked as Ext. 6. He has also stated that on receipt of the written complaint he made an endorsement on the same and that endorsement has been marked as Ext. 5/1. He was cross-examined from the side of the accused person/appellant. P.W. No. 9 is the Judicial Magistrate who recorded the statement of victim girl Puja Ganguly on 21.11.2006. He has stated that victim was aged about six years and he tested her before recording her statement. He gave certificate on the recorded statement. The signature of the Magistrate has been marked as Ext. 1. 11. P.W. No. 10 is Ajit Sarkar. He has stated that victim was aged about six years and he tested her before recording her statement. He gave certificate on the recorded statement. The signature of the Magistrate has been marked as Ext. 1. 11. P.W. No. 10 is Ajit Sarkar. He has stated in his evidence that he wrote the written complaint as per instruction of Laxmi Ganguly. He read over and explained the same to her. The written complaint has been marked as Ext. 5. He was cross-examined from the side of the defence i.e. accused person. Prosecution witness No. 11 is Sub-inspector Lakshman Chandra Singh. He has stated in his evidence that he conducted investigation of Jagaddal P.S. Case No. 422 dated 20.11.2006. In course of investigation he drew sketch map of the place of occurrence with index. The sketch map and the index have been marked as Ext. 7 and Ext. 7/1. He examined the victim and- the available witnesses and recorded their statement. He sent the victim for recording her statement under Section 164 of Cr. P.C. He arrested the accused. The victim was medically examined on 20.11.2006 and 21.11.2006. He seized wearing apparel flangia and frock) of the victim. The accused was also medically examined on 20.11.2006. On completion of the investigation he submitted charge-sheet against accused Sushil Biswas. 12. HE has stated in his evidence that he examined Biswanath Ganguly, the father of victim Puja who had stated before him that accused Sushil made Puja naked and inserted his finger inside her vagina. HE also inserted her penis inside her vagina. HE stated before him i.e. Investigating Officer that he had seen accused Sushil when he was being chased by local people. HE has also stated before Investigating Officer that Puja sustained injury. HE was cross-examined from the side of the accused person. P.W. No. 12 is doctor Rabindra Mohan Saha. He has stated in his evidence that on 20.11.2006 he was posted at Bhatpara State General Hospital. He examined Puja Ganguly aged about six years in connection with Jagaddal P.S. Case No. 422 dated 20.11.2006. She was identified by Sub-inspector Lakshman Chandra Singh. He noticed injury mark when he examined her in presence of staff nurse. Her hymen was slightly congested and painful on touch. The medical report was written and signed by him and marked as Ext. 2. She was identified by Sub-inspector Lakshman Chandra Singh. He noticed injury mark when he examined her in presence of staff nurse. Her hymen was slightly congested and painful on touch. The medical report was written and signed by him and marked as Ext. 2. He has stated further that such type of injury on the hymen may occur due to rubbing the penis. He was cross-examined and in course of his examination he has stated that such injury may also occur on falling on a hard substance. P.W. No. 13 is doctor Subrata De. He has stated in his evidence that on 21.11.2006 he was posted at Bhatpara State General Hospital as medical officer and on that date Sub-Inspector L.C. Singh of Jagaddal P.S. produced Sushil Biswas before him for examination. He examined Sushil Biswas and on examination found that he was capable of sexual intercourse but ejaculation was not possible because of non-cooperation and anxiety. He wrote a report and signed on it and the report has been marked as Ext. 8 P.W. 14 is doctor Dipankar Sarkar. He has stated in his evidence that on 11.12.2006 he was posted at Forensic Medical College, Calcutta as Demonstrator and Sushil Kumar Biswas was produced before him by L.C. Singh. He examined him and found nothing that he was incapable of sexual intercourse. His report and his signature marked as Ext. 8/1. 13. VICTIM girl Puja Ganguly made a statement before learned Magistrate on 21.11.2006. Her statement was recorded by Judicial Magistrate, 4th Court, Barrackpore, North 24-Parganas. The victim girl has stated before learned Magistrate that she was six years old. The victim has stated before Magistrate that there was no one in the house. Her mother went to market. She and her elder brother was in the house. At that time dadu comes and asked as to whether her mother has gone. She and her elder brother came out from the house. Dadu slapped her elder brother and her elder brother left the place with ball. Sushil dadu took her inside the room and opened her pant. She tried to raise alarm but her mouth was pressed. At that time her mother arrived. Her mother assaulted dadu. She fell down and given oil and water. The statement has been marked as Ext.1. 14. EXT. 5 is the written complaint. It was submitted by Laxmi Ganguly mother of the victim girl. She tried to raise alarm but her mouth was pressed. At that time her mother arrived. Her mother assaulted dadu. She fell down and given oil and water. The statement has been marked as Ext.1. 14. EXT. 5 is the written complaint. It was submitted by Laxmi Ganguly mother of the victim girl. It was written by prosecution witness No. 10 Ajit Sarkar. It was received by Sub-inspector Biswanath Das on 20.11.2006 at 14.25 hours and started Jagaddal P.S. Case No. 422 of 2006 dated 20.11.2006 under Section 376(2)(f)/323 of IPC. EXT. 6 is the formal FIR. It was signed by Sub-insnector Biswanath Das. The incident alleged to have been happened on 20.11.2006 in the house of de facto complainant around 11 a.m. The FIR was submitted at the police station on that date around 14.25 hours i.e. 02.25 p.m. The distance of the police station from the house of the de facto complainant is 3 kms. Therefore, it is clear that within the shortest possible of time the FIR was submitted at the police station and on the basis of the FIR/written complaint Jagaddal P.S. Case No. 422 dated 20.11.2006 under Section 376(2)(f)/323 was started. It is seen from the evidence of the learned Judicial Magistrate, investigating officer and victim girl that victim girl was produced before the learned Magistrate on the next date of incident i.e. 21.11.2006 for recording her statement under Section 164 of Cr, P.C. The victim was examined by doctor on the date of incident i.e. on 20.11.2006 around 4.45 p.m. The father of the victim girl Biswanath Ganguly gave consent to the examination of her daughter by doctor. Therefore, no time was wasted for examination of the victim after the commission of the alleged offence. The victim has stated in her evidence that accused arrived at their house, closed the door, made her naked, touched her different parts of the body including sex organ and tried to commit rape on her. She has stated that her mother arrived in the midst of the offence at the instance of the accused. Her mother slapped him with slipper and chased him. She narrated the incident in details to her mother. She has stated that her mother arrived in the midst of the offence at the instance of the accused. Her mother slapped him with slipper and chased him. She narrated the incident in details to her mother. From the trends of cross-examination, it is clear that some suggestions were put to the witnesses which go to indicate that the accused was very much present in the house of the de facto complainant on the date and time of incident. It was taken in the evidence during cross-examination of prosecution witnesses that accused pulled the hand of the victim and as a result the victim fell on the ground thereby sustained injury. This evidence is suggesting clearly that the accused was there on the date and time of incident. It has come in evidence that accused/appellant Sushil Biswas is a close - neighbor of the de facto complainant. He resides in the same locality and there are seven houses in between his house and the house of the de facto complainant i.e. place of occurrence. It has also come in evidence that the accused is familiar to the de facto complainant, victim girl and their family members. It has been taken clear shape through evidence that on the date and time of incident the de facto complainant/mother was not present in the house. She had been to the market. The de facto complainant in her written statement/FIR has categorically stated about the incident in details. It was jotted down by prosecution witness No. 8. The content of the written complaint was read over and explained to the de facto complainant Laxmi Ganguly. The de facto complainant put her LTI on the written complaint. The content of the written complaint is matched with the evidence of the victim girl. The mother and father of the victim girl has tried to retract from their earlier statements. The father was declared as hostile witness. The investigating officer in course of his oral evidence has stated that the father of the victim girl has stated about the incident in details during his examination by him. Doctor Rabindra Mohan Saha has stated in his evidence categorically that he examined victim girl on 20.11.2006 and found that her hymen area is slightly congested and painful on touch. He has also stated that such type of injury on the hymen may occur due to rubbing the penis. Doctor Rabindra Mohan Saha has stated in his evidence categorically that he examined victim girl on 20.11.2006 and found that her hymen area is slightly congested and painful on touch. He has also stated that such type of injury on the hymen may occur due to rubbing the penis. There is specific evidence that accused/appellant was chased away by the de facto complainant on the date and time of incident from the house of the de facto complainant. The FIR specifically named the accused and there is no evidence on record to show that the de facto complainant and her family members had hostile relation with the accused/appellant. The accused/appellant was aged about 62 years at that time and the victim girl was simply six years old. There is nothing on record not even a suggestion to show that the accused/appellant was falsely implicated in this case. The evidence regarding commission of rape has not practically taken shape and that is why the learned Court below has passed the judgment and sentence after arriving at a finding that the accused was found guilty of an offence punishable under Section 376(2)(f) read with Section 511 of IPC. I do not find material discrepancy which tells upon the case at its roots to brush aside the evidence of victim girl and doctor. 15. THE FIR/written complaint if placed by the side of the evidence on record including the evidence of FIR makes, the writer of the written complaint/FIR and the victim girl then it gives us a specific light to show that the accused has committed the offence "attempt to rape". Therefore, the decisions reported in 2006(4) AICLR (SC) 646 and 2009 (1) AICLR (SC) 351 are not applicable in this case. THE evidence on record does not suffers from any doubt. It is neither suspicious evidence nor evidence of improbable in nature. As such, decision reported in 2007 (1) AICLR (SC) 44 is not applicable. This case is not based on the evidence of a solitary witness. It is based on the evidence of the victim girl, her statement recorded under Section 164, Cr. P.C. as well as evidence of doctor and others. This is a case where a child aged about six years was involved. In a case of rape or attempt to rape the evidence of the victim cannot be seen with suspicious. It is based on the evidence of the victim girl, her statement recorded under Section 164, Cr. P.C. as well as evidence of doctor and others. This is a case where a child aged about six years was involved. In a case of rape or attempt to rape the evidence of the victim cannot be seen with suspicious. Therefore, in my humble view the decision reported in 2007(3) AICLR (SC) 276 is not applicable in this case. Other decisions cited by the learned Counsel of the appellant are not applicable in this case which are different on its facts and circumstances. 16. THE Hon'ble Apex Court in a decision reported in AIR 1983 SC 753 (Bharwada Bhoginbhai Hirjibhai v. State of Gujarat) has observed :- "Corroboration is not the sine qua non for a conviction in a rape case, In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion- To do so is to justify the charge of male chauvinism in a male dominated society. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. If the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities factor' is found to be out of tune." The Hon'ble Supreme Court has further observed :- "Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:- (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas, it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by Counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the truthful and honest account of the occurrence witnessed by him- perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses." 17. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses." 17. THE Hon'ble Apex Court in a decision reported in (1996)2 SCC 384 : 1996 C Cr LR (SC) 50, State of Punjab v. Gurmit Singh and others has observed:- "THE testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of the victim, of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion- THE Court while appreciating the evidence or a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. THE evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplish to the crime but is a victim of another person's lust and it is improper and desirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or not concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. A rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the while personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. THE Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. THE Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. THE testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 18. THE Hon'ble Supreme Court in a decision reported in (1992)3 Supreme Court Cases 204 (Madan Gopal Kakkad v. Naval Dubey and another) has observed :- "A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. THE expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although not an expert may form its own judgment on those materials after giving due regard to the expert's opinion Because once the expert's opinion is accepted it is not the opinion of the medical officer but of the Court." In the case reported in AIR 1983 SC 753 the Hon'ble Apex Court has further observed:- "It appears that the parents of P.W.1 as well as parents of P.W.2 wanted to hush up the matter. Some unexpected developments however forced the issue. The residents of the locality somehow came to know about the incident. And as an alert woman social worker, P.W.5 Kundanben, President of the Manila Mandal in Sector 17, Gandhinagar, took up the cause. She felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter, who also happened to be friends of his daughter, taking advantage of their helplessness, when no one else was present. Having ascertained from P.W.1 and P.W.2 as to what had transpired, she felt that the appellant should atone for his infamous conduct. She therefore called on the appellant at his house. Having ascertained from P.W.1 and P.W.2 as to what had transpired, she felt that the appellant should atone for his infamous conduct. She therefore called on the appellant at his house. It appears that about 500 women of the locality had also gathered near the house of the appellant. Kundanben requested the appellant to apologize publicly in the presence of the woman who had assembled there. If the appellant had acceded to this request possibly the matter might have rested there and might not have come to the Court. The appellant, however, made it a prestige issue and refused to apologize. Thereupon the police was contacted and a complaint was lodged by P.W.1 on 19th September, 1975. P.W.1 was then sent to the Medical Officer for medical examination. The medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back. The Sessions Court as well as the High Court have accepted the evidence and concluded that the appellant was guilty of sexual misbehavious with P.W.1 and and P.W.2 in the manner alleged by the prosecution and established by the evidence of P.W.1 and P.W.2 . Their evidence has been considered to be worthy of acceptance. It is a pure finding of fact recorded by the Sessions Court and affirmed by the High Court. Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked , disregarded, or wrongly discarded . The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant." 19. THERE is nothing in evidence which may indicate that the victim was tutored and accused was falsely implicated in this case. The victim is a mere child of only six years. She is not expected to narrate the sequence of incident step by steps. She is tender in thought. She is no worldly wise to place an incident giving it colour to make it grave. Her evidence gives a natural flow to point out accused person, an aged man who subjected her with such offence which is sufficient to place a deep scar mark in her tender soft mind. The accused person has caused a serious psychological as well as physical harm on victim child in the process. He took advantage of the absence to the parents to violate a helpless flower life child. 20. HERE the evidence of the victim inspires confidence and is found to be reliable, therefore, seeking corroboration of her statement before relying upon the same as a rule is not warranted in the eye of law. There is nothing on record to view the evidence of victim and doctor with doubt, disbelieve and suspicion. There is nothing on record to suggest as to why a child of six years will depose/complaint of rape/attempt to rape against an elderly person aged about 62 years whom she calls 'dadu' by para-courtesy. Taking the facts and circumstances, evidence on record and banking on the aforenoted observation, I do find reason to arrive at a decision that this appeal has no merit. It is dismissed. 21. THE judgment and order of sentence passed i.e. accused/appellant to suffer R.I. for five years and to pay a fine of Rs. 2,000/- in default to suffer S.I. for two months more, by the Additional District and Sessions Judge do hereby affirmed. 22. SEND down the lower Court record forthwith.