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2017 DIGILAW 404 (CAL)

Manju Dutta v. State of West Bengal

2017-04-19

ASHA ARORA

body2017
JUDGMENT : 1. A girl of tender age was sexually abused by a depraved man in an incident which occurred on 2nd August, 1994 in the precinct of Bangur Institute of Neurology. 2. Keeping in mind the object of preventing social victimisation or ostracism of a victim of sexual offence for which section 228A of the Indian Penal Code has been enacted stating that the name of such a victim shall not be indicated in the judgment, I think it appropriate to refer to her as ‘the victim’. 3. This appeal is directed against the judgment and order dated 29th March, 1995 and 30th March, 1995 passed by the learned Additional Sessions Judge 9th Court Alipore in Sessions Trial No. 1(2) 1995 convicting the accused Subal Chandra Dutta for the offence punishable under section 376/511 of the IPC and sentencing him to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 250/- in default of which to suffer rigorous imprisonment for a further period of fifteen days for the aforesaid offence. 4. Bereft of unnecessary details, the case of the prosecution as narrated by the victim in her First Information Statement dated 2nd August, 1994 (exhibit 1/1) is as follows: On 2nd August, 1994 in the morning the victim, aged about 10 years went to Bangur hospital accompanied by her mother and grand-mother. The victim was sitting in the hospital with her grand mother while her mother went to get a ticket. At that time a dark complexioned man (identified as the accused) approached the victim and spoke to her affectionately where after he took her to a room nearby on the pretext of giving her cooked rice. The accused then asked the victim to lie down on the cot while he was preparing rice in a pot of boiling water. Thereafter the accused forcibly removed the victim’s pants as well as his own and started making contact of his male organ with her private part. He then started pushing his urinary organ into the victim’s rectum. When she tried to cry the accused pressed her mouth and threatened to beat her if she disclosed the incident to her mother. Thereafter the accused started wearing his pants and the victim ran out of the room. He then started pushing his urinary organ into the victim’s rectum. When she tried to cry the accused pressed her mouth and threatened to beat her if she disclosed the incident to her mother. Thereafter the accused started wearing his pants and the victim ran out of the room. She then narrated the incident to her mother in presence of her grand mother and complained of pain in her urinary organ. According to the victim the incident occurred at about 9.00/9.30 a.m. 5. The verbal statement of the victim was reduced into writing by S.I Amalesh Kumar Das (PW15) on the same date and on the basis thereof, Bhawanipur P.S Case No. 376 dated 2nd August, 1994 was registered under section 376 IPC against the accused Subal Chandra Dutta. After conclusion of investigation charge sheet was filed against the accused under section 376 IPC. The Trial Court framed the charge for the offence punishable under section 376 IPC against the accused. Being so arraigned, the accused pleaded not guilty to the indictment and claimed to be tried. 6. In the course of trial prosecution examined sixteen witnesses. PW1 is the victim. PW2 is the victim’s mother. PW3 is the aunt of PW2 who had accompanied the victim and her mother to Bangur hospital on the date of the incident. PW4 is the Ward Master attached to Bangur Institute of Neurology. PW5 is a Group D assistant attached to the said hospital. He is a formal witness in whose presence an attendance register of the hospital was seized by the police. PW6 Dr. Rabindra Basu was attached to NRS Medical College as Professor and Head of the Department of Forensic and State Medicine. He examined the victim on 2nd August, 1994. He also examined the accused on the following day. PW7 is a witness of seizure who testified regarding the seizure of a heater and a pot of boiled rice in his presence from a room in the outdoor department of Bangur Institute of Neurology. He also deposed regarding the seizure of a ‘jangia’ from the accused in his presence. PW8 is another seizure witness. PW9 was the Deputy Superintendent of SSKM Hospital Calcutta on the date of the incident. He identified the accused as a driver attached to Bangur Institute of Neurology which was under the same management as SSKM Hospital. He also deposed regarding the seizure of a ‘jangia’ from the accused in his presence. PW8 is another seizure witness. PW9 was the Deputy Superintendent of SSKM Hospital Calcutta on the date of the incident. He identified the accused as a driver attached to Bangur Institute of Neurology which was under the same management as SSKM Hospital. PW10 is a Group D Assistant of Bangur Hospital who was on duty in the out door department on the date of the incident. This witness was declared hostile by the prosecution. PW11 was attached to the aforesaid hospital as a Ward Master on the date of incident. He identified the attendance register of Bangur Institute of Neurology for the month of August 1994 which included the name of the accused Subal Dutta, a driver of the said hospital. PW12 is a constable cum photographer attached to the Detective Department, Lal Bazar. PW13 and PW14 were tendered by the prosecution for cross-examination. PW15 S.I Amalesh Kumar Das recorded the statement of the victim which was treated as the FIR (exhibit 1/1) and on the basis thereof, he registered the case against the accused. This Police Officer also investigated the case and submitted the charge sheet. PW16 is a constable-cum-plan maker attached to the detective department of Calcutta Police. As per direction of the Investigating Officer he visited the place of occurrence and prepared a rough sketch on the basis of which he prepared the final plan (exhibit 10). Besides the witnesses referred, prosecution brought on record several documents which were tendered in evidence. 7. Defence version is innocence, complete denial of the prosecution case and false implication of the accused due to dispute with the hospital staff. No evidence has been adduced in support of the defence plea. 8. After hearing the learned counsel for the parties and upon analysing the evidence on record, the learned trial Judge found the accused guilty of the offence punishable under section 376/511 IPC and accordingly convicted and sentenced him as aforesaid. 9. Aggrieved, the accused preferred this appeal. At this juncture it is significant to mention that during the pendency of the appeal the accused/appellant reportedly died on 23rd January, 2013. 9. Aggrieved, the accused preferred this appeal. At this juncture it is significant to mention that during the pendency of the appeal the accused/appellant reportedly died on 23rd January, 2013. On 19th February, 2015 the wife of the deceased appellant, his two sons and a daughter filed an application before this court for substitution (after setting aside the abatement of the appeal) along with an application under section 5 of the Limitation Act. Vide order dated 4th July, 2016 passed in CRAN 603 of 2015 and CRAN 604 of 2015 the delay in filing the application for substitution was condoned and the aforesaid petitioners were allowed to be substituted in place of the deceased appellant. 10. Assailing the impugned judgment and order of conviction on multifarious counts, Mr. Tewari, learned advocate appearing for the substituted appellants strenuously argued that the evidence of the victim girl is an embellished and improved version which cannot be relied upon. It has further been contended that there was no FIR of the incident as the case was initiated on the basis of the statement of the victim recorded by the police officer who held investigation. Learned counsel for the substituted appellants sought to impress that the investigation was biased and lackadaisical. There was no prayer for recording the statement of the victim under section 164 CrPC nor did the Investigating Officer make any prayer for T.I parade of the accused. The charge sheet was submitted within a short span of time without waiting for the FSL report which was received subsequently. The other contention raised on behalf of the appellants is that some of the vital witnesses were withheld so an adverse presumption may be drawn against the prosecution under section 114 illustration (g) of the Evidence Act. 11. I am not impressed with the argument that exhibit 1/1 (FIR) is a mere statement of the victim recorded by the Investigating Officer under section 161 CrPC which cannot be treated as the FIR. From the evidence of PW15 SI Amalesh Kumar Das it transpires that on the date of the incident while he was the duty officer of Bhawanipur PS and was proceeding towards PG dead house on the basis of an information regarding unnatural death of one Bula Das, a constable named Nihar Chakraborty intimated him that a disturbance was going on in the outdoor department of Bangur Institute of Neurology. Accordingly PW15 went to the first floor of the hospital accompanied by the Deputy Superintendent and the Ward Master where the female child (victim) and one driver Subal Dutta (accused) were identified to him. PW 15 then interrogated the accused as well as the victim, her mother Bharati (PW2) and Bharati’s aunt (PW3). Thereafter PW15 recorded the statement of the victim which was read over to her and she signed on it. PW15 affirmed in his cross-examination that he reduced into writing whatever was stated by the victim regarding the incident. The victim (PW1) and her mother (PW2) have also testified in their evidence regarding the aforesaid fact. It is further evident from the testimony of PW15 that the case was registered on the basis of the recorded statement of the victim. No suggestion was given to the victim or to her mother in cross-examination assailing the aforesaid First Information Statement (exhibit 1/1) or that no such statement was made by the victim nor was it suggested to PW15 in cross-examination that the statement was fabricated subsequently by him. On the contrary, it was suggested to PW2 and PW15 in cross-examination that the accused has been falsely implicated in this case. This suggestion does not indicate that the accused disputed the first information statement on the ground that it has been concocted by the Investigating Officer for the purpose of this case. This apart, there is no illegality in treating the statement of the victim as the FIR. 12. Equally untenable is the argument that the evidence of the victim is an improved version of the incident as narrated in the FIR. Needless it is to say that the FIR is not an encyclopedia of the entire case. It need not contain an exhaustive account of the incident. Exhibit 1/1 is the FIR which contains all the essential and relevant details of the incident. The fact that the victim gave a few more details in her testimony does not render her evidence doubtful on the ground that there is improvement or exaggeration. 13. There is also no merit in the submission that investigation was biased, perfunctory and lackadaisical. It has been well settled by a catena of decisions of the Apex Court that even if investigation is faulty or defective the rest of the evidence must be scrutinized independently of the impact of the flaws in the investigation. 13. There is also no merit in the submission that investigation was biased, perfunctory and lackadaisical. It has been well settled by a catena of decisions of the Apex Court that even if investigation is faulty or defective the rest of the evidence must be scrutinized independently of the impact of the flaws in the investigation. In the case at hand, the learned counsel for the substituted appellants could not persuade me to hold that there were lapses in investigation which render the prosecution case doubtful. The fact that there was no prayer for recording the statement of the victim under section 164 CrPC is a fault on the part of the Investigating Officer which cannot be a ground for disbelieving the prosecution case. The true test is whether the accused has been prejudiced due to faulty investigation and not the mere fault in the investigation. If the prosecution evidence is held to be true and the accused had a full say in the matter, conviction cannot be refused on the ground of irregularities or lapses in investigation. 14. The argument that the accused should have been placed in the T.I parade also does not hold good for the simple reason that the identity of the accused is not in doubt as is evident from the testimony of the victim who specifically and unequivocally identified him to her mother (PW2) at the earliest opportunity when immediately after the incident he was leaving the room (place of occurrence). PW2 has also testified regarding the aforesaid fact that her daughter pointed out to that man who was then coming out of his room. Significantly, PW3 also identified the accused as the man who took the victim to the room. PW9 the Deputy Superintendent of the said hospital also testified in his evidence that on the date of the incident at about 10.30 a.m the mother of the female child narrated the incident to him and on query by him that child pointed out and identified the accused. Nothing could be brought on record to show that the accused has been falsely implicated as an after thought. It is in the evidence of PW2 and PW3 that when PW2 raised cries, the accused was apprehended and assaulted by some people who were in the hospital. This fact finds corroboration in the evidence of PW4 and PW11. Nothing could be brought on record to show that the accused has been falsely implicated as an after thought. It is in the evidence of PW2 and PW3 that when PW2 raised cries, the accused was apprehended and assaulted by some people who were in the hospital. This fact finds corroboration in the evidence of PW4 and PW11. PW15 SI Amalesh Kumar Das stated in his evidence that the victim identified the accused against whom she made the statement on the date of the incident. The presence of the accused at the place of occurrence on the date and time of incident has not been disputed as is evident from the answers given the accused during his examination under section 313 CrPC. It is also not in dispute that the accused was a driver attached to Bangur Institute of Neurology at the relevant time. No suggestion was given in cross-examination to the victim or to any of the witnesses that someone else had committed the offence. Referring to the cross-examination of PW11 learned counsel for the appellants sought to impress that on the date of the incident there were two drivers in the hospital. I am afraid that the plea of mistaken identity has not been taken by the accused anywhere in course of cross-examination of the witnesses or during his examination under section 313 CrPC. The plea of false implication taken by the accused by way of suggestions given in cross-examination to PW1, PW2, PW3 and PW15 remained unsubstantiated. No motive could be attributed to any of these witnesses for bringing a false charge of sexual assault against the accused. Nothing could be brought on record by the accused to show that any of these witnesses had an axe to grind against him. 15. It is settled law that the evidence of a victim of sexual assault is entitled to great weight absence of corroboration notwithstanding. In the present case the victim is a child who, according to the FIR was 10 years old at the time of the incident. The victim’s mother (PW2) also gave out her age as 10 years. No suggestion was given to PW2 in cross-examination disputing the age of the victim. Needless it is to say that the evidence of a child witness can form the basis of conviction if the same is found to be credible and truthful. The victim’s mother (PW2) also gave out her age as 10 years. No suggestion was given to PW2 in cross-examination disputing the age of the victim. Needless it is to say that the evidence of a child witness can form the basis of conviction if the same is found to be credible and truthful. The testimony of a child witness can be relied upon if the court is satisfied that the child understands the questions put to her and is capable of giving rational answers. In the case at hand, the manner in which the child witness (PW1) narrated the incident in court testifies to her competency to depose. It is also evident from the answers given by PW1 in response to the cross-examination on behalf of the accused that she had sufficient understanding and adequate intellectual capacity to narrate the incident. The victim (PW1) recounted her ordeal coherently in her evidence in the following manner which is quoted hereunder: “The occurrence took place before the last Durga Puja. As I had pain in my head so I was taken to hospital by my mother and dida. I was seated beside my dida and my mother went elsewhere to collect photograph relating to my head. Then that man (identifies the accused) came to me and asked my name and address and I then told my name and address and thereafter that man asked me as to whether I take rice but I did not give any reply and then that man took me to his room To court - that room is at some distance from the place where I was seated with my dida. At that time I found that in his room water was boiling for preparation of rice. That man then asked me to sit on his bed. Then he after washing the rice poured rice into the boiling water and then opened my wearing pant and that man also opened his own pant and then he penetrated his male organ into my female organ and thereafter he also penetrated his male organ into my rectum and thereafter I found discharge of some whitish substance from his male organ. I was lying on his bed as stated before that man did all these things upon me. I had then pain in my female organ. I then cried but my mouth was closed by that man. I was lying on his bed as stated before that man did all these things upon me. I had then pain in my female organ. I then cried but my mouth was closed by that man. That man further told me not to disclose that matter to my mother. I then told him that I would not tell it to my mother. After discharge of whitish substance from his male organ that person actually wiped that substance with my pant. At that time my mother called me by my name and then I opened the door of that room and rushed to my mother and then told my mother that I would tell her one thing provided I was not beaten and when my mother assured me that she would not beat me I told my mother all these things.” The child witness (victim) withstood the test of extensive and incisive cross-examination. Being quizzed, the victim reiterated in her cross-examination that she cried when her pant was being removed by that man but he pressed her mouth with his hand. The victim was repeatedly questioned regarding the incident but no dent could be made in her testimony which remained unscathed in cross-examination. Nothing could be elicited in the cross-examination of the victim to demolish her evidence or to render the same as incredible or untrustworthy. Regarding the contradictions and inconsistencies in the evidence of PW1 as pointed out by the learned counsel for the substituted appellants, it has been expressed by the Apex Court in a plethora of decisions that as long as the core of the evidence has a ring of truth, courts should ignore minor discrepancies in the evidence. In the present case the victim is a child who is not expected to possess a photographic memory of the sordid incident which must have unnerved her. It would therefore be unreasonable to label such a witness as untrustworthy on the ground of minor contradictions in her evidence. In the decision reported in (2013)12 Supreme Court Cases 796 in the case of Mritunjoy Biswas Versus Pranab alias Kuti Biswas and Another referred on behalf of the appellants, the Apex Court observed that it is well settled in law that minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether it inspires confidence in the mind of the Court. If an omission or discrepancy goes to the root of the matter the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. In the case at hand the discrepancies and inconsistencies pointed out in the evidence are trivial in nature which do not affect the core and substratum of the prosecution case. For the reasons aforesaid, reference to the decision reported in (2013)12 Supreme Court Cases 796 (Supra) is of no help to the appellants. 16. Placing reliance upon the case of K. Venkateshwarlu Versus State of Andhra Pradesh reported in (2012)8 Supreme Court Cases 73 learned counsel for the appellants sought to impress that the evidence of the victim who is a child witness is not worthy of credence. In the decision referred it has been observed by the Supreme Court that the evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. In the aforesaid case the Supreme Court expressed as follows in the relevant paragraph 11 of the judgment which is reproduced hereunder: “11. Having perused the evidence of all the witnesses, we find it difficult to rely on them. We feel that the trial court had rightly discarded their evidence as unworthy of reliance and the High Court erred in taking it into consideration. This, in our opinion, is a case where neither the evidence of the parents of the victim PW 2 Aruna nor the evidence of PW 2 Aruna, nor the evidence of the child witnesses, who claim to have witnessed the incident, nor the medical evidence supports the prosecution case. Besides, all the pancha witnesses have turned hostile, a fact which we have noted with some anguish. A needle of suspicion does point out to the appellant because he is a police constable and in a small village where the incident took place, witnesses may be scared to depose against him because of his clout. There are certain circumstances which do raise suspicion about the appellant’s involvement in the crime. A needle of suspicion does point out to the appellant because he is a police constable and in a small village where the incident took place, witnesses may be scared to depose against him because of his clout. There are certain circumstances which do raise suspicion about the appellant’s involvement in the crime. The children were playing on the terrace of the appellant. The appellant was not arrested by the police till 4-9-1998. The demeanor of PW 2 Aruna, the tears in her eyes, her walking out of the court after looking at the appellant, pricks the judicial conscience. But convictions cannot be based on suspicion, conjectures and surmises. We are unable to come to a conclusion that the trial court’s judgment is perverse. For want of legal evidence we will have to set aside the appellant’s conviction and sentence. But we make it clear that we are doing so only by giving him benefit of doubt.” It is evident that the decision referred (supra) is clearly distinguishable on facts from the case at hand wherein the victim (PW1) narrated the incident coherently, unequivocally and convincingly. Nothing could be elicited in her cross-examination to disbelieve her evidence. I could not be persuaded to believe that the evidence of the child victim was a tutored impact given under threat, coercion or inducement. No plausible motive could be assigned to PW1, PW2 and PW3 for falsely implicating the accused in this case. Nothing could be brought on record by accused to show that there was any animus between him and the victim’s mother. It was in vain suggested in cross-examination to the victim’s mother (PW2) and PW3 the mother’s aunt that they have falsely implicated the accused at the instigation of the hospital staff due to dispute between them. But no iota of evidence could be led by the accused in support of this plea. Curiously enough, even during his examination under section 313 CrPC accused made no such statement that there was dispute between him and the hospital staff who had instigated the mother of the victim to foist a false case against him. Above all, it is incredible and improbable that the parents and relatives of a girl of tender age would bring dishonour to their family and put their reputation at stake by inventing a false charge of sexual assault against a person at the instigation of someone. Above all, it is incredible and improbable that the parents and relatives of a girl of tender age would bring dishonour to their family and put their reputation at stake by inventing a false charge of sexual assault against a person at the instigation of someone. This apart, the plea of false implication is completely ruled out in view of the fact that the medical evidence of PW6 Dr. Rabindra Basu as well as the report of FSL and the serologist support the prosecution version. In this context it is significant to mention that the parents and relatives of a victim would certainly not bring a false charge of sexual assault against an innocent person to protect the real culprit. 17. I am also unable to accept the argument on behalf of the appellants that the post occurrence behaviour of the victim (PW1) was unnatural which is a ground to disbelieve her evidence. Emphasis was laid on the fact that the victim did not appear to be traumatised or shocked. Her behavior post occurrence was normal. In this context reference to the case of Shivasharanappa and Others Versus State of Karnataka reported in (2013)5 Supreme Court Cases 705 is of no assistance to the appellants. There is no legal principle of universal application as to how a person will react in a given situation. The same set of reaction cannot be expected from different people. In the aforesaid decision, while dealing with the behaviour of witnesses, in paragraph 22 of the judgment the Supreme Court observed as follows: “22. Thus, the behaviour of the witnesses or their reactions would differ from situation to situation and individual to individual. Expectation of uniformity in the reaction of witnesses would be unrealistic but the court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction, whether in the circumstances of the case, the behaviour is acceptably natural allowing the variations. If the behaviour is absolutely unnatural, the testimony of the witness may not deserve credence and acceptance.” In the case at hand it cannot be said by any stretch of imagination that the behaviour of the victim was absolutely unnatural. On the contrary, a child of 10 years behaved quite naturally by narrating the incident to her mother immediately after the incident. On the contrary, a child of 10 years behaved quite naturally by narrating the incident to her mother immediately after the incident. In the case of Rana Partap Versus State of Haryana reported in (1983)3 Supreme Court Cases 327 the Apex Court expressed that to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate the evidence in a wholly unrealistic and unimaginative way. 18. The victim (PW1) testified in her evidence that when her mother called her by her name she rushed to her after opening the door of the room and narrated the incident to her mother. The victim’s dida (PW3) was then seated on the bench at the relevant time. The victim further stated that the man (accused) was then leaving that place after locking his room. Significantly, it has been elicited in the cross-examination of PW1 that the room where she was taken by that man was near the place where she was seated with her dida. PW10 a Group D assistant of Bangur Hospital deposed regarding the aforesaid fact by stating that the rest room of the drivers is situated at a distance of about 6 to 7 cubits from the ticket counter but the inside of the room is not visible from the counter. The testimony of the victim finds complete corroboration in the evidence of PW2 and PW3 who, being informed by the victim narrated the incident in the same manner as PW1. PW2 stated in her evidence that her daughter pointed out to that man who was then coming out of his room after locking the door. PW3 corroborated the version of the victim by stating that in her presence she (victim) narrated the incident to her mother and at that time the accused was leaving his room after locking the door. It is pertinent to mention that no material contradiction could be pointed out in the evidence of PW2 and PW3 in relation to their statement under section 161 CrPC. In fact nothing could be elicited in the cross-examination of these two witnesses to render their evidence untrustworthy. 19. The evidence of sexual assault upon the victim is corroborated by the medical evidence of PW6 Dr. Rabindra Basu who medically examined the victim on the date of the incident at 6.30 PM. In fact nothing could be elicited in the cross-examination of these two witnesses to render their evidence untrustworthy. 19. The evidence of sexual assault upon the victim is corroborated by the medical evidence of PW6 Dr. Rabindra Basu who medically examined the victim on the date of the incident at 6.30 PM. According to PW6 the victim complained of pain in her private parts. On examination whitish mucoid substance was seen in the vestibule-specially at the upper part. Though PW6 could not opine whether the aforesaid substance was semen, the report of the Serologist and the FSL report (exhibits 6 and 8) relating to examination of the victim’s seized ‘jangia’ prove that the whitish substance was human semen. At this juncture it is significant to mention that the victim’s evidence that there was discharge of whitish substance from the male organ which was wiped with her pant has been corroborated by exhibits 6 and 8. This fact also finds place in the FIR (exhibit 1/1). Reverting to the medical evidence of PW6 Dr. Rabindra Basu, on examination of the victim he noted the following injuries: “(1) one bruise, reddish in colour over the vestibule just right lateral, to vaginal orifice 5” X 4” at 8’ O clock position, (2) one bruise reddish in colour 3” X .2” over left side of the vestibule just outside the vaginal opening at 2’ O clock position, (3) gross congestion around the vaginal orifice with tenderness (+ + +)." PW6 opined that the genital signs as noted were strongly suggestive of attempted forcible sexual intercourse, PW6 elucidated in his evidence that when full penetration was not done but an attempt was made with force then some injuries may be noted around the vaginal orifice and that is why he noted in his report ‘attempted forcible sexual intercourse’. In response to the court’s query PW6 clarified that full sexual intercourse does not necessarily imply full penetration. PW6 opined unequivocally that the injuries detected on the private part of the victim are possible from the penis of the size and the kind which he found while he examined accused Subal Dutta. It is pertinent to mention that PW6 had examined the accused on the following day that is, on 3rd August, 1994 and found him to be capable of sexual intercourse. It is pertinent to mention that PW6 had examined the accused on the following day that is, on 3rd August, 1994 and found him to be capable of sexual intercourse. It is clear from the foregoing discussion that the medical evidence of PW6 is in conformity with the prosecution case. 20. These is no merit in the argument that the detection of human semen on the seized ‘jangia’ of the victim as per exhibits 6 and 8 is not sufficient to connect the accused with the offence since the semen group could not be determined by the Serologist. This is a relevant piece of evidence to be considered along with the other incriminating evidence which is available in abundance against the accused. It is worthwhile to mention that in her statement (exhibit 1/1) recorded within a few hours of the incident the victim spoke about the discharge of whitish substance from the male organ of the accused which he wiped with her pant. Even in her evidence she (PW1) testified regarding the aforesaid fact which finds support from the medical evidence of PW6 as well as from exhibits 6 and 8. 21. The factum of seizure of a heater with coil and a pot (‘handi) containing cooked rice from the driver’s room in the hospital vide seizure list dated 2nd August, 1994 (exhibit 4) lends tremendous credence to the prosecution case. In the FIR (exhibit 1/1) as well as in her evidence as PW1 the victim stated that the accused was preparing rice in a pot in the room in which he took her. The Investigating Officer (PW15) testified regarding the seizure by stating in his evidence that on the date of the incident he visited the place of occurrence as pointed out by the victim and found that it is a small room wherefrom he seized one pot for cooking rice and a heater with coil. In his examination under section 313 CrPC the accused did not deny the seizure of the aforesaid articles from his room on the date of the incident. In his examination under section 313 CrPC the accused did not deny the seizure of the aforesaid articles from his room on the date of the incident. The existence of a cot in the aforesaid room (place of occurrence) as testified by PW1 in her evidence and as stated by her in the FIR finds corroboration in the evidence of PW12 a constable-cum-photographer attached to the Detective Department, Lal Bazar who took photographs of the room as well as the bed in the said room. 22. Another piece of incriminating evidence which connects the accused with the offence is the fact that immediately after the incident he was trying to flee away. Though this circumstance in isolation cannot form the fulcrum of a guilty mind, it is a relevant piece of evidence to be considered along with the other evidence herein above discussed. It transpires from the evidence of PW1, PW2 and PW3 that the accused was trying to leave the room by locking its door when he was confronted by PW2 who stated that initially the accused denied having done anything to the victim but when pressed by PW2 the accused begged apology. Hearing the cries of PW2 some people came and apprehended the accused who was assaulted by them. PW4 and PW11 have corroborated the factum of assault upon the accused. The medical evidence of PW6 Dr. Rabindra Basu who examined the accused and found injuries on his person support the prosecution version. In response to question no. 2 during his examination under section 313 CrPC accused admitted the fact that he was leaving the room after locking it but took the plea that on hearing a GDA call he was just getting out of his room and was locking it when 5/6 boys came and called where after they assaulted him and took him to the room of N.K. Bhattacharjee. According to the accused, PW2 brought those 5/6 boys in whose favour he could not issue tickets for C.T. Scan as they had no reference. Evidently the accused took recourse to a futile plea of desperation which could not be substantiated by any evidence. 23. According to the accused, PW2 brought those 5/6 boys in whose favour he could not issue tickets for C.T. Scan as they had no reference. Evidently the accused took recourse to a futile plea of desperation which could not be substantiated by any evidence. 23. I am also unable to accept the contention that prosecution case becomes doubtful due to non-seizure of the lock and key of the room of the accused and the fact that the existence of the bench on which the victim and her dida were seated has not been shown in the sketch map. In his examination under section 313 CrPC, accused admitted in response to question no. 2 (herein before referred) that he was leaving the room after locking the door. In view of such admission by the accused non seizure of the lock is of no consequence. The evidence of PW1 and PW3 that they were seated on a bench near the ticket counter has not been challenged in cross-examination. No suggestion was given to these two witnesses in cross-examination denying the existence of the bench. There is therefore no substance in the aforesaid submission on behalf of the appellants. This apart, on the face of cogent, credible and unimpeachable evidence herein above discussed the contention raised on behalf of the appellants does not affect the prosecution case. 24. As regards non examination of Dr. Manoj Bhattacherjee, staff nurse Ratna Bhattacherjee, local witnesses Sailen Dutta and Banamali Garai, I am of the view that on this count prosecution case is not even remotely affected. Being quizzed in this regard, the Investigating Officer stated in his cross-examination that the aforesaid persons were not cited as witness since he did not get any positive statement from them. There is no provision of law which necessitates examination of all the witnesses by the prosecution. If prosecution does not examine a witness it is always open to the accused to cite and examine him as a defence witness. Learned counsel for the appellants could not show how the accused has been prejudiced due to non examination of the aforesaid witnesses. Reference to the case of Tomaso Bruno and another Versus State of Uttar Pradesh reported in (2015)7 Supreme Court Cases 178 finds no application to the case at hand being distinguishable on facts. Learned counsel for the appellants could not show how the accused has been prejudiced due to non examination of the aforesaid witnesses. Reference to the case of Tomaso Bruno and another Versus State of Uttar Pradesh reported in (2015)7 Supreme Court Cases 178 finds no application to the case at hand being distinguishable on facts. In Tomaso Bruno’s case (Supra) it was observed that the CCTV footage would have been the best evidence in the circumstances of the case to prove whether the accused remained inside the hotel room and whether they were responsible for the commission of the crime. Failure to produce the CCTV footage raised serious doubt in the prosecution case and in the circumstances the Court was of the view that it was a fit case to draw an adverse inference against the prosecution under section 114 illustration (g) of the Evidence Act. In our case at hand the witnesses who were not examined certainly do not fall within the category of best evidence which in my view is already on record. Therefore the question of drawing an adverse presumption against the prosecution does not arise. The cumulative effect of the evidence discussed leads to the only inevitable conclusion that it was none else but the accused who had committed the offence. 25. Lastly Mr. Tewari urged that a sympathetic view may be taken to enable the substituted appellants to get the death benefits of the deceased appellant. Considering the nature of the offence, the circumstances of its commission as well as the helpless and pitiable plight of the child victim who suffered ignominy in the hands of the offender, I am of the firm view that it would be a travesty of justice to show sympathy in such a case. 26. In the ultimate analysis, I am unhesitant in concluding that the appellants failed to make out any case for interference with the impugned judgment and order of conviction and sentence passed by the trial court. 27. Consequently the appeal is dismissed. 28. Lower court records along with a copy of this judgment be sent forthwith to the trial court. 29. Urgent Photostat certified copy of this judgment if applied for, shall be made available to the parties upon compliance of requisite formalities.