LexUTPAL DAS & ANR. versus STATE OF WEST BENGAL
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[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 ' I prosecution witness. In the present case it was for the 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
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