Absence of medical report of victim would go in favour of rape accused: Calcutta High Court

Justice Bibek Chaudhuri held in the judgment that the victim had denied having herself medically examined and the same would go in favour of the accused.

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"If a girl of 13 years is violated by a grownup person like the accused, Subrata Pradhan, there must be marks of violence and injury on her private part. The said mark of injury would be visible at the time of medical examination of the victim. However, the victim denied having been examined medically. Thus, the absence of any report of medical examination of the victim would go in favour of the accused and he is entitled to get the benefit of the doubt." 

The Court set aside the conviction for the following reasons:

• The statement made in the FIR itself was in the nature of hearsay. In the FIR, it was alleged that the victim girl was kidnapped on her way to school. However, she stated on oath that the accused picked her up when she was returning home from school and took her somewhere by vehicle;

• The victim girl refused to get examined medically after she was produced before the medical officer. In her examination-in-chief, she stated on oath that she declined to get herself medically examined as there was no female doctor in the hospital. Assigning a reason for her refusal to get herself examined medically amounts to a material contradiction in the case;

• In her evidence, the victim girl stated that the accused had taken away her medical documents from her school bag. This was not stated by her before the investigating officer. This amounted to a material contradiction in view of the fact that the specific case of the accused is that the accused and the victim girl had developed a relationship and the accused helped the victim girl in her medical examination;

• The victim girl stated in her evidence that the accused brought her to the local police station. On the other hand, the investigating officer stated that he arrested the accused and the victim girl;

• The prosecution did not try to collect the birth certificate of the victim girl or the school leaving certificate or any other documents to prove that she was a minor. The prosecution also failed to place her before the medical board for ascertaining of her age. In the absence of such evidence, she cannot be held to be a minor and the charge under Section POCSO Act cannot stand.