STATE ANDAMAN AND NICOBAR ADMN Vs. SHYAM RAJ

JUDGEMENT

(1.) Andaman and Nicobar Administration is in appeal before us against the judgment of the High Court of Calcutta dated 19-6-1995 whereby the High Court allowed the appeal filed by the respondent herein and set aside the judgment and conviction of the Sessions Judge, Andaman and Nicobar Islands in Sessions Case No. 22 of 1991 by which judgment the learned trial Judge convicted the respondent for offences punishable under Sections 363 and 376(2)(b) of the I. P. C., and sentenced him to undergo RI for 10 years with a fine of Rs. 2,000 for the principal offence.

(2.) Brief facts necessary for the disposal of this appeal are as follows: The prosecution alleges that on 21-1-1989 at about 7.30 p.m. the respondent committed rape on PW-19 who at that time was aged about 31/2 years. It is the case of the prosecution that on 21-1-1989 in the evening parents of the victim i.e. PW-3 and PW-9 had left the child in the custody of PW-1 while they had gone to their place of work. During the said time PW-1 with other members of family left the child in her own house and went to the house of PW-9 to watch a television programme and it is during their absence it is alleged that the respondent committed the offence on the child. Though according to the prosecution the child who was examined during the trial as PW-19 had immediately after the incident in question narrated the incident to PWs 1, 4 and 9, when she was examined in the Court she was unable to recollect what actually transpired at the time of the incident in question. But accepting the prosecution case on circumstantial evidence the trial Court convicted the respondent herein for the offence as stated above.

(3.) An appeal filed by the respondent before the High Court came to be allowed, setting aside the conviction imposed on the respondent. The High Court came to the conclusion that the case being one based on circumstantial evidence, the prosecution had not established all the material circumstances based on which the conviction can be imposed on the respondent. It also noticed the fact that the evidence of PW-1 if scrutinised carefully would indicate that she was trying to protect her brother who could also have been a suspect. In such circumstances, the High Court was of the opinion that it is not safe to base the conviction in the absence of any evidence from the victim herself.