IN THE HIGH COURT OF CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Debangsu Basak

And

The Hon’ble Justice Md. Shabbar Rashidi

CRA (DB) 156 of 2023

With

CRAN 2 of 2025

Pankaj Kumar

Vs.

The State of West Bengal & Anr.

With

CRA (DB) 136 of 2023

Balak Ram Yadav

Vs.

The State of West Bengal & Anr.

With

CRA (DB) 62 of 2023

Manjrish alias Monjrish Tripathi

Vs.

The State of West Bengal & Anr.

For the Amicus Curiae : Mr. Arpan Saha, Adv.

In CRA(DB) 136 of 2023 and

CRA(DB) 62 of 2023

For the Appellant : Mr. Arnab Chatterjee, Adv.

In CRA (DB) 136 of 2023 Mr. Raushan Kumar Ray, Adv.

Mr. Avik Ghosh, Adv.

Mr. Tarun Kumar Poddar, Adv.

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For the State : Mr. Debasish Roy, Ld. P.P.

Ms. Amita Gaur, Sr. Govt. Adv.

Mr. Sourath Nandy, Adv.

Hearing concluded on : 03.02.2026

Judgment on : 12.03.2026

MD. SHABBAR RASHIDI, J.:-

1. The three appeals are taken up together for consideration as

these have emanated out of a common impugned judgment of

conviction dated February 24, 2023 and order sentence dated

February 27, 2023 passed by learned Judge, Special (POCSO) Court,

Howrah, in Special T.R. No 18 of 2016 arising out of Howrah GRPS

Case No. 187 of 2015.

2. By the impugned judgment, the appellants Balak Ram Yadav

and Pankaj Kumar were convicted of the offence punishable under

Section 6 of the Prevention of Children from Sexual Offences Act, 2012

whereas, the appellant Manjrish @ Monjrish Tripathi was convicted of

the offence punishable under Section 6/17 of the said Act. By the

impugned order, the appellant Manjrish @ Monjrish Tripathi was

sentenced to suffer Rigorous Imprisonment of 10 years together with a

fine of ₹50,000/- for the offence under Section 6/17 of the Act of

2012. In default of payment of fine, the said appellant was directed to

undergo Rigorous Imprisonment for a further period of 1 year.

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3. The other two appellants namely, Balak Ram Yadav and

Pankaj Kumar were sentenced to undergo life imprisonment with fine

of ₹1,00,000/- each, for committing the offence punishable under

Section 6 of the Prevention of Children from Sexual Offences Act, 2012

and in default of payment of fine, they were directed to suffer Rigorous

Imprisonment for a further period of 2 years each.

4. It was argued on behalf of the appellants that the impugned

judgment and order was passed by learned trial Court without proper

appreciation of evidence and for such reason the impugned conviction

and sentence of the appellants is liable to be set aside.

5. It was contended that the victim was recovered from the train

in an unconscious condition and at that time one of the appellants i.e.

Manjarish @ Monjrish Tripathi was detained from the self-same

compartment of the train. However, the prosecution was not able to

establish the circumstances under which the other two appellants

were implicated in the case. According to such appellants, the victim

never identified them as perpetrators. CCTV footage was also not

collected until then. In fact, the prosecution did not produce any

evidence with regard to involvement of the two appellants in the

alleged incident.

6. The learned advocate appearing for the appellants also

submitted that two consecutive Test Identification Parades were

conducted and on the first day, the victim could identify only one of

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the appellants. Subsequently, on the second Test Identification

Parade, both the appellants Balak Ram Yadav and Pankaj Kumar were

identified. It was submitted that the prosecution withheld the first

Test Identification Parade report at the trial. It was also contended

that the learned trial Court overlooked the evidence of PW13 in so far

as it disclosed that the suspect had told him before the TIP that he

was produced before Court a couple of times when the victim was also

present. The victim’s evidence also disclosed that when the said

appellants were apprehended, she visited Howrah GRPS and had the

occasion to see the appellants. Such evidence, made the identification

of the appellants in the Test Identification Parade highly doubtful. In

support of his contention, learned advocate for the appellant placed

reliance upon (2023) 1 Supreme Court Cases 180 (Gireesan Nair

Vs. State of Kerala).

7. Learned advocate for the appellants also contended that the

prosecution proved a seizure list i.e. Exhibit 31 with regard to seizure

of a register maintained by AIR courier service. The said register was

produced at the trial and was marked with ‘x’ for identification.

However, there was no endeavour on the part of the prosecution to

prove such register at the trial to look into its contents which rendered

the case of the prosecution doubtful.

8. Learned advocate for the appellants further submitted that

the prosecution has not been able to produce any document at the

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trial to establish that the appellant Balak Ram Yadav was on leave on

the relevant date and was travelling in the train in which the incident

is alleged to have happened. No document regarding leave or travel of

the said appellant, issued by his employer department has been

proved at the trial.

9. Learned advocate for the appellant also argued that the

learned trial Court failed to appreciate that in her first statement

before Madhupur GRPS, the victim never made an explicit allegation of

sexual assault upon her. It was contended that the case of sexual

violation was incorporated later with a view to cover up the voluntary

disappearance of the victim from her house. According to learned

advocate for the appellant, the learned trial Court overlooked the

evidence that the victim had Facebook friendship with a stranger

which was not known to her parents and that she met such friend

prior to the incident. Learned advocate for the appellant also raised

doubts over the time of uploading pictures on the Facebook account of

victim vis-à-vis the time of incident.

10. Learned advocate for the appellants also contended that the

learned trial Judge failed to appreciate that there were material

contradictions in the testimony of the victim in relation to her going

unconscious and her rescue by Madhupur GRPS in an unconscious

state. Learned advocate for the appellants submitted that the

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prosecution failed to establish the charges levelled against the

appellants.

11. On the other hand, learned advocate for the State submitted

that the prosecution has proved the charges beyond all reasonable

doubts. The chain of circumstances were persuasively established by

the prosecution with the help of cogent and overwhelming evidence

which leaves no scope for any proposition except pointing to the guilt

of the appellants. Learned advocate for the State stood by the

impugned judgment and order.

12. The victim, a class IX student, boarded Howrah-Amritsar

Express from Howrah station at about 1.55 a.m. on December 27,

2015. Due to her ignorance, she boarded in a compartment of the

train, reserved for military. 10-15 minutes of the departure of the

train, three persons including the person who was detained for

interrogation, started chatting with the victim. They also asked the

victim if she would drink which she replied in the negative. Thereafter,

one of them brought out a wine bottle from his bag. The other person

mixed water in such wine in an empty bottle and thereafter, the victim

was forcefully made to drink wine. The statement of the victim also

disclosed that after consuming wine, she went to washroom to meet

nature’s call. When she was coming out of the washroom, one of the

persons, pushed the victim inside, abused her and disrobed her and

committed nasty work while pressing her mouth. Thereafter, the

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second man came in and committed nasty work upon her. Both of

them took turns and committed the nasty work four times. After

committing the crime the miscreants brought the victim out of the

bathroom and laid her on a seat of the train. The miscreants also

threatened the victim not to disclose the incident or she would be

thrown out of the train. After sometimes, the train stopped somewhere

when the victim was deboarded and her statement was recorded.

13. Such statement also said that the incident started after 10-15

minutes of the departure of the train from Howrah station and

happened between 1.55 p.m. and 2.45 p.m. She further stated that

the person who was detained for interrogation disclosed his name as

Manjrish Tripathi. The victim identified her as the person who forced

her to consume liquor.

14. On the basis of such statement of the victim, Madhupur Rail

PS Case No. 00 of 2015 dated December 28, 2015 under Sections

376(2)(g)/376D/120B of the Indian Penal Code, 1860 and Sections

4/8 of the Protection of Children from Sexual Offences Act, 2012 was

started against three unknown miscreants.

15. The police took up investigation and on completion thereof,

submitted charge sheet in the case. Offence being exclusively triable

by the Court of Sessions, the case was committed to the Court of

learned Sessions Judge. On the basis of materials in the case diary,

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charge under Section 6 of the POCSO Act was framed against the

appellants on April 8, 2016.

16. In order to substantiate the charge, the prosecution examined

as many as 18 ocular witnesses. In addition, the prosecution also

relied upon certain documentary as well as material evidence which

were produced at the trial and were admitted in evidence.

17. The victim herself deposed as PW 1. She has stated that on

December 27, 2015, at about 11/12 noon she came to Howrah station

and intended to go to Ludhiana. She further stated that she boarded

Howrah Amritsar express in an Army compartment due to rush in

other compartments. There were only three persons in such a

compartment. When she took seat in the compartment, the three

persons came to her and started talking to her. The conversation

continued for about 15 minutes. While the train was passing

Sreerampore station, PW 1 was asked whether she take drinks which

she answered in the negative. PW1 further stated that two of the

persons held her by hands and the third person poured drink into her

mouth from a red colour bottle. She identified the appellant Pankaj

Kumar and Balak Ram Yadav in Court as the persons who held her.

She also identified the appellant Manjrish Tripathi as the person who

poured drink into her mouth.

18. PW1 also stated that when she tried to raise alarm, she was

threatened by all the appellants that they were Army personnel and

9

they could do anything and everything to her. After that, PW1 went to

washroom. When she was inside the washroom someone kicked on

the door. When she opened the door, the appellant Pankaj Kumar

pushed her and entered into the washroom causing injury on her left

ring finger. Thereafter, the said appellant undressed PW1 and

committed sexual intercourse upon her. After him, another appellant

Balak Ram Yadav entered into the washroom and committed sexual

intercourse upon PW1. They took turns and committed sexual

intercourse upon PW1 for about 6 times. PW1 went semi-unconscious

and when she regained senses, she found police personnel in the train

compartment. She was taken to police station and at that time,

appellant Manjarish Tripathi was also present. He was also nabbed by

police from the said compartment.

19. PW1 also stated that later on, she came to know that she was

deboarded from the train at Madhupur railway station. She recorded

her statement in Hindi in presence of a lady constable of police. Her

statement was recorded and after going through the same, she put her

signature thereon. She proved her signature of such statement.

(Exhibit 1/1). She was also medically examined in a hospital at

Deoghar after obtaining her consent. She proved her signature on the

consent letter (Exhibit 2). Thereafter, PW1 was taken back to Howrah

statin on December 29, 2015. At Howrah, PW1 was again taken to

police station where her statement was again recorded. She was also

10

taken to Howrah hospital where she was medically examined, upon

obtaining her consent which she proved (Exhibit 3). PW1 also recorded

her statement before the Magistrate. She proved her signatures on

such statement (Exhibit 4 series). She also proved her signature on

the seizure lists under which her vaginal swab and a sweater were

seized (Exhibits 5 & 6). She was again medically examined at Howrah

hospital on January 6, 2016. PW 1 also attended Test Identification

Parades conducted in the Howrah Jail and identified appellant Balak

Ram Yadav on the first day and appellant Pankaj Kumar on the

second day of test identification parade. She also proved her signature

on the seizure list under which her wearing apparel she wore at the

time of incident, were seized (Exhibit 7).

20. PW1 was extensively cross examined on behalf of the

appellants on various aspects including her Facebook account, her

friends and also touching her chastity. In her cross examination, PW1

admitted that when the appellants were apprehended, she visited the

police station with her parents and had an occasion to see them. She

however, denied that she identified the appellants in test identification

parade as she had seen them in the police station.

21. The father of the victim deposed as PW 2. He stated that on

December 25, 2015 there was an altercation between the victim and

her mother and the victim left the house over such altercation. When

she did not return, PW 2 and others started searching for her.

11

However, no information could be received until the morning of

December 26, 2015. On December 27, 2015 the victim again left her

house at about 10 am/11 am in absence of PW 2. When she did not

return until afternoon, PW 2 started looking for her. He managed the

credentials of the Facebook account of the victim from where PW 2

came to know that she had left a message on her Facebook that she

was proceeding towards Punjab. PW 2 immediately rang up over Child

Line when he was advised to go to Howrah Station. He went there and

provided the photographs of the victim to the representatives of Child

Line. On the advice of the Child Line, PW 2 lodged a complaint with

the police. PW 2 further stated that on the date of lodging the written

complaint, he received phone call at about 8/8:30 pm from Madhupur

GRPS that his daughter was traced out. On the following morning, PW

2 along with his wife and son went to Madhupur GRPS and came to

know about the incident from one Assistant Commissioner of Police of

Madhupur GRPS. He was informed that the victim was taken to

hospital for her medical examination which was at a distance.

Thereafter, PW 2 returned to Kolkata upon assurance by police that

the victim would be taken to Howrah Station by train and would be

handed over to his custody on the following morning. Later on, in the

following morning, PW 2 received a call from police personnel. He

immediately went to Howrah station accompanied by his brother-in-

law. Upon reaching Howrah, his daughter was medically examined

12

and, thereafter, she was handed over to PW 2. PW 2 was also cross-

examined on behalf of the appellants at length. However, nothing

favourable appears to have been elucidated in such cross-

examination.

22. The mother of the victim was examined as PW 3. She

corroborated the statements made by PW 2. She stated that her

daughter went away from her house. From the Facebook account of

the victim, she came to know that the victim was travelling by

Amritsar Express to reach to one of her friends of Ludhiana. She

further stated that the matter was brought to the notice of Child Line.

Later on, the victim was recovered at Madhupur Station. The victim

was medically examined at Madhupur as well as Howrah and

subsequently, she was given into the custody of PW 3. PW 3 also

signed on a seizure list through which the vaginal swab of the victim

was seized. She proved her signature.

23. A Sub-Inspector of Police was examined as PW 4. He stated

that on December 27, 2015 he was posted at Madhupur Police Station

as Officer-in-Charge of GRPS. On the said date, he received a

WhatsApp message from Child Line, Deoghar to rescue the victim from

Punjab Mail. Upon receiving such information, PW 4 formed a team of

RPF personnel and GRPF personnel. When the train arrived at station,

a search was conducted by the team and the victim was found in the

military compartment of the train in an unconscious state. One

13

another person from the said compartment was also detained. The

victim was taken to retiring room and the father of the victim was

informed over phone. After regaining senses, the victim disclosed

before a lady constable in the team that she was forced to consume

liquor by three persons who committed rape upon her repeatedly.

Such statement was recorded by the lady constable and placed before

PW 4. He treated such statement as First Information Report and

registered Madhupur Rail PS Case No. 00 of 2015 dated December 28,

2015 under Sections 376(2)(g)/376D/120B of the Indian Penal Code

and under Section 4 of the POCSO Act. PW 4 proved the endorsement

of receipt and his signature on the written complaint. He also filled the

formal F.I.R. which he proved. PW 4 further stated that after

registering the case, he himself took up the investigation and

apprehended the detained person on suspicion. In the course of

investigation, he sent the victim girl to Sadar Hospital, Deoghar for

medical examination with an application to constitute a medical

board. After such medical examination of the victim, PW 4 also

examined the remaining available witnesses and recorded their

statements. Within 24 hours, PW 4 handed over the victim as well as

the appellant Manjrish Tripathi together with the case diary and

connected papers to Howrah GRPS as the place of occurrence falls

under the jurisdiction of Howrah GRPS. PW 4 also handed over the

wearing apparels of the victim to the Officer-in-Charge of Howrah PS

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which was seized under a seizure list. PW 5 proved his signature on

the seizure list. He also identified the seized wearing apparels of the

victim in Court (Mat Exhibit 1 collectively).

24. A lady constable before whom the victim narrated the incident

deposed as PW 5. She stated that on December 27, 2015 in the

evening she received a phone call from PW 4. As per the instructions

of PW 4, she went to Madhupur Railway Station and was informed by

PW 4 that a girl was travelling in Amritsar Express without informing

her parents. When the train reached Madhupur Station, she along

with others started searching for the girl. The victim was ultimately

recovered from the military compartment of the train in semi-

conscious condition. The victim was removed to retiring room of

Madhupur Railway Station from the military compartment. One

person who was sitting beside the victim was apprehended by PW 4 for

interrogation. PW 5 and another lady police officer remained with the

victim during the night. When the victim regained senses, she

informed PW 5 that she boarded the train from Howrah Station. After

10/15 minutes of departure of the train, she was forced to consume

liquor. Thereafter, the victim went to the toilet in that compartment.

One of the three persons who forced her to drink, accompanied the

victim to the toilet and when she was about to come out from the

toilet, the person entered into the toilet forcefully. He committed rape

upon the victim inside the toilet. Thereafter, the second of the three

15

men also entered the toilet and committed rape upon the victim. Both

of them committed rape upon the victim in turns for six times. PW 5

also stated that she was informed by the victim that she was taken

back from the toilet by the aforesaid appellants who committed rape

upon the victim and was laid on a seat of the compartment. The

appellants were also planning to throw the victim out of the train. PW

5 further stated that PW 4 recorded the statement of the victim in her

presence. She put her signature on such recording which she proved

(Exhibit 1/4).

25. PW 5 also accompanied the victim to Deoghar Government

Hospital for medical examination. Later on PW 5 and others

accompanied the victim to Howrah GRPS and handed over the victim

to Howrah GRPS along with one of the appellants apprehended from

the military compartment. PW 5 identified the said person in Court as

Manjrish Tripathi. PW 5 also handed over the wearing apparels of the

victim to Howrah GRPS which was seized under a seizure list. She

proved her signature on such seizure list dated December 29, 2015.

She was also examined by Howrah GRPS. PW 5 identified the seized

wearing apparels of the victim.

26. A medical officer of Howrah District Hospital deposed as PW

6. He stated that on December 30, 2015 he conducted potency test of

the appellant Manjrish Tripathi in connection with Howrah GRPS Case

No. 187 of 2015 dated December 29, 2015. On that date, he could not

16

form any opinion in such examination. He again examined the said

appellant on January 13, 2016 and upon such examination, PW 6

opined that the said appellant was quite capable of performing sexual

intercourse. He prepared a report in this regard which he proved

(Exhibit 10).

27. PW 6 further stated that on January 27, 2016 the appellant

Pankaj Kumar was brought to him for potency test in connection with

Howrah GRPS Case No. 187 of 2015 dated December 29, 2015.

However, such examination could not be conducted as the appellant

Pankaj Kumar refused his examination. Howrah GRPS Case No. 187

of 2015 dated December 29, 2015 6 prepared a report in this regard

upon which the appellant noted his refusal. Such report was admitted

in evidence and marked as Exhibit 11.

28. PW 6 also conducted potency test upon the appellant Balak

Ram Yadav on January 13, 2016 in connection with the said case.

However, PW 6 could not come to a conclusion on such examination

on December 29, 2015 and January 27, 2016. Appellant Balak Ram

Yadav was again examined by PW 6 on February 10, 2016 and on

such examination PW 6 opined that the said appellant was capable of

performing sexual intercourse. He proved his report in this regard

(Exhibit 12).

29. Another medical officer and a psychological specialist deposed

as PW 7. She stated that on January 6, 2016 she examined the victim

17

produced by Howrah GRPS. PW 7 also stated that she examined the

victim after nine days of the alleged incident. She narrated the seven

injuries found by her on the person of the victim, in her deposition.

She further stated that as the victim came late on the ninth day of the

incident, some of the evidence might not be available. She also stated

that no external injuries were found on her private parts including

vagina. The vaginal swab of the victim was collected but at that time,

the victim was menstruating. PW 7 also could not examine the inner

parts of the vagina of the victim properly due to menstruation. She,

however, found the hymen of the victim ruptured. PW 7 proved her

medical report (Exhibit 8/1).

30. A medical officer from Deoghar Sadar Hospital was examined

as PW 8. She stated that a medical board was constituted under

directions of Deputy Superintendent, Deoghar Sadar Hospital

consisting of Dr. L. N. Pandit, orthopaedic surgeon, Dr. L.P.

Brahamchari, Dental surgeon, Dr. M. K. Lal, Radiologist and herself.

She examined the victim on December 28, 2015 brought by RPF,

Madhupur. PW8 identified the RPF personnel by their names and

designation in her deposition. She further stated that on internal

examination of the victim, she found a) no foreign body and no external

hair present in the private parts; b) hymen found ruptured. At the time

of examination, seminal fluid found present on the vaginal cavity at

the time of examination. Vaginal swab was taken in two slides and

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was sent for histopathological examination. Pathological examination

was made by pathologist of Sadar Hospital, Deoghar and report in this

regard was submitted. PW 8 perused the said report. The victim was

sent to dental surgeon, orthopaedic surgeon and radiologist for age

determination. She went through such report and the age of the victim

was assessed between 14 years and 15 years.

31. PW 8 further stated in her deposition that after examination,

her opinion was,

a) “Each of the patient was 14 years to 15 years;

b) Signs of rape was present;

c) Seminal fluid found present on the red vinyl cavity at the

time of examination;

d) Sign of forceful intercourse was present;

e) Pathological report shows spermatozoa was present on

the vaginal Swab;

f) Mark of violence present on the left hand palm 2 to 3 cm

abrasion present, left hand ring finger nail injured,

blackish to bluish colour plus swelling.”

PW 8 described the wearing apparel of the victim as 1) black coloured

bra 2) black T-shirt 3) purple coloured sweater 4) light sky jeans pant,

which were handed over to the team of GRPS. She proved the report

prepared by her and the other members of the Board which contained

the signature of PW 8 (Exhibit 2/1 and Exhibit 2/2). She also

identified the wearing apparels of the victim in Court.

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32. Another doctor from Deoghar hospital and a member of the

medical board was examined as PW 9. He stated that on December 28,

2015, he was a member of a medical board constituted for medical

examination of the victim besides three other members. PW 9 further

stated that on examination he advised x-ray AP view pelvis including

iliac crests, x-ray elbow AP view, x-ray AP view of both wrists. He

proved his signature on the advice (Exhibit 13). He further stated that

after the tests, reports were produced before the medical board and on

the basis of physical appearance dentition and radiological finding in

OPG, pelvis wrist and elbow, the age of the victim was estimated to be

between 14 to 15 years. He proved the report prepared in his pen

(Exhibit 13/1) and his signature on the findings (Exhibit 14). He also

proved his signature on the report of the medical board (Exhibit 2/3).

33. Another member of medical board was examined as PW 10.

He stated that on December 28, 2015 he examined the teeth of the

victim as a member of a medical board constituted by the

superintendent, Sadar Hospital, Deoghar. He advised x-ray of jaws

and teeth of the victim. He also noted number of her teeth, erected

teeth, perused x-ray plates and found his opinion along with other

members of the board. He further stated that on the basis of physical

appearance, dentition, radiological findings of jaws (OPG), pelvis,

wrist, elbow, each of the victim was estimated between 14 and 15

years. PW 10 proved his signatures on the report of the medical board

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(Exhibit 14/1 and Exhibit 14/2) he also proved his signature on the

opinion of the medical board and the x-ray plate.

34. Another doctor of the medical board deposed as PW 11. He

stated that on December 28, 2015 the victim was brought to Sadar

Hospital, Deoghar. She was examined by the gynaecologist and PW 11

was supplied with the slides of vaginal swab of the victim. PW 11

examined the said slides and found 1) epithelia cells, 2) artefacts and

3) spermatozoa. He proved the pathological report prepared in his pen

and signature (Exhibit 16). PW 11 also stated that on December 28,

2015, he was a member of a medical board constituted by the Deputy

Superintendent of Sadar Hospital, Deoghar to determine the age of the

victim. He further stated that the board examined the victim and

advised x-rays and OPG. X-ray of pelvis, x-ray of elbow, x-ray of wrist

and OPG were done. PW 11 proved his signature on the OPD slip. He

wrote the opinion for the board on behalf of all the members and

proved the opinion as well as his signature thereon. He also proved

the x-ray plates of elbow, pelvis and that of the wrist.

35. Another medical officer attached to Nirikhan Kendra was

examined as PW 12. She stated that on February 20, 2016 the victim

was admitted under her and she was interrogated by police in that

connection. She stated before police that the victim was under severe

mental trauma as she was sexually assaulted.

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36. A Judicial Magistrate deposed as PW 13. He stated that he

conducted a Test Identification Parade inside the jail premises on

February 4, 2016 in connection with Howrah GRPS Case No.187 of

2015 dated December 29, 2015. He further stated that in such test

identification parade, the victim identified appellant Pankaj Kumar,

placed amongst 10 others, as the person who along with two other

army personnel forcefully poured liquor into her mouth while she was

travelling in Amritsar Mail train on December 27, 2015. The victim

also disclosed before PW 13 that after the liquor was poured in her

mouth, she became semi-unconscious. Thereafter, she was taken to

washroom of the train and was subjected to rape by such persons

including the suspect. PW13 proved the report of test identification

parade prepared by him.

37. A Sub-Inspector of police deposed as PW 14. He stated that

on January 5, 2016 the inspector in charge of Howrah GRPS endorsed

him with the investigation of Howrah GRPS Case No. 187 of 2015

dated December 29, 2015. Accordingly, he took up investigation of the

case as 4

th investigating officer. In his part of investigation, he seized a

sealed packet from the office of Superintendent Sadar Hospital

Deoghar produced by the lab technician Bijoy Kishore Prosad in

presence of ASI Ram Krishna Sharma of Madhupr GRPS under a

seizure list. He proved such seizure list. He also recorded the

statement of Dr. Manish Lal, Dr. Nivedita Kumari, Dr. Nandalal

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Pandit, Dr. Lakshman Prosad of Sadar Hospital, Deoghar. On January

6, 2016 he returned to Howrah GRPS and handed over the case diary

to the inspector in charge with the seized articles.

38. Another police personnel was examined as PW 15. He stated

that on December 30, 2015, the inspector in charge of Howrah GRPS

supplied him two photographs of two male persons and asked him to

go to Gauhati and Tripura to the different battalions of BSF for the

identification of the persons in the photograph. Pursuant to such

directions, PW 15 visited the transit camp, Army Department and

LGBI airport. On the following day, PW 15 received information that

two persons were detained by the CISF on the basis of the

photographs. PW 15 went there and the two detained persons

admitted the photographs to be of them. They disclosed their name as

Bala Ram Yadav and Pankaj Kumar. Accordingly, he arrested the two

persons and after observing all formalities he returned with the

arrested persons on January 1, 2016. PW 15 also seized mobile

phones, SIM cards, trolley bag and identity card of Bala Ram from his

position under a seizure list which he proved (Exhibit 22). Similarly, a

micromax mobile with SIM No. 9774321383, micromax mobile with

SIM No. 9478702806, one black coloured school bag, identity card of

Pankaj Kumar were seized by PW 15 under another seizure list

(Exhibit 23). He also recorded the statement of Dipak Kumar,

inspector of CISF, LSI Hem Kanwar, Constable of CISF Darad Yogesh

23

under Section 161 of the Code of Criminal Procedure, 1973. On

January 2, 2016, he came back to Howrah GRPS and handed over the

arrested persons with the seized articles to the inspector in charge.

The seized articles were handed over to the Malkhana officer of the

Howrah GRPS.

39. A police officer deposed as PW 16. He stated that on

December 29, 2015 he was posted at Howrah GRPS as a probationary

inspector. He used to know Sub-Inspector Asit Baran Nath of the said

GRPS and was conversant with his handwriting and signature. PW 16

proved the endorsement of receipt of the written complaint as well as

formal FIR in the pen of SI Asit Baran Nath. He further stated that he

was endorsed with the investigation of the case of Howrah GRPS Case

No. 187 of 2015 dated December 29, 2015. In the course of

investigation, PW 16 narrated the various steps taken by him. He

seized the wearing apparels of the victim under a seizure list and

arranged for recording the statement of the victim under Section 164

of the Cr.P.C. He also forwarded the arrested accused Manjrish. He

also sent two teams of police personnel to Madhupur Keul and

Gauhati. Such teams on its return submitted their part of the case

diary which was collected by PW 16.

40. PW 16 further submitted that PW 15 along with the team

arrested the appellant Balak Ram Yadav and Pankaj Kumar from

Gauhati. PW 16 forwarded the said appellant in Court. He also

24

submitted prayers for holding Test Identification Parade. He also

recorded the statements of available witnesses. On January 6, 2016,

PW 16 handed over the investigation upon return of the investigating

officer from leave.

41. Another inspector of police deposed as PW 17. He stated that

he took up investigation of the case on February 10, 2016. During his

part of investigation, he arranged for medical examination of the

appellant Balak Ram Yadav. He collected the samples of urethral swab

and urethral smear of the said accused. He also examined the medical

officer and recorded his statement. PW 17 proved the seizure list dated

February 10, 2016. He also examined available witnesses and sent the

urethral swab and urethral smear slides for scientific forensic

examination on February 11, 2016. The connected papers were proved

by PW 17 (Exhibit 28).

42. Another part investigating officer of the case was examined as

PW 18. He stated that he was endorsed with the investigation of the

case on January 6, 2016. He has also described the various steps

taken by him in course of his tenure of investigation. He also recorded

the statements of available witnesses, seized various articles including

the birth certificate of the victim under separate seizure list. He also

collected the wearing apparels of the victim and sent the same for

forensic examination on January 11, 2016 through a challan, Exhibit

32. He also examined the mother of the victim and the doctor who

25

examined the victim and recorded their statements under Section 161

of the Criminal Procedure Code. Later on, owing to his transfer, PW 18

handed over the investigation to PW 17.

43. On conclusion of the evidence for the prosecution, the

appellants were examined under Section 313 of the Criminal

Procedure Code. In such examination the appellants appear to have

been confronted with the circumstances appearing against them in the

evidence of the prosecution witnesses. In such examination, the

appellants have pleaded innocence having been falsely implicated in

the case. They, however, declined to adduce any defence evidence.

44. From the evidence on record it transpires that the victim left

her house, may be due to some spat with her parents, and was

heading to one of her friends at Ludhiana, Punjab. Evidence on

record, more specifically the evidence of the parents of the victim,

namely, PW 2 and PW 3, reveals that the victim left the house after

she had altercation with her mother. It also transpires that the victim

left her house after such altercations previously as well. Both PW 2

and PW 3 have stated that when the victim did not return to her

house after a considerable time, they approached the Child Line and

on the advice of such Child Line, they also lodged a complaint with

regard to missing of the victim with the police. In the meantime, PW 2

and PW 3 managed to log in into the Facebook account of the victim

26

from where they came to know that the victim was travelling to one of

her friends at Ludhiana by train.

45. Such facts narrated by PW 2 and PW 3 get corroborated by

the evidence of PW 1, the victim herself. In her deposition, PW 1 stated

that after having a spat with her parents, she went to Howrah station

and took a train namely Amritsar express for travelling to one of her

friends at Ludhiana.

46. According to the evidence of PW 1, she boarded the train in a

military compartment pretending it to be a general compartment. In

such compartment of the train, the victim was approached by the

three appellants. All the three appellants were military personnel.

According to the narration of PW 1, while she was having chats with

the appellants, they allegedly asked the victim if she would like to

consume liquor which she answered in the negative. Thereafter, the

appellants forcefully poured wine into her mouth resulting in her

semi-unconsciousness. The victim was then accompanied by the

appellants to the toilet. According to the case made out by the

prosecution, when the victim tried to come out of the toilet, one of the

appellants pushed her inside, undressed her and committed sexual

intercourse forcefully upon her. After that, another appellant also

committed sexual assault upon the victim and thereafter the two

appellants sexually violated the victim at least six times in turns. It is

further case of the prosecution that after sexually violating the victim

27

repeatedly, she was brought out of the toilet and was laid on her feet

in the compartment from where the victim was recovered by the police

personnel of Madhupur GRPS.

47. The incident is alleged to have started after 10/15 minutes of

the departure of the train from Howrah station at about 1:55 AM and

it is said to have continued between 1:55 AM and 2:45 AM. Two of the

appellants, who committed sexual assault upon the victim allegedly,

absconded from the train whereas the person who made the victim to

consume liquor remained and was detained at the time of recovery of

the victim.

48. The officer in charge of Madhupur GRPS was examined as PW

4. He made a categorical statement that he received a message from

Child Line on December 27, 2015 to rescue the victim who was

travelling by Train No. 13049 up, Punjab Mail. Upon such

information, PW 4 formed a rescue team of police personnel. PW 5 was

a member of such team. The rescue team made a search for the victim

in the train on its arrival at Madhupur station and rescued the victim

in an unconscious state. The evidence of PW 4 and PW 5 also discloses

that the appellant Manjrish Tripathi was also apprehended from the

compartment where the victim was found. The aforesaid witnesses

have also testified that upon regaining consciousness, the victim

disclosed before them that she was forced to consume liquor by three

persons who committed rape upon her. The victim recorded a

28

statement before the police personnel which was treated as the written

complaint and on the basis of such statement, a specific case was

started.

49. The evidence of PW 4 and PW 5 also discloses that the victim

was taken to Deoghar Sadar hospital for her medical examination. A

medical board was constituted for her examination. She was examined

by the medical board. The members of such medical board were

examined by the prosecution as PW 8, PW 9, PW 10 and PW 11. The

aforesaid witnesses have testified that the victim was produced before

Deoghar Sadar Hospital by police personnel from GRPS. They

described the nature of injuries found on the person of the victim and

the tests conducted by the medical board for determination of her age.

The evidence of PW 8 clearly indicates that upon examination of the

victim, signs of rape were found present, seminal fluid was detected in

the vaginal cavity of the victim and there were signs of forceful

intercourse upon her. The evidence of such witness also disclosed that

there were marks of violence detected on the person of the victim and

pathological report showed presence of spermatozoa in the vaginal

swab. The evidence of PW 9, PW 10 and PW 11, besides noting the

injuries found on the person of the victim, mainly confined to

determination of age of the victim which according to the opinion of

the board was opined between 14 and 15 years.

29

50. Since the alleged incident took place on a running train and

the police personnel of Madhupur GRPS intercepted and recovered the

victim from such train, a zero First Information Report was registered

by it. Later, the victim was medically examined by Deoghar Sadar

Hospital. However, ultimately, the case stood transferred to Howrah

GRPS on the grounds of jurisdiction, from where the train had initially

departed.

51. The victim was brought to Howrah GRPS and at its behest,

she was again medically examined. PW 7 is the medical officer who

examined the victim, albeit, after 9 days of the incident. On such

examination, PW 7 described as many as 7 injuries found on the

person of victim and her hymen was found ruptured by PW 7. The

nature of injuries described by PW 7 appears to be in quite

consonance of the narration of incident given by the victim in her

deposition as well as her statement recorded under Section 164 of the

Cr.P.C. The narration of incident given by PW 1 seems to be consistent

with that described in her statement recorded under Section 164 of

the Cr.P.C. The chronology of events described by PW 1 is duly

corroborated by PW2 and PW3. The parents of the victim, PW 2 and

PW 3 stated to have approached the Child Line authorities upon

elopement of the victim. There is evidence on record that the

Madhupur GRPS intercepted and rescued the victim from inside a

train on the basis of inputs from Child Line. PW 12 is a Doctor under

30

whose care; the victim was admitted in a Nirikhan Kendra, after the

incident. He has testified that the victim was traumatised after the

incident. He has categorically stated that the history of the patient was

that she was sexually assaulted.

52. As noted hereinbefore, one of the appellants who allegedly

made the victim forcefully to consume liquor was detained from the

compartment of the train along with the victim. Two other appellants,

who were alleged to have committed sexual assault upon the victim,

absconded. The police took all the steps to trace out the aforesaid

appellants namely Pankaj Kamar and Balak Ram Yadav. Their

photographs were sent to several authorities of the Army and

paramilitary forces. Ultimately the two appellants were arrested from

Gauhati airport by the intervention of CISF on the basis of the

photographs sent to them. The two appellants were brought back to

Kolkata where they were put on test identification parade. They were

identified by the victim in such TI parade as the persons who sexually

violated the victim. PW 6 is the Doctor who examined the appellants,

conducted potency test and opined that the aforesaid three appellants

were quite capable of sexual intercourse.

53. The Judicial Magistrate, who conducted the test identification

parade i.e. PW13, has testified that the victim identified the appellants

in the test identification parade. The suspect/appellant placed himself

at his choice in the parade. There is nothing in the evidence of PW 13

31

that the appellant had raised any point at the time of this

identification parade that he was shown to the victim prior to such

parade. At the time of examination of the appellant under section 313

of the Cr.P.C., the appellant was confronted with the statement of PW

13 with regard to holding of the test identification parade and his

identification therein. In answer to question No. 41, the appellant

replied to the effect that ‘it is all false. I am innocent’. In that view of

the facts, such objection raised by the appellants in course of hearing

does not stand.

54. In Gireesan Nair (supra), the Hon’ble Supreme Court was of

the view that it was for the prosecution to prove that TIP was

conducted in a fair manner and that all necessary measures and

precautions were taken before conducting the TIP. In the facts of such

case, the Hon’ble Supreme Court had also noted that the witnesses

had the opportunity of seeing the accused before the conduct of the

TIP. Not only have the witnesses deposed that they had seen the

suspects before the TIP, even Accused 2, at the end of the 1

st TIP, had

raised agreements that the suspects were all photographed,

videographed and were shown to the witnesses from the cabin of the

IO.

55. However, as noted above no such allegation was ever made by

the appellants prior to or during the TIP or even during the trial of the

case. We have noted the answer given by the appellant during his

32

examination under Section 313 of the Cr.P.C. In such view of the

facts, the ratio laid down by the Hon’ble Supreme Court in Gireesan

Nair (supra) cannot be applied in the facts of the present case.

56. In the light of the discussions made hereinbefore, we find no

reason to interfere with the impugned judgement of conviction and

order of sentence. We affirm the same.

57. Consequently, the appeals being CRA (DB) 62 of 2023, CRA

(DB) 136 of 2023 and CRA (DB) 156 of 2023 are hereby dismissed.

Connected applications, if any, shall also stand disposed of.

58. Period of detention already undergone by the appellants

during enquiry, investigation or trial shall be set off against the

substantial punishment in accordance with the provisions of Section

428 of the Cr.P.C.

59. Urgent Photostat Certified copy of this judgment, if applied

for, be supplied expeditiously after complying with all necessary legal

formalities.

[MD. SHABBAR RASHIDI, J.]

60. I agree.

[DEBANGSU BASAK, J.]