Kashim Sk. & Others vs The State Of West Bengal on 30 June, 2017

Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side

Present :
THE HON’BLE JUSTICE ANIRUDDHA BOSE
AND
THE HON’BLE JUSTICE SANKAR ACHARYYA

C.R.A. 535 of 2012
Kashim Sk. Others
Vs.
The State of West Bengal

For the appellants : Mr. Tapan Datta Gupta, advocate.
Mr. Parvej Anam, advocate.

For the state : Mr. Subir Banerjee, Ld. APP.
Mr. Jayanta Banerjee, advocate.

Heard on : 28.07.2016, 16.12.2016, 24.02.2017, 16.06.2017,
23.06.2017.

Judgment on : 30.06.2017

SANKAR ACHARYYA, J.

On being convicted under Sections 448/376 (2) (g) of the Indian
Penal Code and being sentenced to suffer simple imprisonment of
one year each and also to pay fine with default clause and also to
suffer rigorous imprisonment for ten years each with fine and
default clause respectively awarded in the judgment dated
06.08.2012 passed by learned Additional Sessions Judge, Fast
Track (1st) Court, Raiganj in Sessions Trial No. 08 of 2005
corresponding to Sessions Case No. 25 of 2005, three appellants
have preferred this appeal. All the convicts are in judicial custody.

This is a case of committing house trespass and gang rape of a
25 years old house wife, the mother of three children in the mid
night on 29.01.2004/30.01.2004 frightening the victim woman as
alleged against the three appellants of this appeal.

In the following day time of the occurrence the prosecutrix
lodged first information report (FIR) at Itahar police station making
specific allegations against the appellants by names and police
recorded the FIR on 30.01.2004. As per FIR the victim and her
three children who were sleeping in a single bed in their bed room
are the only witnesses of the alleged occurrence. Police investigated
the case and submitted charge sheet against the three appellants
under
Sections 448/376 (2) (g)/506 of the Indian Penal Code.
During investigation two appellants Kashim Sk. and Saiful Alam
could be arrested by police and they were medically examined on
prayer of the investigation police officer. Since the another
appellant Sukum Ali was absconding his medical examination could
not be done.

In the trial Court all the three appellants were tried jointly
framing charges under
Sections 448/376 (2) (g)/506 of the Indian
Penal Code. After full trial the appellants were found guilty of the
charges under
Sections 448/376 (2) (g) of the Indian Penal Code
and they were found not guilty of the charge under
Section 506 of
that Code.

Defence of the appellants in the trial Court was denial of
alleged incident and their false implication in the case by
prosecutrix out of previous enmity and grudge. Such defence was
not believed as true by the trial Court.

In course of hearing this appeal, hearing the learned counsel
for the parties at the first instance, we were convinced about some
curable irregularities took place in examining the accused persons
under
Section 313 Cr.P.C. As such, under our direction the
appellants were examined for the second time under
Section 313 of
the Code of Criminal Procedure in the trial Court and further
opportunity was given to them for adducing evidence but they did
not adduce any evidence. said process was adopted by this Court of
appeal as the proceeding of trial Court is being continued in this
appeal also.

In this appeal learned counsel for the appellants advanced
arguments that PW 1 is the alleged victim, PW 2 is the husband of
PW 1, PW 3 is minor daughter of PW 1 and PW 6 is brother of PW 2
and there exists gulf of contradiction in their depositions inter se
and also with the FIR. His further arguments is that the PW 3 is a
child witness but her competence was not tested under
Section 118
of the Evidence Act. According to him, the statements made by PW
7 who is a neighbour of PW 1 are hearsay and not helpful for the
prosecution case. He pointed out that there was delay of 13 hours
and 45 minutes in lodging the FIR without explanation. He also
argued that the medical evidence does not support the prosecution
case which is fatal but not considered by the trial Court. He has
claimed that the place of alleged incident is not proved beyond
reasonable doubt and the benefit must go in favour of defence.

He relied on some judicial pronouncements. It has been
submitted by him that the appellants remain in custody for more
than six years out of their substantive punishment of imprisonment
for ten years as awarded in the impugned judgment and as such, in
case this Court of appeal is satisfied about the proof of prosecution
case the punishment may be reduced.

Learned Additional Public Prosecutor for the State has
advanced arguments in support of the conviction and sentence
awarded against the appellants. According to him, from the
evidence of the prosecutrix read with FIR there is no shadow of
doubt about the truthfulness of this illiterate rustic village dweller
house wife. More so, the attending circumstances as established
from the time of occurrence, place of occurrence, absence of the
husband of the prosecutrix from house in the fateful night and
failure on the part of appellants to establish even by preponderance
of probability any special reason for the prosecutrix to bring such a
serious allegation falsely against the appellants, corroborate the
prosecution case strongly. Drawing our attention to the exhibit- 8
he has submitted that the place of occurrence is sufficiently
identifiable. He also drew our attention to the medical evidence. He
advanced his arguments that in substance the medical evidence is
corroborative to prosecutrix specially when it is evident from
deposition of PW 9 that spermatozoa was detected in the seminal
stains on victim’s petticoat and there was no suggestion to PW 9
during cross-examination against the truthfulness of the
prosecutrix. Relating to the arguments advanced on behalf of
appellants about compliance of
Section 118 of the Evidence Act
before examination of the child witness it has been argued on behalf
of the State that the deposition of PW 3 itself speaks that the
witness understood the questions put to her during examination
and she gave rational answers to the questions which were
considered by the learned Judge during trial and so PW 3 was
considered as a competent witness in view of the provisions under
Section 118 of the Evidence Act and her statements have been
recorded as evidence of competent witness. According to him,
minimum term of imprisonment has been awarded to the
appellants in the impugned judgment and there is no scope to
reduce it.

Having gone through the materials on record it appears to us
that proscutrix (PW 1) is illiterate and she lodged complaint asFIR
(exhibit- 7) at Itahar police station on 30.01.2004 at 1:45 p.m. and
it was registered starting a case against these appellants under
Sections 448/376 (2) (g) /506 of the Indian Penal Code (exhibit-
7/1). The police station is 10 kilometers away from the place of
occurrence (exhibit- 6). On 30.01.2004 investigating police officer
(PW 10) prepared a sketch map (exhibit- 8) of the place of
occurrence and seized one old petticoat with seminal stains, one old
printed saree, one old and torn blouse and one nylon rope under a
seizure list (exhibit- 3) as produced by PW 1. On 08.02.2004 and
31.01.2004 two appellants Saiful Sk @ Saifuddin and Kasim
Mahammad respectively were clinically examined by PW 4 as per
reports [exhibits- 1 and 1 (1)] and on 331.01.2004 the PW 1 was
medically examined by PW 5 as per report (exhibit-2). On
05.02.2004 the statement of victim’s minor daughter (PW 3) was
recorded and on 12.02.2004 statement of PW 1 was recorded by
learned Judicial Magistrate under
Section 164 of the Code of
Criminal Procedure (exhibits 9/1 and 9 respectively). Seized
wearing apparels of PW 1 were examined in Regional Forensic
Science Laboratory as per report (exhibit- 5 with copy as exhibit-
5/1). After completion of investigation PW 10 submitted charge-
sheet on 30.06.2004 against all the three appellants showing the
appellant Sukum Ali as absconder. Thereafter, on 04.09.2004
Sukum Ali surrendered in Court. He was not examined by any
doctor. He also did not deny his capability for sexual intercourse.
After commitment of the case the trial Court framed charges under
Section 448/376 (2) (g)/506 of the Indian Penal Code and the case
was tried.

Determining questions

1. Is the PW 1 a reliable witness?

2. Is the PW 3 a competent witness?

3. Is there major contradiction in the totality of
prosecution evidence?

4. Does the defence of appellants inspire confidence to cast
doubt against prosecution case?

5. Is there inordinate delay in lodging FIR without
satisfactory explanation?

6. Is the alleged place of occurrence identifiable?

7. Is the impugned judgment liable to be set aside or
modified?

READ  Jagdish vs The State Of M.P. on 19 June, 2017

DECISION

1.Is the PW 1 a reliable witness? – this is a case with allegation of
sexual assault on PW 1 by three appellants in the house of PW 1
where PW 1 was sleeping in the midnight with her three children
including PW 3 who is eldest child of PW 1 and was 9 years old at
the time of the occurrence which took place on
29.01.2004/30.01.2004.

It is general presumption that a woman ordinarily does not expose
herself in society to shoulder a stigma of rape victim falsely unless
there is strong special reason. Still in a criminal trial it is a
presumption which is far away from proof beyond reasonable
doubt. Such presumption does not exonerate the prosecution from
discharging its burden of proof. However, such presumption carries
much weight when the victim herself gives evidence in Court facing
cross-examination in support of the allegation. On that score a
criminal trial for charge of rape/gang rape or like nature is to some
extent different from trial with charge of other penal offences
specially because possibility of corroboration by an independent
witness to a victim relating to the actual incident of rape/gang rape
is remote and normally a woman may not say in witness box taking
oath in presence of accused in a Court of law that she was ravished
by accused.

We like to consider the exhibits 7, 6, 9 and deposition of PW 1
simultaneously along with the established circumstances to arrive
at our decision on this question.

It reveals from exhibit- 7 (written complaint of PW 1) that the
prosecutrix is an illiterate married woman aged about 25 years
having three children aged 9 years, 7 years and 3 years. In the
fateful night her husband was away from house for his business.
PW 1 and her three children were sleeping in their room. In the
midnight she heard sound of knocking the door of the room and she
asked who was there. Then three appellants entered the room,
frightened PW 1 with dire consequence, tied mouth of the PW 1 with
cloth and took her to the corner of the room. PW 1 identified the
appellants who committed rape on her one after another. Her
children woke up and witnessed the incident. After departure of
appellants PW 1 and her children raised hue and cry when
neighbours arrived to whom PW 1 narrated the incident stating that
the appellants tied her hands by rope, threatened her with dire
consequence and raped her consecutively. Exhibit- 7 is the first
official record of version of PW 1 about occurrence. As per exhibit-
7/1 and 6 this complaint was submitted in Itahar police station on
30.01.2004 at 01:45 p.m. Exhibit- 6 speaks that the distance
between the place of occurrence and police station is 10 k.m.

On 12.02.2004 PW 1 narrated the incidents before learned
Magistrate as appears in exhibit- 9. At that time she gave a vivid
description before the learned Magistrate (Lady) as to how the
appellants tied her with a rope, laid her on the floor, gagged her
with cloth, threatened her with dire consequence and committed
sexual intercourse on her one after another. Said statements do
not appear to us as contradictory to exhibit 7. The only difference
as appears is that in exhibit 7 she stated that she narrated the
incident before villagers in the fateful night but in exhibit 9 she
stated that in the following morning she narrated the incident to
villagers. This difference does not appear to us major contradiction.
In exhibit- 9 she added that on the following morning at about
10:00 a.m. her husband (PW 2) returned home and learnt about the
incident and then complaint was lodged at police station. She also
stated that she was taken to hospital and was given medicine.

Deposition of prosecutrix (PW 1) was recorded on 5th August, 2006.
In her examination-in-chief PW 1 stated on oath the same version
in substance which she made in exhibits 7 and 9. She clarified that
the miscreants entered into her bed room breaking the fenced wall
between their room and cowshed. We can understand from exhibit-
8 that the cowshed in the house of PW 1 is at adjacent south of
their bed room and thus possibility of entering into the bed room
through the cowshed cannot be ruled out. Her such clarification
cannot be treated as contradiction or improvement of her earlier
statements. Moreover, the PW 1 has made the picture almost live
during her cross-examination about the existence of their fenced
bed room and open cowshed. Her explanation about identification
of the appellants in torch light and hearing voice of the miscreants
does not appear to us improbable or an embellishment. During
cross-examination PW 1 stated nothing to disbelieve her
examination-in-chief which is corroborated by exhibits 7 and 9.
Omnibus suggestion was given to her during cross-examination
that out of enmity against the accused persons she initiated the
case. Said suggestion was denied by her. No particular cause of
alleged enmity against three appellants jointly was suggested even.
Appellants were given opportunity to establish their defence
adducing evidence during trial and further by this Court during
pendency of this appeal but they did not adduce any evidence to
prove any enmity between PW 1 and accused persons.
Unfortunately some questions were put to PW 1 during her cross-
examination touching her character which we do not appreciate or
approve.

The PW 1 is the most competent witness according to the facts and
circumstances of this case. Her evidence is so convincing that the
same requires no corroboration. The facts stated by her sufficiently
explains the delay in lodging FIR. We like to note that occurrence
took place in the mid night of 29.01.2004/30.01.2004. Husband of
PW 1 was not present in the house in that night and he returned
home in the following morning at 10:00 a.m. (exhibit- 9). Thereafter
PW 1 narrated the incident to him (PW 2) and then the exhibit- 7
was written by the scribe as described by PW 1. After that they
went to police station which is about ten kilometres away from their
house and PW 1 lodged the exhibit- 7 there at 1:45 p.m. on
30.01.2004 (exhibit- 6).

In our opinion, the portions of evidence of PW 1 which have been
claimed by learned counsel for the appellants as contradiction are
negligible and almost the same is clarification of earlier statements
of PW 1. FIR is not encyclopaedia of the whole prosecution case in
the eye of law. Having considered the totality of evidence of PW 1
we find the PW 1 is a reliable and most competent witness.
Therefore, this first determining question is accordingly answered in
favour of the prosecution case brought by State respondent.

2. Is the PW 3 a competent witness? – Competence of PW 3 has
been challenged on behalf of the appellants with arguments that
before recording her statement under Section 164 of the Code of
Criminal Procedure or her deposition her capacity of understanding
questions and ability to give rational answers to the questions was
not tested under
Section 118 of the Evidence Act although it is
undisputed that at the time of recording exhibit 9/1 she was nine
years old and at the time of recording her deposition she was eleven
years old.

Section 118 of the Evidence Act reads as:-

“118. Who may testify.- All persons shall be competent to testify unless
the Court considers that they are prevented from understanding the question put
to them, or from giving rational answers to those questions, by tender years,
extreme old age, disease, whether of body or mind or any other cause of the
same kind.

Explanation.- A lunatic is not incompetent to testify, unless he is prevented
by his lunacy from understanding the questions put to him and giving rational
answers to them”.

On plain reading of the Section, it can be safely said that
matter of competence of a witness can be considered only by the
Court which examines the witness. There is no specifically
prescribed rule or procedure in the statute for testing the
competence of a witness. However, the Court must be satisfied that
the witness is capable to understand the questions put to him/her
and can respond the questions giving rational answers. For doing
so, it is not essential to ask the witness questions outside subject
matter first. If the Court asks questions in connection with
determining the subject matter and is satisfied that the witness
understands the questions correctly and answers the questions
rationally, may the witness be a child or old or sick, recording
evidence of the witness by the Court cannot be said as illegal, and
evidentiary value of such witness cannot be weighed otherwise than
the other witnesses, in accordance with law.

READ  Anjali Ghosh-vs-Subodh Kumar Ghosh on 16 May, 2005

Here, admittedly, PW 3 is the eldest child of PW 1. In exhibit-
9/1 learned Magistrate recorded statements of PW 3 in question-
answer form. Having gone through the exhibit- 9/1 no prudent
man can say that the PW 3 could not understand the questions of
learned Magistrate or she had given answers which are not rational.
Deposition of PW 3 which was recorded during trial and she was
cross-examined at length. Having gone through it not even a single
recorded answer of PW 3 appears to us as irrational or given
without understanding the question put to her. As such, we are
fully satisfied to hold and we hold that PW 3 is not incompetent in
view of Section 118 of the Evidence Act. Her oral testimony
deserves consideration, of course, with due care and caution for her
relationship with prosecutrix and her premature age, so that no
prejudice is caused to the accused persons. The question is
answered accordingly against the appellants.

3. Is there major contradiction in the totality of
prosecution evidence? PW 2 is the husband of the prosecutrix
(PW 1) and PW 3 is their daughter. PW 6 is brother of PW 2 and PW
7 is their neighbour.

PW 2 did not see the alleged incident but he narrated the
incident claiming that he learnt it from his wife, villagers and his
children. He is also an illiterate person. The wearing apparels of
his wife which she was wearing at the time of occurrence were
seized by police (PW 10) in the house of PW 2 by virtue of a seizure
list (exhibit- 3) in presence of PW 2 and others. This evidence of PW
2 is corroborated by PW 10 and exhibit- 3. His statements about
the happenings during occurrence are considered as hearsay by us
although we believe that on his returning home on the following day
after the fateful night his wife (PW 1) narrated incidents of the said
preceding night which he heard directly from PW 1. His evidence
regarding seizure of wearing apparels of PW 1 by police is direct
relevant and admissible in the eye of law. During his cross-
examination he answered credibly on the questions relating to
seizure. PW 2 denied suggestion put during cross-examinations
that they had previous enmity and grudge against accused persons.

Since the PW 3 is a child witness we like to consider her
evidence cautiously. Having gone through the evidence of the
investigating police officer (PW 10) and that of PW 3 simultaneously
we believe that PW 10 examined PW 3 on 30.1.2004 and recorded
her statement under
Section 161 of the Code of Criminal Procedure.
At that time PW 3 did not state how the miscreants entered into
their bed room. She also did not narrate how the accused persons
committed misdeeds on her mother in the night of occurrence. She
stated before PW 10 that during her mother’s (PW 1’s) cry they
(children of PW 1) woke up and found their mother absent in the
bed and was groaning. She also stated that they could not
understand what happened and they also started crying. On
5.2.2004 she stated before learned Magistrate about the alleged
incidents beginning to end as if she saw the incidents with her own
eyes. In our opinion, such improved statements were made after
six days of occurrence contradicting her earlier statements which
she made before PW 10. If we believe her statements before PW 10
we cannot believe that she witnessed entrance of accused persons
in the bed room, frightening PW 1 and commission of sexual
intercourse by accused persons on PW 1 but it should be believed
that in the night of alleged occurrence an unbecoming incident
occurred in their bed room and PW 1 is the victim of such
occurrence. On the same analogy we find major contradiction
between statement of PW 3 made before PW 10 on 30.01.2004 and
her deposition recorded in Court on 08.08.2006. In India ‘falsus in
uno falsus omnibus’ doctrine is not applicable. We believe as per
totality of evidence of PW 3 that only it is proved that in the night of
29.01.2004/30.01.2004 an incident took place in their bed room
and PW 1 is victim of such incident but we are not satisfied to
disbelieve the prosecutrix (PW 1) only because we do not believe the
PW 3 as eye witness of the entire occurrence and we believe the PW
3 as a post occurrence witness.

PW 4 clinically examined two appellants Saiful Sk. @
Saifuddin and Kasim Md. and prepared the reports exhibits 1 and 1

(a). As per said reports there is nothing suggestive that the patients
(said appellants) are incapable of sexual intercourse. In course of
recording deposition of PW 4 the word ‘nothing’ has been omitted
relating to clinical examination of Saiful Sk. @ Saifuddin which is
an apparent mistake in recording that deposition. Significantly,
during cross-examination of PW 4 it was not asserted that Saiful
Sk. @ Saifuddin is impotent or recording in exhibit- 1 in support of
his capability for sexual intercourse is incorrect. We are not
satisfied to give any privilege to the appellants of such omission
treating it as major contradiction.

PW 5 medically examined PW 1 on 31.01.2004 and prepared
report (exhibit- 2). As per exhibit- 2, PW 1 was examined by PW 5
at 12:15 p.m. on 31.01.2004 and PW 5 could not ascertain whether
PW 1 was raped or not. PW 5 clarified that if intercourse is done on
a mother of children following inducement and intimidation there is
no chance of external injury over the concerned part of the body.
PW 5 did not find injury inside vagina of PW `1 or mark of violence
on her person. During cross-examination PW 5 ruled out that there
must be mark of injury in vagina in case of rape or gang rape on the
woman under intimidation. As per prosecution case and evidence
of PW 5 and exhibit- 2 the PW 1 was examined after about 36 hours
of the occurrence.

PW 6 is not witness of occurrence but he claimed himself as
post occurrence witness and he stated about occurrence in the tune
of prosecution case on the basis of his hearing from PW 1. But he
witnessed the seizure of wearing apparels of PW 1 and one rope by
PW 10 which evidence appears to us convincing. The description of
occurrence given by PW 6 appears to us hearsay. Regarding
seizure he stood with credibility during cross-examination.

PW 7 is an independent witness. He deposed in support of the
alleged incident of rape on PW 1 by the three accused appellants
but his statements are based on hearsay in the eye of law.

PW 8 examined vaginal swab of PW 1 at Raiganj District
Hospital but he did not find any spermatozoa in it. Said evidence is
corroborated by his report (exhibit- 4). As per evidence of PW 8, the
victim was produced for examination after 48 hours of occurrence
and generally spermatozoa does not exist in vagina after 48 hours of
intercourse.

As per evidence of PW 9 and exhibits 5 and 5/1 spermatozoa
was detected in the seminal stains on the petticoat which was
examined by him. He has stated that one parcel containing one
petticoat, one saree and one blouse was received in his office for
chemical analysis through S.D.J.M. Raiganj, Uttar Dinajpur in
connection with Itahar P.S. Case No. 13/04 dated 30.01.2004. We
do not find reason to disbelieve it. Said evidence strongly
corroborates the prosecution case.

In summing up the totality of the evidence adduced by
prosecution during trial we find some contradiction as discussed
aforesaid but we are not satisfied to accept the same as major
contradiction to disbelieve the veracity of PW 1 or cast any shadow
of doubt on her version whose evidence plays pivotal role in the
case. Accordingly, this question is answered against the appellants.

4. Does the defence of the appellants inspire confidence to
cast doubt against prosecution case ? – On this question we like
to reiterate that there was omnibus suggestion to PW 1 that out of
enmity PW 1 brought the case against accused appellants falsely
but even after getting opportunity twice they did not adduce
evidence to substantiate their plea even by preponderance of
probability. Prosecutrix complained against three appellants by
names that they conjointly committed rape on her simultaneously.
There is no iota of material on record to suggest that all the three
appellants had any common interest or they had any common
grievance against PW 1 or her family vice versa for which PW 1
might have attempted to rope them in a single rope of allegation of
their committing gang rape on PW 1. There is claim that aunt
(Sahera Bibi) of appellant Sukum filed a case against PW 1, PW 2
and PW 6 or appellant Kasim (vide suggestion to PW 1 during cross-
examination). PW 2 and PW 6 admitted that Sahera Bibi filed a
case against PW 1, PW 2 and PW 6. No nexus of appellants Kashim
Sk. and Saiful Alam with such a case has not been suggested even
to PWs. Said Sahera Bibi might have been examined as a witness
for the appellants to establish that all the three accused appellants
had connection in that case for which PW 1 became enraged against
them and brought allegation of commission of gang rape on her by
them.

READ  Mahesh Subhanrao Kalge vs The State Of Maharashtra And Anr on 27 April, 2017

We are not at all satisfied to place our confidence on the
defence plea to cast any doubt against the prosecution case. This
question is therefore, answered in the negative.

5. Is there inordinate delay in lodging FIR without
satisfactory explanation ? – As per case of the prosecution the
occurrence of house trespass and gang rape upon PW 1 took place
in the mid night of 29.01.2004 and 30.01.2004 and information of
the incidents was reported at Itahar Police station on 30.01.2004 at
1:45 p.m. As such, the occurrence took place in winter season.
Husband (PW 2) of the prosecution was not present in their house
in the fateful night. Such facts appear to us sufficient explanation
of giving no information at police station in the night of occurrence.
PW 1 and PW 2 are illiterate village inhabitants. Generally village
dweller housewives do not go to police without taking
consent/permission from their respective husband. PW 1 stated in
exhibit- 9 that PW 2 returned home in the following morning
(30.01.2004) at about 10:00 a.m. and thereafter he was apprised
about the incidents of preceding night. Thereafter PW 1 went to
police station with her husband, got the complaint written by the
scribe under her description of the incidents and lodged the same
at police station on 30.01.2004 at 1:45 p.m. It will not be irrelevant
to mention that the distance between police station and the house
of PW 1 and PW 2 is about 10 kilometers. Taking into
consideration all the above aspects we cannot and we do not hold
that there was any inordinate delay in lodging FIR requiring further
explanation. Accordingly this question is answered against the
appellants.

6. Is the alleged place of occurrence identifiable ? – PW 1
has described the place of alleged occurrence as their bed room.
Description of their bed room with bamboo fenced wall beside their
open cowshed has been sufficiently given by PW 1 and PW 2.
Corroborating such description the PW 10 has drawn exhibit- 8.
We feel no difficulty to understand the location of the place of
occurrence. Therefore, this question is decided with affirmative
answer against the appellants.

7. Is the impugned judgment liable to be set aside or
modified ? – Having considered the facts, circumstances and
evidence we do not find error in holding the accused appellants
guilty in the impugned judgment of the charges under Sections
448/
376 (2) (g) of the Indian Penal Code. Substantive sentence of
rigorous imprisonment for ten years has been awarded against the
appellants in the impugned judgment for the charge under
Section
376 (2) (g)
of the Indian Penal Code. The appellants have also been
awarded simple imprisonment for one year for the charge under
Section 448 of the Indian Penal Code but order has also been
passed for running both the sentences concurrently. As such, in
total, they have been made liable to suffer substantive
imprisonment for ten years. The mandate of law as per
Section 376
(2) (g)
of the Indian Penal Code is to award punishment to a guilty
man with rigorous imprisonment for a term not less than ten years
but which may be for life imprisonment with fine and for adequate
and special reasons the court may impose a sentence of
imprisonment of either description for a term of less than ten years.
Considering the nature and gravity of the offence committed by the
appellants we cannot consider detention of appellants for more than
six years as adequate or a special reason for reducing the term of
imprisonment. The ratio of the decision of the Hon’ble Supreme
Court of India in Phul Singh Vs. State of Haryana reported in
AIR 1980 SC 249 is not applicable in this case as the facts and
circumstances of that reported case are not similar to this case. As
such, the submission for reduction of sentence of the appellants is
not accepted by us.

We have already discussed thoroughly on the testimony of
prosecutrix and her earlier statements made in connection with the
case. We have also discussed about the delay in lodging FIR. In
our opinion, the PW 1 is a reliable witness and there is no shadow
of doubt against the truthfulness of the prosecutrix. Such situation
did not exist in the case before the Hon’ble Supreme Court in the
case of Ramdas and Others Vs. State of Maharashtra reported
in (2007) 1 C Cr LR (SC) 72. Ratio of that judgment does not
improve the case of the appellants.

The facts and evidence discussed in Sadashiv Ramrao
Hadbe Vs. State of Maharashtra reported in (2007) 1 SCC (Cri)
161 are not at all similar to the instant case where we find
corroboration to the prosecutrix in the evidence of PW 9 read with
exhibits 5 and 5/1 as discussed earlier in this judgment. Medical
evidence in this case has also not ruled out truthfulness of the
prosecutrix. In the reported case the fact situation was totally
dissimilar to the instant case and thus the ratio of that case is not
applicable here.

In Vimal Suresh Kamble vs. Chaluverapinake reported in
(2003) 3 SCC 175 the occurrence allegedly took place on a Sunday
at about 12:30 p.m. (noon) and the conduct of the prosecutrix after
that time was found surprising. Even when her husband returned
home in the evening she did not report the incident to him. In the
following morning also she worked in four flats without reporting
the alleged incident to anybody. Such fact scenario or similar
situation does not exist here in the case under our consideration.

There was contradiction in previous statement and oral
testimony of the prosecutrix as held in Abbas Ahmad Chowdhary
Vs. State of Assam reported in (2010) 12 SCC 115. The ratio of
that decision does not fortify the appellants in this appeal.

Having considered the facts, circumstances and evidence on
record we are satisfied to hold and therefore, we hold that the
impugned judgment in the matter of conviction and sentence of the
appellants needs no interference by this Court of appeal.

Before concluding our discussion we feel it necessary to point
out that the impugned judgment was delivered in August, 2012
when
Section 357 A of the Code of Criminal Procedure was already
given effect. In the impugned judgment learned trial Judge imposed
fine amount also in addition to substantive sentence of
imprisonment but did not consider the provisions under
Section
357 of the Code of Criminal Procedure for payment of compensation
to prosecutrix which is considered by us a vital omission. We are of
the opinion that it will be justified to pass an order for payment of
the entire fine amount, if realised, to the prosecutrix of the case.
Impugned judgment requires modification in that respect. We are
also of the opinion that it is a fit case for invoking our power to pass
an order under
Section 357 A of the Code of Criminal Procedure
recommending victim compensation.

This question is answered accordingly confirming the
conviction and sentence of the appellants awarded in the impugned
judgment and for modification of that judgment giving direction to
utilize the fine amount, if realised, paying the whole amount of fine
to the victim prosecutrix under
Section 357 of the Code of Criminal
Procedure.

In the light of our discussion made in this judgment we
confirm the conviction and sentence of the appellants awarded in
the impugned judgment. The whole fine amount, as imposed on the
appellants, if realised, be given to the victim prosecutrix (PW 1)
under
Section 357 of the Code of Criminal Procedure. In addition,
we recommend for payment of compensation to the victim
prosecutrix (PW 1) by the State Legal Services Authority, West
Bengal under
Section 357 A of the Code of Criminal Procedure,
1973.

This appeal is disposed of accordingly.

Copy of this judgment alongwith LCR be sent to the trial Court
by the Superintendent, Criminal Section of this High Court.

A copy of this judgment be also sent to the Member Secretary,
State Legal Services Authority, West Bengal for compliance.

Urgent Photostat certified copy of this judgment be made
available to the parties or their advocates on record expeditiously if
applied for following usual legal formalities.

I agree.

(SANKAR ACHARYYA, J.,)

(ANIRUDDHA BOSE, J.,)

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