Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 650 (GAU)

Ardul Rob @ Abdul Rouf v. State of Assam

2006-07-20

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. By the impugned judgment and order, dated 15.11.2003, passed, in Sessions Case No. 95 of 2002, the learned Sessions Judge, Morigaon, has convicted the accused-appellant under Section 376(g) IPC and sentenced him to undergo rigorous imprisonment for five years and pay fine of Rs, 2,000 and, in default of payment of fine, suffer rigorous imprisonment for a further period of two months. 2. Because of the peculiarity of the circumstances, whereunder the present appeal has come to be preferred by the accused-appellant, necessary it is that the events, leading to the present appeal, be set out chronologically. The material facts and various stages, which have led to the passing of the impugned judgment, may, therefore, be noted as follows: (i) A written Ejahar was filed at Jagiroad Police Station, on 22.10.1999, by the complainant (since deceased and is, hereinafter, referred to as 'S') alleging, inter alia, that on the previous night i.e., on 21.10.99, accused Jamaluddin, Abdul Rob (i.e., the present accused-appellant) and Boka @ Ajit Roy had forcibly entered into the house of the-complainant and committed gang rape on her. Based on this Ejahar and treating the same as the FIR, Jagiroad Police Station case No. 125/91 under Sections 376/34 IPC was registered against the three persons, who were named as accused by the informant. During the course of investigation of the case, while accused Jamaluddin and accused Boka were arrested and produced before the Chief Judicial Magistrate, Morigaon, the remaining accused, namely, accused Abdul Rob (i.e., the present appellant) was not arrested. On completion of the investigation, police submitted charge-sheet, on 23.6.1994, showing the present accused-appellant as absconder. The Chief Judicial Magistrate, Morigaon, then, issued warrant of arrest and also warrant of Proclamation and Attachment against the accused-appellant; but the same could not be executed whereupon the police officer, who was responsible for execution of the warrant of arrest and also the warrant of Proclamation and Attachment aforementioned, was examined by the Chief Judicial Magistrate on 15.3.1995. On being satisfied that the accused-appellant had absconded and he could not be apprehended, the Chief Judicial Magistrate passed an order, on 15.3.1995, declaring the present accused-appellant as an absconder. However, on appearance of accused Jamaluddin, the case was committed to the court of Sessions for trial. The Sessions Case No. 42/99 came to be accordingly registered for trial. On being satisfied that the accused-appellant had absconded and he could not be apprehended, the Chief Judicial Magistrate passed an order, on 15.3.1995, declaring the present accused-appellant as an absconder. However, on appearance of accused Jamaluddin, the case was committed to the court of Sessions for trial. The Sessions Case No. 42/99 came to be accordingly registered for trial. (ii) By the order, dated 26.2.1996, passed, in Sessions Case No.42/95, the learned Sessions Judge, having held accused Abdul Rob (i.e., the present accused-appellant) and Boka Roy (since deceased) as absconders, decided to proceed with the trial of accused Jamaluddin. A charge against accused Jamaluddin was accordingly framed under Section 376 IPC. To the charge, so framed, accused Jamaluddin pleaded not guilty. The trial, therefore, proceeded and culminated in the judgment and order, dated 23.7.1997, whereby the learned Sessions Judge, having held accused Jamaluddin guilty of the offence charged with under Section 376 IPC, convicted him accordingly and sentenced him to undergo rigorous imprisonment for five years with fine of Rs. 2,000 and, in default of payment of fine, suffer rigorous imprisonment for a further period of two months. Aggrieved by his conviction and the sentence passed against him, accused Jamaluddin preferred an appeal, which came to be registered as Criminal Appeal No. 120A/98. By judgment and order, dated 22.7.1997, passed, in Criminal Appeal No. 120A/98, the High Court dismissed the appeal and it was, thereafter, that the present accused-appellant was apprehended and produced before the Chief Judicial Magistrate, Morigaon. (iii) In course of time, the present accused-appellant was committed to the court of Sessions for trial. Based on this order of committal, Sessions Case No. 95/2002 was registered. On 24.1.2003, charges under Sections 457 and 376(g) of the IPC were framed against the present accused-appellant. To the charges, so framed, the accused-appellant pleaded not guilty and the trial proceeded. The learned trial Court, on 13.04.2003, examined one witness for prosecution, namely, Durjodhan Biswas, a neighbour of the prosecutrix, who deposed, inter alia, that the prosecutrix had died about a year ago. The defence declined to cross-examine this witness. To the charges, so framed, the accused-appellant pleaded not guilty and the trial proceeded. The learned trial Court, on 13.04.2003, examined one witness for prosecution, namely, Durjodhan Biswas, a neighbour of the prosecutrix, who deposed, inter alia, that the prosecutrix had died about a year ago. The defence declined to cross-examine this witness. Thereafter, when the case came up before the learned trial court on 3.5.2003, the learned Public Prosecutor, on having confirmed that the informant, who was the victim, had died, filed a petition praying for applying the provisions of Section 299 Cr.P.C. to the trial of the present accused-appellant and to consider, against the present accused-appellant, the evidence, which had been recorded at the trial of accused Jamaluddin. On hearing the learned Public Prosecutor and also the learned Counsel for the present accused-appellant on the said petition, the learned Sessions Judge passed an order on 28.7.2003, permitting the prosecution and produce the evidence recorded in the earlier trial. This order, dated 28.7.2003, came to be impugned, in revision, by the present accused-appellant. This revision gave rise to Criminal Revision No. 550 of 2003. (iv) As the revision was not admitted and no order of stay was passed therein, the learned trial court proceeded with the trial and examined yet another witness on 22.9.2003 and brought, on record, the evidence already recorded in the trial of accused Jamaluddin. Thereafter, as the case of the prosecution stood closed on 22.9.2003, the learned trial court fixed 28.10.2003 for examining the present accused-appellant under Section 313Cr.P.C. and it accordingly recorded the statement of the present accused-appellant on 28.10.2003. 3. As the accused declined to adduce evidence, the learned trial court heard the arguments of both sides and pronounced the judgment and order, dated 15.11.2003, which, now, stand impugned in the present appeal. 4. It may, now, be noted that having found no merit in the revision, the same was dismissed by this Court by the judgment and order, dated 27.5.2006. The reasons recorded for dismissing the revision are of some relevance and, hence, the relevant portion of the decision, in the revision, are quoted hereinbelow: 8. While considering the present revision, what needs to be noted is that the order, dated 15.3.1995, aforementioned, whereby the accused-petitioner was declared absconder by the Chief Judicial Magistrate, Morigaon, has never been challenged by the accused-petitioner. While considering the present revision, what needs to be noted is that the order, dated 15.3.1995, aforementioned, whereby the accused-petitioner was declared absconder by the Chief Judicial Magistrate, Morigaon, has never been challenged by the accused-petitioner. This apart, even the order, dated 26.2.1996, whereby the learned Sessions Judge decided to proceed with the trial of accused Jamaluddin by declaring the present accused-petitioner as absconder has also not been challenged. 9. Since it is the application of Section 299 Cr.P.C. which is under challenge in the present revision, it is apposite to take note of the provisions of Section 299, which, it may be noted, reads as follows: 299. Record of evidence in absence of accused (1). If it is proved that an accused person has absconded, and that there is no immediate prospects of arresting him, the court competent to try (or commit for trial) such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such depositions may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the 1st Class shall hold inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India. 10. From a careful reading of Sub-section (1) of Section 299 Cr.P.C. what becomes transparent is that in the absence of an accused, the recording of evidence of witnesses produced on behalf of the prosecution, is not possible unless it is proved that the accused has absconded and there is no immediate prospect of his being arrested. 10. From a careful reading of Sub-section (1) of Section 299 Cr.P.C. what becomes transparent is that in the absence of an accused, the recording of evidence of witnesses produced on behalf of the prosecution, is not possible unless it is proved that the accused has absconded and there is no immediate prospect of his being arrested. Thus, the decision to proceed in the absence of an accused and record evidence of the witnesses produced by the prosecution has to be taken before any witness is examined in the absence of the accused concerned. Section 299 Cr.P.C. is an exception to the general principle, embodied in Section 33 of the Evidence Act, that the evidence of a witness, where a party had no right or opportunity to cross-examine is not admissible against such a party. Before the rigour of Section 299 Cr.P.C. are applied and I or availed of, the conditions precedent prescribed for taking resort to Section 299 Cr.P.C. must be satisfied. 11. In the case at hand, it was on 26.2.1996 that the learned Sessions Judge had decided to proceed, in the absence of the present accused-petitioner, with the trial of the co-accused, namely, Jamaluddin. The decision taken by the learned Sessions Judge, on 22.6.1996, to proceed with the trial, in the absence of the accused, has remained unchallenged and is, in fact, not under challenge even in the present revision. 12. In the face of the facts, noticed above, it cannot be held that recording of the evidence of the prosecution witnesses in the absence of the present accused petitioner was not in accordance with law and/or incorrect or improper. This apart, what can also be not ignored is that the trial of accused Jamaluddin commenced with the framing of the charge on 26.2.1996 and culminated into his conviction by judgment and order, dated 23.7.1997. The present accused-petitioner was arrested on 17.4.2001 and, then, produced before the Chief Judicial Magistrate, Morigaon. After his arrest, the accused-petitioner has made several petitions seeking to be enlarged on bail. One of the primary conditions before an accused can be released on bail is that the court has to be reasonably assured that the presence of the accused would be available for his trial. After his arrest, the accused-petitioner has made several petitions seeking to be enlarged on bail. One of the primary conditions before an accused can be released on bail is that the court has to be reasonably assured that the presence of the accused would be available for his trial. It is, therefore, clear that held the present accused-petitioner not absconded, nothing stopped from bringing to the notice of the court, when he was produced on being arrested, that he had not been an absconder and/or that he was unaware of the case pending against him. What can also not be ignored is that the PIR mentions the name of the present accused-petitioner as one of the persons, who had allegedly committed rape on the prosecutrix indicating thereby that irrespective of the fact as to whether the accused-petitioner is or is not guilty, he was, according to the prosecutrix, known to the prosecutrix. As a matter of fact, even the accused-petitioner, while seeking bail, did not dispute the fact that he was not known to the prosecutrix; he also did not assert that he was unaware of the existence of the case lodged against him nor did he assert that he had not absconded. 13. In the circumstances, as indicated hereinabove, it is clear that the learned trial court had sufficient reasons to proceed in the absence of the accused-petitioner and the evidence recorded in his absence can be made use of under Section 299 Cr.P.C. if the witness, whose evidence is sought to be given, is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any amount of delay, expenses or inconvenience, which under the circumstance of a given case, the court considers as unreasonable. In the case at hand, I have already indicated that the examination of the witnesses produced by the prosecution and recording of their depositions in terms of the order, dated 26.2.1996, at the trial of co-accused Jamaluddin, do not suffer-from any infirmity of law nor is the same, in fact, under challenge in the present revision. When the order, dated 26.2.1996, remains unchallenged, the effect is that the conditions precedent for recording, in the absence of the accused-petitioner, the depositions of the witnesses produced by the prosecution did stand satisfied. When the order, dated 26.2.1996, remains unchallenged, the effect is that the conditions precedent for recording, in the absence of the accused-petitioner, the depositions of the witnesses produced by the prosecution did stand satisfied. To put it differently, the recording of the depositions, in the absence of the present accused-petitioner, in the trial of the co-accused Jamaluddin, was perfectly legal. The only question, therefore, which arises for consideration is as to whether the evidence, so recorded at the trial of accused Jamaluddin, could have been introduced, and relied upon, as the evidence in the trial of the present accused-petitioner? 14. While considering the above aspect of the matter, what is pertinent to note is that ordinarily, evidence is recorded, in a criminal trial, in the presence of the accused. When an accused absconds and the court is satisfied that there is no immediate prospect of the accused being arrested, the court, which is competent to try such an accused, may, in his absence, examine the witnesses produced on behalf of the prosecution. Thus, recording of evidence in the absence of an accused, as envisaged under Section 299 Cr.P.C. is an exception to the general rule that evidence, in a criminal trial, shall be recorded in the presence of the accused concerned. When an accused absconds; the law permits recording of the evidence even in the absence of the accused in respect of the accusation, which is levelled against the accused. When the accused absconds, he cannot escape, from the legal consequences, which ensue his abscondence. That is the momentous effect, which Section 299 Cr.P.C. has on the subsequent stage of the trial and the accused, who absconds, has to bear. 15. The object of Section 299 Cr.P.C. is to enable the court to use the evidence given against an accused in his absence if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which, under the circumstances of the case, would be, in the considered view of the court, unreasonable. 16. In the case at hand, it may be pointed out that PW1, who has been examined, in the present trial, on 30.4.2003, was already examined at the previous trial. 16. In the case at hand, it may be pointed out that PW1, who has been examined, in the present trial, on 30.4.2003, was already examined at the previous trial. As the informant/prosecutrix died, there was no impediment, on the part of the learned trial court, to allow the evidence of the prosecutrix, recorded in the previous trial, to be introduced as evidence in the trial of the present accused-petitioner. The other two witnesses, whose evidence prosecution sought to introduce, is the evidence of the doctor and the Investigating Officer. The evidence of these two witnesses has already been brought on record. At the time of hearing of this revision, nothing could be pointed out, on behalf of the accused-petitioner, to show as to how the depositions of the doctor and the Investigating Officer have prejudicially affected the accused, for, these two witnesses have given no incriminating evidence against the present accused-petitioner. This apart, the learned trial court was also correct in concluding that bringing of the witnesses, whose depositions had already been recorded at the earlier trial, would delay the proceedings of the trial and also prove expensive. In the facts and circumstances of the present case, taking of recourse to Section 299 Cr.P.C. by the learned trial court cannot be said to be suffering from any infirmity, legal or factual. 17. Because of what have been discussed and pointed out above, I find no merit in the present revision and no reason to admit the same and/or allow the same. This revision is, therefore, not admitted and the same shall accordingly stand dismissed. (emphasis is supplied) 5. It is in the backdrop of the above facts and circumstances that the present appeal, now, needs to be considered. 6. I have heard Mr. M.U. Mahmood, learned Counsel for the accused-appellant, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam, appearing on behalf of the respondents. 7. In consequence of the dismissal of the revision, it is not contended, on behalf of the accused-appellant, at the time of the hearing of the present appeal, that the learned court below ought not to have relied upon the evidence of the prosecutrix and the doctor, which had been recorded, at the trial of accused Jamaluddin, but in the absence of the present accused-appellant. 8. 8. Bearing in mind what has been indicated above, when I turn to the evidence on record brought against the present accused-appellant, I notice, as already indicated hereinabove, that the learned trial court examined two witnesses, namely, Durjodhan Biswas (PW 1) and Ratul Hazarika (PW 2), an Assistant in the office of the Sessions Judge, Morigaon, and, then, brought on record, inter alia, the evidence of the alleged victim, namely, 'S' (since deceased) and the evidence of Dr. H. Sarma, whose evidence already stood recorded in the previous trial of accused Jamaluddin. 9. Let me, first, deal with the evidence of 'S', the alleged victim of gang rape. According to the evidence of 'S' on the day of the occurrence, at about 7.00 PM, after having her meals, she was sleeping with her two minor children at her house and her husband was away from home. 'S' has deposed that when she was so asleep with her children, accused Jamaluddin, Abdul Rout, (i.e., the present accused), Boka Dey and one unknown person entered into her house by opening the door of her house and caught hold of her hands and legs and gagged her mouth and, then, all of them forcibly had sexual intercourse with her, the first among these accused, who forcibly had sexual intercourse with her, being Jamaluddin and he was followed by accused Abdul Rout (the present accused-appellant) and, then, accused Boka and accused Boka Dey having been followed by the person, who was not known to 'S'. This witness ('S') has also deposed that accused Jamaluddin committed sexual intercourse with her twice and that she was subjected to rape for about one-and-half hours from about 7 pm to 8 pm. It is in the evidence of 'S' that after the rapists had left, she raised hue and cry and on hearing the same, her neighbours, namely, Biswa Das and Brinda came and she reported to them about the occurrence. 'S' has further deposed that she asked her co-villagers to hold a 'bichar' (i.e., sitting of co-villagers for settlement of dispute or for awarding punishment), but her co-villagers suggested to her that she should inform the police and accordingly she informed the police by lodging an FIR with the police and the police got her medically examined at Guwahati. 'S' has further deposed that she asked her co-villagers to hold a 'bichar' (i.e., sitting of co-villagers for settlement of dispute or for awarding punishment), but her co-villagers suggested to her that she should inform the police and accordingly she informed the police by lodging an FIR with the police and the police got her medically examined at Guwahati. There is no dispute before me, I must hasten to add, that the FIR was lodged on the very next day of the alleged occurrence. 10. What is, now, of immense importance to note is that in her cross-examination, 'S' has clarified that the rapists used to pass through her village and she knew them and, in fact, she used to address accused Jamaluddin as an elder brother. In her cross-examination, 'S' has further clarified that her two children had raised hue and cry, but when the miscreants intimidated them, her children became silent. 11. On a close scrutiny of the cross-examination of 'S', I do not find that the defence could elicit anything at all to show that her evidence was not worthy of trust and belief. Far from this, her assertions that except one of the persons, all those, who had committed rape on her, were known to her remained undisputed. It was also worth noticing that 'S's assertion, at the trial, that on the day of the occurrence, her children had, initially, raised hue and cry, but when they were intimidated, they became silent was not even disputed by the defence. 12. Coupled with the above, the evidence given by 'S' that after the miscreants had left her house, she raised hue and cry and her neighbours Biswa Das and Brinda came there and she reported to them about the occurrence remained unchallenged by the defence. In this context, it is also of great significance to note that Durjodhan Biswas (PW 1), who was examined, at the trial of the present accused-appellant, deposed that on the night of the occurrence, he did not know about the occurrence, but on the next day morning, 'S' reported to him that about 4/5 persons, including Jamaluddin, had gagged her and committed sexual intercourse with her, but as she had been gagged, she could not raise hallah. The present accused-appellant declined to cross-examine PW 1. The present accused-appellant declined to cross-examine PW 1. Hence, the fact that 'S' did report to, amongst others, PW 1 too that she had been gagged and subjected to rape on the previous night remains unchallenged by the defence. 13. I may also hasten to point out, at this stage, that it is not the case of the present appellant that he had not known, or had no association with, accused Jamaluddin nor is it the case of the present appellant that he (i.e., this accused appellant) was not known to 'S'. 14. The limited question, therefore, which remains to be determined is as to whether the occurrence of rape, as alleged by 'S', was true and whether the present appellant was one of the persons, who had committed rape on her. In this regard, I may mention that it has been pointed out by Mr. Mahmood, learned Counsel for the accused-appellant, that according to the evidence of 'S', her neighbours were awake and if it were so, they would have known about the occurrence if the occurrence, as alleged by 'S' were true. While considering this aspect of the case, it is important to recall that I have already pointed out that according to the evidence of 'S' it was because of the reason that she had been gagged and her mouth had been tied that she could not cry out for help. This assertion of 'S' receives, I notice, substantial support from the medical evidence on record inasmuch as the doctor, on examining the victim, 'S', on 23.10.1991, found, as the evidence of PW 6 reveals, tenderness present on both the cheeks and lips of 'S'. 15. Thus, even after two days of the occurrence, tenderness on 'S's cheeks and lips were found present by the doctor. In the face of such medical evidence, which is not under challenge in the present appeal, 'S's assertion as to why she could not cry out for help cannot be said to have not been convincingly explained. 15. Thus, even after two days of the occurrence, tenderness on 'S's cheeks and lips were found present by the doctor. In the face of such medical evidence, which is not under challenge in the present appeal, 'S's assertion as to why she could not cry out for help cannot be said to have not been convincingly explained. I may, however, pause here to clarify that though I notice that the learned trial court has observed, in the impugned judgment, that according the evidence of 'S', her hands and legs were tied, I find that this observation is rot correct inasmuch as according to the evidence of 'S', the miscreants, who had entered into her house, caught hold of her hands and legs and, then, gagged her. Since the hands and legs of 'S' were not tied, it was natural that when she was medically examined after 2 days of the occurrence, no injury was found on her wrists and legs. In fact, nothing has been elicited from the cross-examination of 'S' to show that she had sustained any injury on her wrists and legs. Moreover, if I may reiterate, her evidence that her children, initially, raised hue and cry, but were intimidated by the miscreants and fell silent have also gone unchallenged and undisputed by the defence. 16. In short, the entire evidence given by 'S', describing the occurrence, has remained unshaken in all material particulars and when her evidence receives, to some extent, corroboration, as indicated hereinabove, from the medical evidence on record, I see no reason not to treat the evidence of 'S' as the evidence of a wholly reliable witness, particularly, when there is no strained relation or enmity existing between 'S' on the one hand, and accused Jamal Uddin, Abdul Rout (i.e., the present appellant) and Boka Dey, on the other. 17. While considering the evidence of 'S', it is important to bear in mind that a prosecutrix does not stand on the same footing as does an accomplice. Hence, her evidence does not need corroboration. If her evidence is found believable and trustworthy, no further corroboration may be insisted. See State of HP v. Lekh Raj and Anr. reported in 2000 CriLJ 44. Hence, her evidence does not need corroboration. If her evidence is found believable and trustworthy, no further corroboration may be insisted. See State of HP v. Lekh Raj and Anr. reported in 2000 CriLJ 44. Clarified the Supreme Court, in State of Punjab v. Gurmit Singh reported in 1996 CriLJ 1728, that if the evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars and, if for some reason, the court finds it difficult to place implicit reliance on her testimony, it may look for evidence, which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. Further observed the Supreme Court, in Gurmit Singh (supra), that the testimony of a prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive, while dealing with cases involving sexual molestations. 18. Referring to State of Maharastra v. Chandraprakash Kewalchand Jain reported in 1990 CriLJ 889, the Supreme Court, in Gurmit Singh (supra) held, "The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman comes forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In case involving sexual molestation supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such, which are fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bash fulness of the females and the tendency to conceal outrage of sexual aggression are factors, which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury." 19. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury." 19. In the present case, as already indicated hereinabove, there is no delay in lodging of the FIR or in reporting of the occurrence to her neighbours by the prosecutrix. This apart, there was, admittedly, no animosity existing between the accused and the victim, 'S'. There is also no reason as to why 'S', being a married woman with two minor children would make false accusation of gang rape on her and implicate the present accused-appellant with whom she had no animosity and put herself to the humiliation, which a married woman, in such circumstances, in Our country, suffers. 20. I may, now, point out that it has been agitated, on behalf of the present accused-appellant, that his examination under Section 313 Cr.P.C. was imperfect inasmuch as incriminating pieces of evidence, which have been relied upon by the learned trial court, were not put to the accused-appellant at the time, when he was examined under Section 313 Cr.P.C. 21. While considering the above aspect of the case, it may, be noted that since the perusal of the record revealed that all the incriminating pieces of the evidence given by the prosecution witnesses had not been put to the appellant, when he was being examined under Section 313 Cr.P.C. I have, in keeping with the guidelines issued, in this regard, by the Apex Court, in State Delhi Administration v. Dharam Paul 2001 CriLJ 4748, have called upon the learned Counsel for the appellant to say if the appellant has any comments/explanation to offer on the evidence given by the prosecution witnesses, particularly, 'S', her neighbours and the doctor. However, learned Counsel for the appellant has clearly submitted that the appellant has no specific comments/explanation to offer on the evidence given by these witnesses. Thus, though all the incriminating pieces of the evidence on record had not been put to the appellant by the learned trial court, as indicated hereinbefore, it clearly transpires that the appellant has no explanation comments to offer on the various incriminating pieces of evidence emerging against him. It, therefore, logically follows that the omission to put all the incriminating pieces of evidence on record to the appellant by the learned trial court has not caused any prejudice to him. It, therefore, logically follows that the omission to put all the incriminating pieces of evidence on record to the appellant by the learned trial court has not caused any prejudice to him. It may also be noted that neither in the trial court nor in this appellate court, any grievance of prejudice has been expressed by the appellant for not giving him specific opportunity to offer his comments on, or explanation to, the evidence given by prosecution witnesses. The omission to put the relevant questions, in this regard, to the appellant by the learned trial court can, therefore, be safely ignored. See State of Punjab v. Naib Din reported in 2001 CriLJ 4656, and Mohan Sharma v. State of Assam reported in 2003 (1) GLT 135. 22. What emerges from the above discussion is that apart from the fact that the evidence of the prosecutrix, having remained unshaken in materials particulars, inspires confidence and could have been safely relied upon, the medical and other evidence on record lend assurance to the evidence given by the prosecutrix. I, therefore, see no reason for not treating the prosecutrix's evidence as true, correct and reliable. Situated, thus, I have no hesitation in holding that the prosecution has proved their case beyond reasonable doubt against the present accused-appellant. The conviction of the accused-appellant does not, therefore, call for any interference. 23. Turning to the question of sentence passed against the accused-appellant, it may be pointed out that gang rape is one of the worst forms of crimes against women and the sentence imposed on a person, who is proved guilty of such a dastardly offence, must be awarded such a punishment, which conveys the society's complete disapproval and abhorrence to such crimes. The present one is not merely a case of gang rape, but a gang rape of a woman in the presence and hearing of her own children. The trauma and mental shock, which the prosecutrix and her two innocent children must have undergone, is a relevant aggravating factor, which the court could not have ignored. Viewed thus, it is clear that in the facts and circumstances of the present case/the sentence, imposed on the accused-appellant, is not at all harsh, unreasonable or excessive. The impugned sentence too, therefore, does not need interference in appeal. 24. Viewed thus, it is clear that in the facts and circumstances of the present case/the sentence, imposed on the accused-appellant, is not at all harsh, unreasonable or excessive. The impugned sentence too, therefore, does not need interference in appeal. 24. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed. 25. Send back the LCRs. Appeal dismissed.